35 Ga. App. 772 | Ga. Ct. App. | 1926
This is a case under the workmen’s compensation act. The claimant, at the age of eight years, lost his right foot and his right leg up to within three inches of the knee-joint. On June 25, 1924, while employed by Gainesville Cotton Mills, he was injured “by having a bale of cotton roll on his knee, spraining his hip and knee” of the same leg. His wage at the time of the accident was $9.07 per week. This injury arose out of and in the course of his employment, and an agreement to receive and pay compensation was entered into by the parties at interest, and compensation was paid accordingly, as for ten weeks’ temporary total incapacity. See Ga. L. 1923, p. 95, § 32. The claimant returned to work on September 6, 1924, and continued to work until April 20, 1925, when he was discharged by his employer because of a report of certain misconduct. Shortly afterwards he applied for additional compensation, on the ground of a change in condition. On hearing this application the commission, from medical testimony, found that there was “50 per cent, loss of use to that portion of his leg which had not been destroyed previous
Section 32 of the compensation act provides that for the loss of a leg the employee shall be entitled to compensation at the rate of 50 per cent, of his average weekly wages for 175 weeks. Subsection (r) provides that total loss of use of a member shall be considered as equivalent to the loss of such member, and that compensation for partial loss, or for partial loss of use, of a member “shall be such proportion of the payments provided for total loss as such partial loss bears to the total loss.” Section 34 is to the effect that if an employee already has a permanent disability or has elsewhere sustained a permanent injury, such as specified in section 32, he shall be entitled to compensation for an injury in his employment only for the degree of incapacity which would have resulted from the later accident if the earlier disability or injury had not existed. The employee in this case was wearing an artificial limb and was making out with the piece of leg that he had. Presumably he was charged with the disability, in the price of his labor. Section 34, recognizing the probability of such charge, presumes it as a matter of law. Since he was not a whole man and was receiving less for his work because of that fact, he ought not to be charged with the disability again in adjusting the mat
A decision of this case turns largely upon the proper construction of § 34. After the most painstaking deliberation we have interpreted the provision as indicated above.
We can not agree with the contention that the compensation should be such proportion of the payments, as in ease- of total loss or total loss of use, as the partial loss of use as here shown would have borne to the total loss or total loss of use, had there been no prior injury. A comparison of a partial loss of a member, previously injured, with the loss which would have been sustained in the later accident if the member had been totally lost therein and had theretofore been sound and whole, is one of the things that § 34 was enacted to prevent. It may be that this section (see the word “only,” in view of which we have.in this case limited our construction by the word “ordinarily”) was also intended to avoid conclusions like that reached in Branconnier’s case, infra, in which it was held that where an employee who had already lost one eye lost his remaining eye, the latter loss should be regarded as a total disability; but as to this we express no opinion in the present case. The questions presented are by no means free from difficulty, but we think our conclusions are in line with the authorities. See, in this connection: Knoxville Knitting Mills Co. v. Galyon, 148 Tenn. 228 (255 S. W. 41, 30 A. L. K. 976); Industrial Commission v. State Ins. Compensation Fund, 71 Colo. 109 (203 Pac. 216); Schwab v. Emporium For
Let it be understood that we do not mean to hold that my por-' tion of a leg is to be considered as a whole leg. In the case before us the part that remained after the prior injury included, and extended three and a half inches below, the knee-joint. In view of § 32 (r) and § 34, we think the injury to such remaining portion should be considered as an injury to a leg. Whether this could be true if all that remained was above the knee-joint is a question not involved in the present case. See Allen v. American Ry. Express Co., 119 Me. 322 (111 Atl. 383, 18 A. L. R. 1348, and cit.).
Under the findings as made by the commission, its award was erroneous. The claimant was entitled thereunder, as a matter of law, to 50 per cent, of the compensation which would have been payable for a total loss or total loss of use of a leg, less the amounts previously received by him, as noted in the superior court’s judgment. Section 59 provides that the superior court, on appeal, may enter the proper judgment upon the commission’s findings, as the nature of the case may demand. The findings made in the instant case demanded the judgment which the superior court rendered, and it was not necessary to recommit the case on sustaining the appeal. The above is subject to this qualification: The court in awarding 50 per cent, of the compensation to which the employee would have been entitled as for the total loss, or total loss of use, of a leg, should have proportioned the period of the weekly payments rather than the amount of such payments, ordering that the payments be made at one half the average weekly wages, for 87-1/2 weeks, less credit for payments already made, instead of requiring them to be made at the rate of one fourth of such wages, for 175- weeks, less such credit. Section 30 of the compensation act provides that the weekly compensation shall not be “less than four dollars per week, except when the weekly wage is below four dollars, then the regular wages on the date of the accident shall be the weekly amount paid;” and, under section 32, “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
Judgment affirmed, with direction.