Defendant'was a salesman in the employ of Northern States Power Company. He sustained an injury on October 24, 1938, while lifting a refrigerator during a demonstration to a customer. The injury was a protruded intervertebral disc at the fourth lumbar interspace. He was operated upon for this condition in November, 1944, and a bone graft was placed on the spine. The healing period expired October 16, 1945. Pie is now employed as a salesman at the same or higher earnings than he made before the injury. The medical opinion is to the effect that he sustained a ten per cent to fifteen per cent permanent' total disability due to loss of motion in the spine. The commission found that defendant sustained a permanent disability equivalent to twelve and one-half per cent of total permanent disability and entered an award thereon.
Plaintiffs contend that the commission acted in excess of its powers in disregarding the fact that defendant suffered no loss of earnings after.the healing period. Implicit in this contention is the position that compensation can Ipe awarded for non-schedule injuries after the healing period only upon a showing of actual wage loss. This requires some consideration of the statutory history of applicable sections.
In 1911 sec. 2394 — 9, Stats, (denominated “Scale of compensation”), provided that if an accident cause a, total dis- t ability, “sixty-five per cent of the average weekly earnings during the period of such total disability” shall be paid; that if the accident cause partial disability “sixty-five per cent of the. weekly loss in wages during the period of such partial disability” shall be paid. Sec. 2394 — 10, 2, provided that the weekly loss above referred to shall consist of such percentage " of the average weekly earnings computed according to the provisions of the section “as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the acci
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dent.” Under the law as above indicated this court had before it in 1913 the case of
Mellen Lumber Co. v. Industrial Comm.
In 1913 the legislature made several amendments to the act. A new. subsection numbered ( 5 ) was added to sec. 2394 — 9, Stats., and provided a schedule of compensation for specific injuries such as the loss of an arm, leg, thumb, etc. A schedule was included which made a specific award for each injury mentioned, and it was provided that “in all other cases in this class the compensation shall bear such relation to the amount stated
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in the above schedule as the disabilities bear to those produced by the injuries named in the schedule.” The disabilities referred to in sub. (5) are customarily called “schedule injuries” and those which are not specifically within the schedules but which are related are referred to as “relative injuries.” This enactment was followed by the decision in
Northwestern Fuel Co. v. Industrial Comm.
Down to this point we think it is pretty clear that in all cases of permanent partial disability other than schedule and relative injuries the statute was held to require a showing that applicant suffered impairment of earning capacity in the same or *74 other suitable employments. This would not mean, of course, where an employee, due to the generosity of his employer, was actually paid greater wages than he could legitimately earn in view of his physical impairment that he was not entitled to compensation if he could show an actual impairment of earning capacity. But the showing of impairment in relation to earning capacity was required in respect of all compensable .injuries with the exception above noted. However, the amendment of the statute in 1923 and the entire pattern of legislation since that time is contrary to plaintiffs’ contentions. In 1923 the sections'of the act were renumbered and sec. 2394 — 9,'2 (a), (b), (c), and (d), Stats., became sec. 102.09 (2) (a), (b), (c), (d). Par. (b) of sec. 2394 — 9,2 became sub. (2) (b) of sec. 102.09 and provided “if the accident causes partial disability, during the period of such partial disability such proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employee bears to his average weekly wage at the time of his injury.” Sec. 102.09 (2) (d) provided in part: “In case of permanent partial disability aggregate indemnity shall bear such relation to the aggregate indemnity for permanent total disability as the nature of the injury bears to one causing permanent total disability. In case where the only permanent disability is covered by the provisions of subsections (5) and (6) of this section, such subsections shall govern.” Subs. (5) and (6) of sec. 102.09 relate to so-called schedule injuries and also to the so-called relative injuries. The schedule injuries are all permanent partial injuries and provision is made for relative injuries by sec. 102.09 (5) (fm) as follows: “For all other injuries to the members of the 'body or its faculties which are specified in the schedules in paragraphs (a) and (e) of this subsection resulting in permanent disability, though the member be not actually severed or the faculty totally lost, compensation shall bear such relation to that named in these schedules as disabilities bear to those produced by the injuries named in these schedules. . . .” Sec. 102.11 was entitled by the legislature “Method of compu *75 tation.” Sub. (2) provides in substance as did sec. 2394—10, 2, that the weekly loss in wages referred to in sec. 102.09 shall consist of such percentage of the average weekly earnings of the injured employee, computed according to the provisions of this section, as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, and other ‘ suitable employments, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury. It is the retention of this section in the law as amended in 1923 and its persistence down through 1937 which raises the difficulty presented by tins case. There were amendments that are not of concern here and some renumbering which will not be reviewed other than to state that sec. 102.11 (2), Stats. 1923, has become sec. 102.11 (3), Stats. 1937, and 102.09 (2) (d) became 102.44 (3). It is our conclusion that sec. 102.44 (3) (a), which specifically deals with permanent partial disabilities not falling into the schedule or relative-injury class and which requires that the compensation bear such relation to the aggregate weekly indemnity for total permanent disability as the nature of the injury bears to one. causing permanent total disability, governs the case adversely to appellant. The-difficulty, of course, is that sec. 2394 — 10, 2, has been retained in virtually the same form in sec, 102.11 (3), which requires that a wage loss be determined by considering the proportionate extent of the impairment of applicant’s earning capacity in the employment at which he was working at the time of the injury or other .suitable employments, and this was treated by this court prior to 1923 as applicable to all cases of permanent disability. The argument is made with some force that this section, which has not been substantially .changed, ought to be considered to have the same meaning now as it had then and we think this would be so were it not for the 1923 amendment which appears to us rather plainly to take permanent partial disability out from under the operation of sub. (3) of sec. 102.11. The general scheme of the statutes *76 following the development of schedule and relative injuries, all of which constituted permanent partial disability, indicates that the legislature was concerned with bringing nonschedule and nonrelative disabilities into conformity with schedule and relative disabilities. Indeed, in 1923 major schedule disabilities were compensated on the basis of a percentage resulting from a comparison between the schedule disability and a permanent total disability. In 1923 the legislature made non-schedule and nonrelative injuries compensable specifically on the basis of a comparison between the nature of the injury and the nature of an injury causing permanent total disability. It was not necessary to change the terms of sec. 102.11 (3) for the reason that its express terms relating as they did to weekly wage loss specifically applied only to sec. 102.43 (2) which is the only section dealing with compensation that refers to a wage loss. Hence, we think that although sec. 102.11 (3) was not amended the provisions of sec. 102.44 (3) heretofore discussed have cut its application down to temporary disabilities. Such a construction leaves no disparity between schedule and relative injuries on the one hand, and nonschedule injuries causing permanent partial disability on the other. This also conforms to the practical necessities. During the healing period it is possible to establish a wage loss because that is a past event. But since an award for permanent disability is to be made for all time at the end of this period it must be based upon some sort of prediction as to impairment of earning capacity. It appears to us that the legislature has-specifically chosen in the case of nonschedule permanent partial disabilities the method of comparing the severity of the injuries- causing such a disability with those causing permanent total disability. We see no other construction that will give meaning to sec. 102.44 (3 ). We conclude that the trial court properly determined this matter and that the judgment must be affirmed. ‘
By the Court. — Judgment affirmed.