The loss in law amounts to a partial disability and is compensable as such even though in fact no diminution of earning power has resulted. Aetna Casualty Surety Co. v. Moore, Tex.Sup., 361 S.W.2d 183, Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926, Texas Employers Ins. Ass'n v. Thrash, Tex.Civ.App., 136 S.W.2d 905, 1. c. 907, wr. dism., judgm. cor.
When a law provides for compensation for the loss of an eye but does not specify a normal one, it may be concluded that it refers to an eye which performs in some degree the functions of a normal eye. Kraushar v. Cummins Construction Corp., 180 Md. 486; Purchase v. Grand Rapids Refrigerator Co., 194 Mich. 103. See Texas Employers Ins. Ass'n v. Thrash, (Tex.Civ.App.) 136 S.W.2d 905. There is no case in this state which throws any light on the answer to this question under the New Hampshire law.
The injury suffered by claimant having been confined to the right leg, recovery is limited to benefits scheduled for loss or partial loss of use of the leg. Corniak v. Cohen, 150 Pa. Super. 140, 27 A.2d 560; Hlady v. Wolverine Bolt Co., 325 Mich. 23, 37 N.W.2d 576; J.W. Jackson Realty Co. v. Herzberger, 111 Ind. App. 432, 40 N.E.2d 379; Kajundzich v. State Industrial Acc. Comm., 164 Oregon 510, 102 P.2d 924; Lappinen v. Union Ore Co., 224 Minn. 395, 29 N.W.2d 8; McCullough v. Southwestern Bell Tel. Co., 155 Kan. 629, 127 P.2d 467; Morgan v. Standard Acc. Ins. Co. (La.), 51 So.2d 107; M.T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So.2d 300; National Tank Co. v. Gold, 185 Okla. 574, 95 P.2d 235; Raffrael v. Oneida Bleachery, 116 N.Y. Supp.2d 760; Schell v. Central Engineering Co. (Iowa), 4 N.W.2d 399, 143 A.L.R. 576; Smith v. Industrial Comm. of Arizona, 69 Ariz. 399, 214 P.2d 797; Texas Employer's Ins. Assn. v. Thrash (Tex.), 136 S.W.2d 905; Malone's Louisiana Workmen's Comp. Law Pr., Chap. 13. II.
The statutes quoted were adopted practically verbatim from the laws of Colorado, but we do not find from our research that either subsection c or d has been construed by the Supreme Court of that state. But similar statutes of other states have been construed in the following cases: Franklin v. Floria Co., La. App., 158 So. 591; Ricks v. Crowell Spencer Lbr. Co., La. App., 189 So. 466; Modin v. City Land Co., 189 Minn. 517, 520, 250 N.W. 73; Ferch v. Great Atlantic Pacific Tea Co., 208 Minn. 9, 292 N.W. 424; Bennett v. Fertig, 162 A. 95, 10 N.J. Misc. 1021; Jensen v. Atlantic Refining Co., 262 Pa. 374, 105 A. 545; Romig v. Champion, etc., Co., 315 Pa. 97, 172 A. 293; Texas Employers Ins. Ass'n v. Thrash, Tex.Civ.App., 136 S.W.2d 905; Texas Employers' Ins. Ass'n v. Peppers, Tex.Civ.App., 133 S.W.2d 165; American Smelting Refining Co. v. Industrial Comm., 92 Utah 444, 69 P.2d 271; Royal Canning Corp. v. Industrial Comm., 101 Utah 323, 121 P.2d 406; Shuttleworth v. Interstate Power Co., 217 Iowa 398, 251 N.W. 727; Truax-Traer Coal Co. v. Industrial Comm., 362 Ill. 75, 199 N.E. 113; Chatfield v. Jellico Coal Min. Co., 205 Ky. 415, 265 S.W. 943; Black Mountain Corp. v. Adkins, 280 Ky. 617, 133 S.W.2d 900; Benito Min. Co. v. Girdner, 271 Ky. 87, 111 S.W.2d 571; Baker v. Western Power Light Co., 147 Kan. 571, 78 P.2d 36; Morris v. Garden City Co., 144 Kan. 790, 62 P.2d 920. In none of these cases has a similar formula been rejected upon a theory of unfairness.
In cases involving part-time employees, courts have held that the employee is compensated not for loss of earnings, but for loss of earning capacity at a wage rate based on his or her capacity to earn when employed on a full-time basis. Texas Employers Insurance Association v. Clack, 134 Tex. 151, 132 S.W.2d 399 (1939); Lubbock Independent School District v. Bradley, 579 S.W.2d 78 (Tex.Civ.App.-Amarillo 1979, writ ref'd n.r.e.). Texas Employers Insurance Association v. Thrash, 136 S.W.2d 905 (Tex.Civ.App. — El Paso 1940, writ dism'd judgmt. cor.); Maryland Casualty Co. v. Drummond, 114 S.W.2d 356 (Tex.Civ.App. — Beaumont 1938, writ ref'd). Further, the fact that an employee is permitted to work only part of a day on certain days will not authorize the counting of part days as whole days, thereby reducing his average daily wage. Texas Employers' Insurance Association v. Long, 180 S.W.2d 629 (Tex.Civ.App.-Austin 1944, writ ref'd w.o.m.).
Argonaut Insurance Company v. Newman, 361 S.W.2d 871, 874 (Tex. 1962); Texas Employers Insurance Association v. Wilson, 522 S.W.2d 192 (Tex. 1975). As this Court explained it as early as 1940 in Texas Employers Ins. Ass'n v. Thrash, 136 S.W.2d 905 (Tex.Civ.App.-El Paso 1940, dism.judgm.cor.): If Plaintiff's injuries were specific it is immaterial the extent to which they cause a diminution of his capacity to labor.
However, the appellant and the appellee were and are in agreement that the case was tried throughout on a heart attack theory rather than on the theory of a general injury death and it must be assumed that the jury read the charge as a whole and interpreted the language used in light of the evidence introduced by the parties. Texas Employers Ins. Ass'n. v. Thrash, 136 S.W.2d 905, 907 (Tex.Civ.App. El Paso 1940, writ dism'd jdgmt. cor.). Yet, appellant insists that general workers' compensation issues are not appropriate in a heart attack case and asserts that the only proper method is as suggested by 2 Texas Pattern Jury Charges 29.02, 29.04 and 29.05. In doing so, the case of Continental Insurance Company v. Marshall, 506 S.W.2d 913, 917 (Tex.Civ.App. El Paso 1974, no writ), and several others are cited. It is true that these cases do approve the use of the alternative issues for heart attack cases, but neither of the cited cases required their use and no case has been cited or found that requires these issues to be used. It is not generally necessary for the special issues to describe the injury or injuries relied upon, the ultimate issues in a general injury case being only whether or not the claimant received an injury in the course of his employment which was a producing cause of disability or death. Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280, 284 (1942); Maston v. Texas Employers' Insu
The judgment entered is not questioned on other ground. No case has been found in which the precise confrontation of issues here discussed has been before a Texas court, but decision here is consonant with such cases as: Brown v. Transamerica Insurance Company, 416 S.W.2d 902 (Tex.Civ.App. Tyler 1967, no writ); Aetna Casualty Surety Company v. Moore, 361 S.W.2d 183 (Tex.Sup. 1962); Federal Underwriter's Exchange v. Simpson, 137 S.W.2d 132 (Tex.Civ.App. Austin 1940, no writ); Petroleum Casualty Co. v. Seale, 13 S.W.2d 364 (Tex.Comm.App. 1929, approved by Sup.Ct.); Russell v. United Employers Casualty Co., 158 S.W.2d 575 (Tex.Civ.App. Texarkana 1941, writ ref'd, w.o.m.); Ferrell v. Texas Employers' Ins. Ass'n., 194 S.W.2d 585 (Tex.Civ.App. Dallas 1946, no writ); Texas Employers' Ins. Ass'n. v. Thrash, 136 S.W.2d 905 (Tex.Civ.App. El Paso 1940, writ dism"d, judgment cor.); Texas Employers' Insurance Ass'n. v. Hinkle, 308 S.W.2d 543 (Tex.Civ.App. El Paso 1957, writ ref'd, n.r.e); Sanchez v. Texas General Indemnity Company, 392 S.W.2d 222 (Tex.Civ.App. San Antonio 1965, writ ref'd, n.r.e.); Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651 (1952). The cases upon this subject cited and relied upon by the appellant have been considered and are regarded as either distinguishable or unsound as precedents, and therefore, are not followed.
The only provisions pertaining to a specific injury to the eye are found in Section 12, which classifies a specific injury to the eye as one 'For the total and permanent loss of the sight of one (1) eye' or as one 'For the loss of any eye' and a foot, or a hand, or a leg above the knee, or an arm above the elbow. Thus, the statute specifying what constitutes specific injuries to the eye, it follows that any other injuries to the eye, or eyes, would not constitute a specific injury. Texas Employers Ins. Ass'n v. Thrash, 136 S.W.2d 905 (Tex.Civ.App. — El Paso 1940, writ dism'd jdgmt. cor.). In the case before us appellee did not allege or attempt to prove the loss of sight of any eye, or the loss of an eye coupled with another specific member of the body, and Section 12 of Article 8306, V.A.T.S., is not applicable to this situation.
Howell was around March 14, 1967, and Dr. Howell later removed the eye. Since there is evidence that appellant had some usable vision before the accident on December 20, if that was the only issue involved, we think he would be entitled to recover the amount provided for in Sec. 12, Art. 8306, R.C.S. It is stated in Texas Employers Insurance Assoc. v. Thrash, 136 S.W.2d 905 (Tex.Civ.App., writ dism'd) as follows: "If at the time of the accidental injury to plaintiff's right eye he had therein any useable vision we think he would be entitled to recover the amount provided in Section 12 of the Article above cited for the total and permanent loss of the sight of his right eye.