180 Ga. 294 | Ga. | 1935
This' case is before this court upon the grant of a certiorari. Liberty Mutual Insurance Co. v. Clay, 46 Ga. App. 558 (168 S. E. 79). Only two questions are presented for decision
The second question is presented by an assignment of error upon that portion of the decision of the Court of Appeals wherein it was held: “Upon an appeal to the superior court from the award made by the Directors of the Department of Industrial Relations, after the case had been remanded with instruction that an award be made under section 32 of the act, the evidence was sufficient to authorize the finding made that the employee had suffered a sixty per cent, impairment in the use of his leg and was entitled to compensation in a weekly amount, for one hundred and seventy-five weeks, less twenty-nine weeks for which he had already been paid, viz., one hundred and forty-six weeks, equal to sixty per cent, of one half of his weekly wages of $50, viz., sixty per cent, of $25, which is $15.” It is alleged that this ruling is in conflict with and places an illegal and improper construction on section 32, in that it allows for a sixty per cent, permanent partial loss of use of a leg the same amount of compensation that the employee would have been entitled to receive under the law for a total, or 100%, loss of use. Substantially the same question is raised by other assignments of error contained in the petition for certiorari.
It is insisted by the petitioners in certiorari that no award for an injury to a specific member can be made by the department of industrial relations before maximum improvement has been reached. We can not agree with this contention. Section 32 refers to “per-' manent partial industrial handicap;” but the use of the word “permanent” does not mean that ■ compensation for an injury to a specific member must be fixed on the basis of the ultimate condition. Section 32 must be considered in connection with section 45, relating to a change in condition, and thus the word “permanent” is necessarily qualified by the provisions of the last mentioned section. For illustration, let us suppose that an employee receives an injury which is confined to a leg and results in a total loss of use for fifty
In the instant casé, the industrial commission found that the injury was confined to a specific member. “A different case would be presented if the evidence had shown that in consequence of such injury the employee had suffered a superadded injury or disease affecting other portions of his body.” Travelers Insurance Co. v. Reid, 178 Ga. 399 (173 S. E. 376). Georgia Casualty Co. v. Jones, 156 Ga. 664 (2) (119 S. E. 721); Ocean Accident & Guarantee
The Court of Appeals erred, however, in holding that the employee was entitled to compensation for 175 weeks in a weekly amount equal to 60 % óf one half of his wages of $50 per week, less amounts paid for a period of 29 weeks. In the recent case of United States Fidelity Co. v. Edmondson, 179 Ga. 590 (176 S. E. 406), it was held that for the total loss of use of a member the weekly compensation payments shall be subject to the same limitations as to maximum and minimum as set out in section 30, the maximum thereunder being $15 per week, and that if the injury consists of the partial loss or of the partial loss of use of a member, the compensation shall be determined by ascertaining the weekly compensation which would have been payable for such total loss, or loss of use, and by then taking such proportion thereof as will correspond with the proportion which such partial loss bears to the total loss. In the present case the department of industrial relations found that the employee had sustained only a 60% loss of use of his leg, and so, excluding compensation for 10 weeks total disability, the employee would be entitled to 60% of the maximum amount of $15, as allowed under section 30, and not 60% of one half of his weekly wages; that is to say, on such a finding he would be entitled to $9 per week for a period of 175 weeks, less any payments made subject to credit in the meantime. We thus sustain the second contention of the petitioners in certiorari. This conclusion is not contrary to the decision in Home Accident Insurance Co. v. McNair, 173 Ga. 566 (161 S. E. 131), as explained in the Edmondson case, supra, decided some time after the decision of the Court of Appeals in the instant case.
Judgment reversed.