79 Ind. App. 305 | Ind. Ct. App. | 1922
This is an appeal from an award of the full Industrial Board entered on February 28, 1922, in a proceeding brought by appellee under the provisions of the Indiana Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1921), in which appellee made claim for compensation on account of an injury by accident sustained on January 4, 1921.
The full Board found that on January 4, 1921, appel
Appellant does not question the sufficiency of the evidence to support the findings of fact by the Industrial Board, but contends that under the facts as -found by the Board the award is contrary to the provision of the Indiana Workmen’s Compensation Act which under subdivision “f” of §31 (Acts 1919 p. 158, §8020ol Burns’ Supp. 1921) allows 150 weeks’ compensation for
Under this provision, which appellant says needs no construction and can mean but one thing, it contends that appellee was entitled to compensation for 150 weeks and no more, while appellee contends that under the facts found he is entitled to 500 weeks’ compensation under subdivision “d” of §31 (Acts 1919 p. 158, supra) which provides compensation for injuries resulting in total permanent disability, or under subdivision “h” of §31 (Acts 1919 p. 158, supra) which provides compensation in all other cases of permanent partial impairment than those mentioned in other subdivisions of the section (none of which can include the injury here involved), the same to be proportionate to the degree of such impairment in the discretion of the Industrial Board, not-to exceed 500 weeks.
We proceed to give these provisions of the Compensation Act (Acts 1915 p. 392, supra) 'consideration in view of other provisions of the Act, and of the circumstances of this case as disclosed by the finding. It will be observed that under §35 of the Compensation Act (Acts 1915 p. 392, supra) an employe who lost both eyes, one in each of two separate accidents, in the same employment would be entitled to compensation for 500 weeks. The writer of this opinion assumes in this case that the previous permanent injury together with the subsequent permanent injury resulted in permanent total disability, for it is apparent from the language of subdivision “f” of §31 (Acts 1919 p. 158, supra) that the legislature regarded the reduction of the sight of an eye to one-tenth of normal vision with glasses the same in effect as its total loss. If such total disability were sustained as a result of two separate accidents in different employments, the employe would receive compensation for only 300 weeks, if appellant’s contention is to prevail. This is upon the
When appellee entered the service of appellant he had lost one eye, but there yet remained a degree of capacity which enabled him to perform the service for which he was hired, and for which we must assume that compensation was paid him in proportion to his capacity so to perform, and that upon this earning capacity, measured by the compensation that was paid to him, we must base his right to recover in this case. He was as much an employe in his limited capacity, with his correspondingly limited compensation therefor as he would have been had he been possessed with the perfect sight of both eyes, and his previous impairment should not be taken into account in determining the amount of compensation to which he is entitled by reason of the injury received while in appellant’s employ. Only the result of such injury to the employe in his then physical condition without reference to his previous diasbility should be considered. In re Branconnier’s Case (1916), 223 Mass. 273, 111 N. E. 792; Schwab v. Emporium Forestry Co. (1915), 153 N. Y. Supp. 234, 167 App. Div. 614; Keyworth v. Atlantic Mills Co. (1919), 42 R. I. 391, 108 Atl. 81, note 8 A. L. R. p. 1336; Kriegbaum v. Buffalo Wire Works Co. (1918), 169 N. Y. Supp. 307, 182 App. Div. 448.
We reach the conclusion then that where there has been a previous total loss of one eye and that thereafter, whether in the. same or another employment, there is a total loss of the other eye, and the blindness resulting therefrom occasions permanent total disability, there should be a recovery for such total disability under subdivision “d” of §31 of the Compensation Act (Acts 1919 p. 158, supra) subject, however, to the deduction provided in said §35 (Acts 1915 p. 392, supra), if the loss of both eyes occurs in the same employment. We have reached this conclusion by a careful study of the provisions of the Workmen’s Compensation Act (Acts 1915 p. 392, supra), giving the same a liberal construction in the light of principles of equity and justice in favor of the injured employe. Having reached this conclusion, we are confirmed therein by the decisions of other states under the provisions of
In Fair v. Hartford Rubber Works Co. (1920), 95 Conn. 350, 111 Atl. 193, an employe who had previously lost the sight of his left eye was injured in his right eye so that he was rendered permanently and totally blind and it was held that he was entitled to an award for total, permanent disability. The court, citing Hartz v. Hartford Faience Co. (1916), 90 Conn. 539, 97 Atl. 1020, says: “It is of no consequence that the total incapacity of this plaintiff is in part due to the fact that he had already lost one eye before suffering the injury in question; the right to compensation depends in each case on the extent to which the claimant is in fact incapacitated by the injury.”
In Combination, etc., Co. v. Court of Common Pleas (1921), (N. J.) 115 Atl. 138, a workman having already lost one eye at the time of entering hi's employment sustained an accident in the course of his employment causing the loss of his remaining eye, thereby rendering him totally blind, and it was held that an award for total and permanent disability was justified, under the Workmen’s Compensation Law, with provisions substantially the same as ours, the court saying that “as a remedial act which should be liberally construed; and, applying this rule, we are clear that as respects major injuries, like the loss of an eye, an arm, or a leg, the Legislature was dealing with a situation in which the other eye, arm, or leg would still be available.”
In Brooks v. Peerless Oil Co. (1920), 146 La. 383, 83 So. 663, it was held that an injury to a laborer’s only eye so affecting his vision as to incapacitate him for the work he has been doing and rendering his ability to do any remunerative labor more than doubtful, constitutes permanent, total disability within the Employers’ Lia
In Guderian v. Sterling Sugar & R. Co. (1922), 151 La. 59, 91 So. 546, it was held that one losing his only eye which disabled him from doing remunerative work of any reasonable character will be awarded compensation as for permanent total disability.
In Jennings v. Mason City S. P. (1919), 187 Iowa 967, 174 N. W. 785, it was contended by appellant that the Workmen’s Compensation Act fixed the compensation for the loss of an eye regardless of whether such loss resulted in total or only partial disability. But the court held that loss of the employe’s only eye constitutes a total permanent disability with compensation accordingly. In that case it appears that the commissioner deducted from the allowance for total disability the compensation value of the first loss of an eye deeming that as a partial disability, and the court says that — “it was an effort on the part of the commissioner at attaining equity, and worked no prejudice to the appellant.” In the instant case, an allowance was made by the Industrial Board of compensation for 350 weeks which is 150 weeks less than compensation for total permanent disability. As 150 weeks is the compensation for the loss of one eye, it seems that the Industrial Board may have used the same process as in the case above in reaching
In Industrial Commission v. State Ins. Compensation Fund (1922), (Colo.) 203 Pac. 215, it was held, in view of the liberal construction of the Workmen’s Compensation Act adopted by the court, and evident purpose and intent of the act which is held to be highly remedial and beneficent in its nature, that where an employe was substantially blind in one- eye, but was able to perform his duties and earn his compensation, an injury in the course of his employment which destroyed the sight of his good eye, and which induced him, at the suggestion of the State Compensation Fund, to undergo an operation to improve the sight of the other eye, resulting total loss of his sight of that eye, was the cause of the employe’s total permanent disability, and entitled him to compensation for such disability.
In Schwab v. Emporium Forestry Co., supra, it was held that a workman who, having previously lost one hand, lost the other as a result of an accident in his employment, is entitled to compensation for total disability under the Workmen’s Compensation Law, the court holding that the claimant by the accident had lost all the ability he had of earning a living, and that the disability was therefore total, and further that his wages evidently being based upon the fact that he was previously partially disabled, the compensation to be awarded him should be based upon such figures.
In Branconnier’s case, supra, the claimant lost one of his eyes five years prior to an injury received in the course of his employment by which the sight of his remaining eye was destroyed. The question was whether as a matter of law the loss of his remaining eye in the
In Wabash R. Co. v. Industrial Comm. (1918), 286 Ill. 194, 121 N. E. 569, the employe previous to his employment had lost his left arm, and after his employment had lost his left leg. Under the statute which provides that the loss of both hands or both arms, both feet or both legs, both eyes, or any two of them shall constitute total permanent disability, the plaintiff in error contended that the loss of one leg did not constitute total permanent disability, while the defendant in error contended that the loss of the leg combined with the previous loss of the arm constituted total permanent disability, and the court held that there was a total permanent disability for which' compensation should be made. The court says: “He was employed to do work which could be performed by a man having but one arm, and he was paid on that basis. By the loss of his leg such capacity as he had for work was entirely destroyed, and under the provision of the act he was entitled to compensation for total permanent disability.”
In Heaps v. Industrial Commission (1922), 303 Ill. 443, 135 N. E. 742, it was held that, where an employe, blind in one eye, was injured so that the other eye remained closed except when opened by artificial means, in which case it had only 12/200 vision, amounting practically to blindness, which condition made it impossible
Appellant contends that, by the provisions of §33 of the act of 1915, Acts 1915 p. 392, supra, previous injuries in other employments are excluded from consideration in determining the amount of compensation in subsequent injuries such as specified in §31 of the act (Act 1919 p. 158, supra). This exclusion however, related-only to the permanent partial injuries, as those were the only kind of injuries mentioned in §31 of the act of 1915 (Acts 1915 p. 392), and which by reference are included in the provisions of §33. Section 31 (Acts 1915 p. 392) has since been amended, and the provisions of §33 (Acts 1915 p. 392, supra) do not apply to total permanent disabilities mentioned in §31 as amended. Acts 1919 p. 158, supra.
It is the general rule, that when a statute adopts a part or all of another statute by a specific and descriptive reference thereto, such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions or modifications of the statute unless it does so by express intent. State v. Leich (1906), 166 Ind. 680, 78 N. E. 189, 9 Ann. Cas. 302; Pittsburgh, etc., R. Co. v. James (1917), 64 Ind. App. 456, 114 N. E. 833; 36 Cyc 1152; State v. Caseday (1911), 58 Ore. 429, 115 Pac. 287; Crohn v. Telephone Co. (1908), 131 Mo. App. 313, 109 S. W. 1068; Culver v. The People (1896), 161 Ill. 89, 43
We do not need to discuss the provisions of subdivision “h” aforesaid, for the reason that we are convinced that the Industrial Board, with subdivision “f,” Acts 1919 p. 158, §31, supra, before it, did not consider that appellee’s injuries resulted in permanent partial disability.
The majority of the court holds that the findings of the Industrial Board do not show a permanent total disability and that the same is true with reference to the case of Stevens v. Marion Foundry, etc., Co., 77 Ind. App. 28, 133 N. E. 23, cited by appellant and relied upon by it as a case sustaining its contention. That it was not found by the Industrial Board that the injuries of appellee resulted in total permanent disability but only that he “has been totally
The majority of the court holds that, while it is no doubt true that loss of vision in both eyes usually results in permanent total disability, and the evidence will usually warrant the Board in so finding, the court would not be justified in holding that such disability necessarily follows in view of the fact that some persons, totally blind, arc able to engage in some kinds of employment, although less efficiently, it may be, and for which they receive reduced compensation. So reasoning the court holds that the decision of the Stevens case is not in conflict with the decision in the instant case.
The writer of this opinion, however, is not in harmony with the majority of the court with reference to what is required.in an Industrial Board’s finding to constitute a finding of total permanent disability. It is, of course, the law that in order to uphold a given award the finding of the Industrial Board must be sustained by sufficient evidence and the award must be sustained by the finding, otherwise it would be subject to reversal on appeal, under an assignment of errors, “That the award of the full board is contrary
But that workmen’s compensation acts such as we have in this state are the outgrowth of technicalities, abuses arid errors which hindered and sometimes prevented just compensation to injured employes and their dependents is generally recognized. That the Compensation Act of this state is remedial in character, and that it should be liberally construed to this end, even to the inclusion of cases within the reason although outside the letter of the statute, has been decided by this court. In re Duncan (1920), 73 Ind. App. 270, 127 N. E. 291. Its humane and beneficent purpose should not be frustrated by technical, cold-hearted construction against the injured workman. It is the spirit of the act that the loss resulting from the injury should be
The majority of the court are in accord with this compensation for total permanent disability but being of the opinion that the finding of the Industrial Board does not show a permanent total disability, holds that in the absence of a finding of permanent total disability there is .no basis for an award either of 350 or 500 weeks compensation, and that such an award is therefore contrary to law.
The cause is therefore reversed, for further proceedings.