165 Ga. 771 | Ga. | 1928
Reduced to their last analysis, the questions presented by the record in this certiorari are only two in number. The first involves the proper construction of the language employed in section 34 of the Georgia workmen’s compensation act (Ga. L. 1920, p. 167) on page 186. The second question is raised by the contention presented in the petition for certiorari, that the courts upon appeal can consider and review only the adequacy or inadequacy of the amount awarded in case of a compensable injury when and after the Industrial Commission has determined as a matter of fact the degree of incapacity which has resulted from the injury for which the employer is liable.
Section 34 of the workmen’s compensation act provides: “That-if an employee who suffers an injury in his employment has a permanent disability or has sustained a permanent injury, such as is specified in section 32, suffered elsewhere, he shall be entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the early disability or injury had not existed.” Section 32 contains a schedule of payments to be made in lieu of all other compensation for injuries to various members of the human body. It is not necessary to recapitulate the specified injuries contained in the section, for it suffices to say that in subsection (o) it is provided: “For the loss of a leg, fifty per centum of the average weekly wages during one hundred and seventy-five weeks,” and to note that the section concludes (embracing in this provision all the subsections) : “The weekly compensation payments referred to in this section shall be subject to the same limitations as to maximum and minimum as set out in section thirty.” Section 30 (Ga. L. 1920, p. 183) provides that where the incapacity to work resulting from the injury is total, the employer shall pay or. cause to be paid a weekly compensation equal to half his average wages, not more than $12 nor less than $6 per week, the period of compensation in no case to exceed 350 weeks. In 1922 (Ga. L. 1922, pp. 185, 190) this section was so amended as to make the weekly amount of compensation not more than $15 nor less than $4, except that where the weekly wage was below $4 the regular wages are to be paid. In the case sub judice the judge of the superior court rendered a judgment
We find, from an examination of the opinion of the trial judge, that his finding is based upon the assumption that the wages the employee was receiving at the time of his injury are assumed to have been fixed after consideration of the fact that he had received a prior injury when only about eight years of age, as a result of which he lost the lower portion of his right leg up to within three inches below the knee-joint. Both the judge of the superior court and the Court of Appeals assumed that the wages the employee was receiving had been adjusted to his condition as a man who had only one leg, and provided compensation as if he were a man with two legs; and the plaintiffs in error, now petitioners in certiorari, complain that this finding places upon the employer the burden of compensating the employee for an injury received, not while in his present employment, but years before he was ever employed. It is very plain that the controversy between the parties in this case hinges on the meaning of the provision in the conclusion of section 34, supra, that the employee “shall be entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the -early disability or injury had not existed.” The Court of Appeals •construed these words to mean that an employee who receives an injury to a leg which before his employment had-been amputated to a point within three inches below the knee shall be compensated just as if he had two legs. It was said in the opinion (35 Ga. App. 772, 774, 135 S. E. 103) : “In other words, section 34 has nothing to do with the particular provision by which the compensation will be determined, but simply means that whatever capacity a man has after some other accident, misfortune, or injury, shall ordinarily be considered as the unit from which to determine the percentage of his subsequent impairment. The claim
On the other hand, the employer contends that by the provisions of section 34, giving due force to the word “only,” the General Assembly intended to make an exception with reference to employers, by saying that an employee who had already sustained a permanent injury in a former and different employment should not recover compensation for the prior loss from one who was in no way chargeable therewith. It is strongly insisted, that, unless the language of section 34 now under consideration be thus construed, employers will be subjected to the burden of compensating maimed or injured employees for accidents and injuries previously suffered by them, and in consequence of such a construction and in the exercise of ordinary business prudence persons who have suffered such injuries will be deprived of the opportunity of obtaining employment; and that the legislature had these considerations in mind at the time of the passage of the act in declaring that one thus injured is “entitled to compensation only for the degree of incapacity which would have resulted from the later accident,” giving the words, “if the early disability or injury had not existed,” as a mere direction to the industrial commission and the courts to ascertain the degree of incapacity existing prior to the later injury, which should be taken into consideration and excluded from the award for the later injury by diminishing the later award in proportion to the diminished earning capacity which a maimed or injured workman may be shown to have, as compared with one who had suffered no injury and was in ordinary and normal condition. In other words, plaintiffs in certiorari
In the well-considered opinion of Judge Bell of the Court of Appeals, three cases from other jurisdictions are cited, and Corpus Juris, § 84, is referred to. It is pointed out, however, in the brief of counsel for the plaintiffs in error that by reason of an amendment to the workmen’s compensation act of NeAV York the case from that State, cited by the Court of Appeals, is no longer in point, since the New York Court of Appeals has now adopted the
It seems to us that the purpose of the legislature in the passage of section 34 was to make an exception to the measure of compensation provided in section 32 in instances where the use of a member of the body was not entirely lost, but was diminished, which did not fall under other provisions of the compensation , act by reason of the fact that'- the injured person had been previously injured. In other words, persons who have never been previously injured are placed in one class, and the provisions of the law are in the main applicable to them. Section 34 relates to a different class, those who may have been previously injured at a time different from the pending claim. Section 34 deals with nothing else. But the fact that the legislature has divided those who may have claims for injuries into two classes is not enough of itself to be conclusive; for it was within the power of the General Assembly to have declared that although one had been injured before, he might nevertheless obtain compensation as “if the early disability had not existed,” and this could be reasonably construed to mean that a man who had suffered the loss of only a portion of his leg might be compensated as if he had not been previously injured, and he would be entitled to compensation in the proportion that his incapacity to labor bore to the value of his services at the time of his last injury. However, it is our opinion that the use of the word “only” indicates that it was the purpose of the legislature to protect employers against liability to compensate an employee who had been previously injured, and not the intention of the General Assembly by the enactment of section 34'to provide a means by which an employee who had been injured at some previous time might collect compensation just as if he had never been injured or a previous disability had never existed, and thereby receive compensation just as if the prior injury had never been sustained. To hold that the defendant in error may be treated as if he were a two-legged man in determining the value of the loss of use of a portion of a leg would be to leave out of consideration and completely obliterate the fact that he had been somewhat injured in a previous accident for which the employer was not responsible; and if this is the true law, the enactment of section 34 was, in our opinion, a useless formality, and certainly ineffective to prevent a later
What is the duty of the industrial commission under the terms of section 34 ? Clearly, to ascertain the fact whether the applicant has received a prior permanent injury, for the reason that the section declares that he shall “be entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the early disability or injury had not existed.” This separates from everything else in the case the question as to what was the precise amount of compensable injury accruing to the claimant by reason of the only injury for which the employer cau justly be held responsible. It being declared that it shall be thus separated, how can the quantum of compensation be ascertained? Clearly, the circumstances of the injured employee’s case comprise three' separate elements which must. have been within the contemplation of the lawmakers: the earning capacity of a normal man in the same employment in the same or a near-by location, the percentage of reduced earning capacity by reason of the prior injury, and the proper amount to be paid by the employer for the injury resulting while the employee was in his service. In section 2 of the workmen’s compensation act as amended in 1922 (Acts 1922, p. 185) provision is made for the ascertainment of the value of the service of an injured employee where there has been no agreement as to wages, or where wages for services have not been fixed on account of the recency of employment; and it is provided that the earning capacity of one who has never received a prior injury may be ascertained by proof of the wages allowed under similar circumstances in the same neighborhood. We see no reason, if it was the purpose of the General Assembly to pay him only for the injury sustained, without regard to the prior injury, “but as if the early disability or injury had not existed,” why it would not be the duty of the commission to apply the same rule in ascertaining what would have been the normal earning capacity at that time in the employment in which he was engaged, if he had been a normal man who had never been injured. Then, since he has been injured, but in arriving at the later injury for which he alone is to receive compensation, how can the amount of this compensation be reached, unless the commission ascertains by deducting from the wages of the normal man the percentage of injury due to the former accident, and thus reaches the com
Judgment reversed.