147 Tenn. 173 | Tenn. | 1922
delivered tbe opinion of tbe Court.
This is an action by an injured- employee to recover of bis employer compensation for an injury sustained by bim while in tbe course of his employment, and is based upon tbe provisions of tbe workmen’s compensation statute (chapter 123, Acts 1919). The sole question presented is as to tbe amount of compensation to which tbe employee is entitled.
Tbe evidence shows that the employee sustained a compound fracture of tbe thigh, as the result of which be lost the partial use of the injured limb, and the evidence fully justifies the finding of the trial judge that as the result of his injury the employee is now permanently and partially disabled. The trial judge was apparently of the opinion that this permanent partial disability was one not specifically enumerated in the Workmen’s Compensation Act, but
“In all other cases of permanent partial disability not above enumerated, the' compensation shall be fifty per cen-tum of the difference between the wage of the workman at the time of the injury and the wage he is able to earn in his partially disabled condition, subject to a maximum of eleven ($11) dollars per week. Compensation shall continue during disability, not, however, .beyond'three hundred (300) weeks.”
At any rate, the employee was given a judgment for compensation at the rate of $11 per week for three hundred weeks, unless the employer should in the meantime show the disability had been removed or modified.
We are unable to concur in the judgment rendered in this case. Section 28 of the act undertakes to make provision for the amount of compensation to which all injured employees are entitled. It provides that “the following is the schedule of compensation to be allowed employees under the provisions of this act,” and it proceeds to fix the compensation according to the nature and extent of the injury. There are six separate schedules which deal with injuries differing in nature and extent. Subsection A deals with injuries producing temporary total disability; B with temporary partial disability; C with permanent partial disability ; D and E with permanent total disability; and F with injuries resulting in death.
The injury to the employee in this case was not one of death, permanent total disability, temporary partial disability, nor temporary total disability. His injury was limited to one limb of his body, to-wit, his leg. There was evidence from which it might be inferred that his injury was
Referring to the caption of subsection C, we find it reads as follows: “For the permanent partial disability, the compensation shall be based upon the' extent of such disability. In cases included by the following schedule, the compensation shall be that named in the schedule, to-wit.”
Then follows a long list of specific injuries, such as the loss of a thumb, of a finger, toe, arms, legs, eyes, etc. These specific injuries deal with the total loss of some member of the body. The particular clause of the section of the act dealing with cases of permanent partial disability due to an injury to a member resulting in less than total loss follows the enumeration just stated and is the one controlling in this case, since the evidence- conclusively shows that the employee did not sustain a total loss of the use of his
“In cases of pei’manent partial disability due to injury to a member resulting in less than total loss of use of such member not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of the use of the respective member, which the extent of injury to the member bears to its total loss.”
Thus it will be seen that the rate of compensation in cases where the injury to a member is less than the total loss of the use of the member is the same as that prescribed in the schedule for the loss of the particular member, and that the time for which the compensation is to be paid is that proportion of the time fixed in the schedule for a total loss which the extent of the injury bears to its total loss. In other words, the rate of compensation is the same, but the time is a proportionate part of the schedule for a total loss, and the proportion to be applied is that which the extent of the injury bears to a total loss. Applying this provision to the instant case, the employee is entitled to compensation at the rate of $11 per week for a period of time equal to eighty per cent, of one hundred seventy-five weeks, or one hundred forty weeks.
It is argued by counsel for the employee that this ratio should be figured upon the weekly wage and the maximum of $11 applied thereto. For example, counsel for the employee say that eighty per cent, of one-half of his average wages is in excess of the maximum, and, that being so, the maximum should be. applied to the full period of time allowed for the total loss of the limb. This contention