224 P. 876 | Utah | 1924
The plaintiff made due and timely application to the Industrial Commission of Utah, hereinafter called Commission, for compensation for an injury sustained by him in July, 1920, in the course of his employment while employed by the defendant Lion Coal Company, which is an employer coming within the provisions of our Workmen’s Compensation Act, commonly known as the Industrial Act. The other defendant, the Ocean Accident & Guarantee Corporation, is the insurance carrier for the coal company.
Compensation was duly awarded plaintiff for all temporary disability and for loss of time, concerning which there is no controversy.
A considerable time after plaintiff had recovered from his temporary disability, and after he had returned to work and had followed his employment for some time, to wit, in July, 1923, he made further application to the Commission for an allowance for permanent disability, to wit, for the loss of the use or for loss of function of his right leg below the knee, which was the point of the original injury and for which injury compensation had been awarded him as before stated.
The Commission reopened the case, and a rehearing was duly had, at the conclusion of which the Commission made an additional award to the plaintiff. Neither side, it seems, was satisfied with the last award made" by the Commission, and both the plaintiff and the two defendants filed applica
“The only issue before the Commission under those petitions for rehearing is the question of loss of function to the applicant’s right leg between the knee and the ankle as all other questions pertaining to the accident were determined at the former hearing. * * * We are attempting to find the extent of lost function to the applicant’s right leg.”
All parties, it seems, concurred in Mr. Knerr’s statement, and the rehearing was limited to the issue stated by him. Upon the conclusion of the rehearing at which a number of medical and surgical experts testified, the commissioners disagreed upon the question of the extent of plaintiff’s loss of use or loss of function of his right leg below the knee. The majority of the Commission, after fully stating the history of the case, and after reviewing the expert medical testimony respecting the extent of the loss of use or loss of function of plaintiff’s leg, stated their conclusion in the following words :
“There is some divergence of opinion among the medical men Who have testified in this case as to the disability which this man suffers to the right leg below the knee as a result of his injury of July 23, 1920, some of them making estimates as low as 16 per cent., while one places the disability as high as 50 per cent. A careful review of the testimony taken, which reveals that the applicant has for a long period of time sustained effort in the most fatiguing employments, that he has been, the beneficiary of large earnings from said employments, that the physical condition of his right leg below the knee has improved considerably since his examination to determine lost function, on April 13, 1923, together with the fact that the Commission has made personal observation of his condition by watching physical examinations and having the opportunity of seeing him move about upon his injured member upon various occasions, leads the Commission to conclude:
“That under our law (section 3138) the occupation factor cannot be taken into consideration when fixing the percentage of disability for either partial or total loss of function to a member, as set out in the schedule, and for which a specific compensation is provided therein; and that applicant has lost approximately 26 per cent, of the use of the right leg below the knee; and that, therefore, the Lion Coal Company or the Ocean Accident & Guarantee Corporation should pay to the applicant 35 weeks’ compensation at $16 per*213 week, representing 25 per cent, of loss of bodily function to tbe right leg below the knee.”
Plaintiff, in his brief, states the contention as follows:
“It is the contention of the plaintiff herein that the majority members of the Commission erred, as matter of law, in deciding that the occupation factor cannot be taken into consideration when fixing the degree of disability and loss of bodily function sustained by the applicant.”
It is contended that in view that the testimony of the medical experts discloses that the permanent partial disability of plaintiff’s leg affected him to a greater extent in pursuing the occupation of coal miner than it would in some other manual occupation, and in view that coal mining was his vocation at the time of his injury and that the evidence showed that he could earn higher wages as a coal miner than he could in some other manual occupation for which he was adapted, therefore it was the duty of the Commission, in determining the extent of plaintiff’s permanent partial loss of use or loss of function that he sustained in his right leg, to ta.ke into consideration the vocation that he followed at the time of the injury and the effect that the loss of function of his leg would have in that particular vocation, rather than the effect that such loss of function would have upon plaintiff’s leg regardless of his vocation. In other words, counsel contend that if the loss of plaintiff’s right leg affected him to a greater extent in following the vocation of a coal miner, than it would as a common laborer or in following some other manual occupation, the extent of the loss of function should be controlled by his vocation as a coal miner and not otherwise.
In view of this contention, it will be necessary to refer to our statute and to have recourse to the decisions of courts which are based upon statutes in effect or in substance like ours. Our statute relating to the amounts of compensation to be awarded to injured employees is found in Comp. Laws Utah 1917, §§ 3137 and 3138, as amended by Chapter 63, Laws Utah 1919, which read as follows:
3137. “In case of temporary disability, the employee shall receive 60 per cent, of his average weekly wages so long as such disability is total, not to exceed a maximum of $16.00 per week, and not less*214 than a minimum of $7.00 per week; but in no case to continue for more than six years from the date of the injury, or to exceed $5,000.00.
3138. “Where the injury causes partial disability for work, the employee shall receive, during such disability and for a period of not to exceed six years beginning on the fourth day of disability, a weekly compensation equal to 60 per cent, of the difference between his average wages before the accident and the weekly wages he is able to earn, thereafter, but not more than $16.00 a week. In no case shall the weekly payments continue after the disability ends, or death of the injured person, and in case the partial disability begins after a period of total disability the period of total disability shall be deducted from such total period of compensation. In the case of the following injuries the compensation shall be 60 per cent, of the average weekly wages, but not more than $16.00 to be paid weekly for the periods stated against such injuries respectively, and shall be in addition to the compensation hereinbefore provided for temporary total disability, to wit.”
Then follows a statement of the number of weeks that shall be allowed for specific injuries., among which are the following :
"For loss of one leg at or'' so near the hip joint so as to preclude the use of an articial limb, 180 weeks; one leg at or above the knee where stump remains sufficient to permit the use of an artificial limb, 150 weeks; one leg between the knee and ankle, 140 weeks.”
After enumerating a large number of specific injuries, the section concludes as follows:
“Any other disfigurement, or the loss of bodily function not otherwise provided for herein, such period of compensation as the Commission shall deem equitable and in proportion to compensation in other cases not exceeding two hundred weeks.
“The amounts specified in this section are all subject to the limitation as to the maximum weekly amount payable as herein-before specified in this section, and in no event shall more than a total of $5,000.00 be required to be paid.”
Section 3139 relates to cases of permanent total disabilities and is not material here. Section 3142, as in force when plaintiff’s injury occurred, reads as follows:
“The average weekly wage of the injured person at the time of the injury shall be taken as the basis upon which to compute the benefits.”
We have quoted the different sections of our statute for the purpose of showing the theory our Legislature pursued in fixing the amounts of compensation that should be allowed for specific injuries and to what extent discretion is vested in the Commission in awarding compensation under certain circumstances. It will be observed that the earnings or earning capacity of the injured employee is important only in case that 60 per cent, of his average weekly wage amounts to less than $16 per week. In case 60 per cent, of his average weekly wage is equal to or exceeds $16, the amount of his earnings is of no importance whatever. Sixteen dollars per week, therefore, is the highest amount any injured employe can be awarded, although 60 per cent, of his average weekly wage is much more than that amount. The limit of $16 is an arbitrary one, and so is the limit of 60 per cent. The same is true respecting the different amounts that are allowed for the specific injuries that are enumerated in section 3138, supra. In some states, notably in the state of Washington (Foster v. Ind. Ins. Com., 107 Wash. 400, 181 Pac. 912), the statute fixes specific amounts that are to be allowed for specific injuries instead of weekly allowances as is the case in this state. It will also be observed that our statute provides that in case of “any other disfigurement, or the loss of bodily function not otherwise provided for,” the Commission is vested with some discretion and for such an injury it may allow such period of compensation as the Commission “shall deem equitable and in proportion to compensation in other cases not exceeding two hundred weeks.” Here again Ave have an arbitrary limit of 200 weeks. Moreover, the compensation allowed must be “in proportion to compensation in other cases.” In many of the statutes, as is the case in the Washington statute, no discretion whatever is vested in the Commission in making allowances for loss of bodily function. For example: If an injured employee loses a leg below the knee and above the ankle, he Avould be allowed a specific sum for the loss. In ease, how
Plaintiff’s counsel do not contend that their client suffered a loss of use or of function of his leg greater than 25 per cent, if such loss is considered independently and apart from his power to earn wages' as a coal miner, but they eon-
“The Industrial Commission has found that the claimant has lost the use of 75 per cent, of his right hand. His weekly wages being $35.09, it awarded him $20 a week for 183 weeks. Unanimously approving the findings of fact the Appellate Division altered this award to $15 a week for 244 weeks. In this it erred. The act fixes hut one rate of compensation for injuries. The workman is to receive two-thirds of his weekly wages not exceeding a certain sum. The extent of his injuries limits not the amount of these payments but the time during which they are to continue. If for the loss of a hand that time is 244 weeks, for the loss of three-fourths of the hand, it is 183 weeks. The weekly compensation for the loss of a hand, arm, foot, leg or eye is not to exceed $20 a week. Permanent loss of the use of any such member is equivalent to the loss. The same measure applies to it. In other cases*219 $15 is the limit. In 1917 an award was authorized for the proportionate loss of the use of a hand. Clearly the compensation for such proportionate loss is intended to be some fraction of the amount allowed for the total loss. The weekly limit is $20 not $15.”
The order of the Appellate Division was reversed and the allowance of the Industrial Commission reinstated.
In Spring Canyon Coal Co. v. Ind. Com., 57 Utah, 208, 193 Pac. 821, this court held that in case the statute makes a specific allowance for a specific injury the Commission cannot add anything to the amount fixed by statute. Since that decision was handed down, however, the statute has been amended so as to include “other disfigurement,” or the loss of “bodily function not otherwise provided for” as appears from the section as amended that we have quoted herein. It will be observed, however, that the statute merely covers “disfigurement, or the loss of bodily function not otherwise provided for. ’ ’ Therefore, such being the case, the Commission is vested with some discretion, and it may fix such an amount as in its judgment shall be “equitable and in proportion to compensation in other cases.” If it were assumed, however, that the instant case is one “not otherwise provided for, ’1 still we would be powerless to control the discretion or judgment of the Commission. If the Commission considered the evidence respecting the alleged disfigurement or loss of bodily function and fixed an allowance in accordance with its best judgment, we cannot interfere.
We are not unmindful of the fact that in this ease plaintiff’s counsel contend that the act of the Commission in refusing to consider the vocational factor, so called, is purely a question of law and hence reviewable by us. In view, however, that we have arrived at the conclusion that the vocational factor is not an element to be taken into consideration by the Commission, this contention must necessarily fail.
We have perhaps said more than was necessary. We did so, however, because the question presented is one of first impression in this jurisdiction and in view of reducing the number of applicants to this court involving questions that are either determined by the statute or that are to be determined by the Commission as matters of fact or are refer
While the briefs of counsel for both sides have been very illuminating and helpful, yet, from some of the arguments in plaintiff’s brief, his counsel seem to labor under the impression that the compensation acts, to some extent at least, take the place of common-law actions for damages for personal injuries. Such is manifestly not the ease. Workmen’s compensation acts are not intended to fully compensate an employee for his loss of time and diminished earnings both past and future, nor to compensate him for the pain and suffering incident to the injury. The common-law action is based on some wrongful act of commission or omission on the part of the employer, and the employee assumes all the risks of injury except such as arise out of the negligence of the employer, while under the workmen’s compensation acts the employee assumes no risks whatever, and hence his compensation in case of injury is based upon some arbitrary statutory regulations. In view that injuries which in the course of the employment must be compensated by the industries in which they occur and that the industries must assume all the risks of injury and must provide all the means of maintaining the injured employee and his dependents, some arbitrary regulations through which those results may best be accomplished are inevitable. Those regulations are found in the statutes and are intended to prevent injustice to the employer, the employee, and to the public which must ultimately bear a large share of the. burdens which are incident to our industrial activities. A proceeding before the Industrial Commission is therefore in no sense an action for damages, and, in view of that, old notions re-
In view of what has been said, it follows that the award made by the Commission should be affirmed. Such is the order.