26 N.W.2d 29 | Minn. | 1947
On April 9, 1943, the employe sustained an accidental injury arising out of and in the course of his employment, which of itself produced 50 percent permanent partial disability, but in combination with a prior disability produced permanent total disability. The prior disability was caused by injuries sustained in an automobile accident about 14 years prior to the injury occurring in his employment. Both injuries were to his spine. At the time of the injury occurring in his employment, employe was almost 63 years old and earned a weekly wage of $24.73. After the accident, because of his disability, he not only was incapable of earning, but actually did not earn, anything.
The referee found that the employe was temporarily totally disabled for 52 weeks; that he was permanently partially disabled for 300 weeks, including the 52 weeks when he was totally disabled; that because the employe's disability was 50 percent his loss of earning ability was 50 percent also; that he was entitled to compensation from the employer for total disability at $16.39 per week for 52 weeks and at $8.19 1/2 per week for 248 weeks, which he commuted without objection by the employer to $16.39 per week for 124 weeks, or a total of $2,884.64, and from the special compensation fund after *170 the cessation of the weekly payments by the employer for the remainder of the compensation due for permanent total disability not to exceed $7,115.36, or a total of not to exceed $10,000.
The commission, on appeal from the referee's decision, found that the employe had a 50-percent permanent partial disability at the time of injury; that the injury caused loss of the remaining 50 percent of his physical ability, which, combined with his previous disability, caused permanent total disability; that at the time of the injury the employe with his previous disability was able to, and did, earn a weekly wage of $24.73; that afterward in his partially disabled condition he was unable to, and did not, earn anything; that he was entitled to compensation not to exceed $10,000 for the permanent total disability; that the employer was liable for permanent partial disability during 300 weeks in an amount equal to two-thirds of the difference between his daily wage at the time of the injury and the one he was able to earn in his partially disabled condition, or $16.49 per week, making a total of $4,947; and that the special compensation fund was liable for the remainder of the weekly payments for permanent total disability amounting to $5,053.
The question for decision is whether the commission correctly applied the rule prescribed by §
1. The rules governing the apportionment of liability for payment of compensation as between the employer and the special compensation fund, where an employe sustains an industrial injury which "of itself" would cause only permanentpartial disability, but when combined with a prior disability causes permanent total disability, are prescribed by §
2. We think that the employer's contention that the compensation awarded for permanent partial disability should be apportioned in the same manner as the liability for permanent total disability is *172
apportioned under §
"* * * The 'degree of physical disability is not the measure by which to determine the amount of an award of compensation.' " And
"* * * It is his [the employe's] ability to earn, not his actual earnings, that should be the basis of the award."
In applying this rule, the commission of course could not say that merely because the employe had sustained a 50-percent physical disability he had sustained also a 50-percent loss of earning ability. To so hold would be contrary to our decision in the Enrico case, where we characterized such a finding by the referee as "arbitrary." Having in mind the rule that loss of earning ability is not measured by loss of physical ability, it was for the commission to find what loss of earning ability was caused by the partial disability. As said in the Enrico case (
"The fact that relator sustained only 25 per cent permanent partial disability can affect in no way the amount required to be awarded by virtue of § 4274 [Minn. St. 1941, §
Consequently, it was for the commission to determine as a fact the duration and the extent of the partial disability. As to its duration, it is undisputed that it was permanent and existed during the period of 300 weeks following the injury. This is implicit in the employer's contention. The only question, then, is as to the effect of the partial disability upon the employe's wage-earning ability. It does not follow that because the employe sustained a 50-percent loss of physical ability as the result of the injury he also suffered the same proportionate loss of earning ability. If, as held in the Enrico case, there may be a loss of earning ability of one percent or 99 percent where the physical disability is 25 percent, there may be a 100-percent *174
loss of earning ability, where, as here, the loss of physical ability is 50 percent. In determining the amount of compensation, the commission followed the formula prescribed in §
We think that the commission's decision correctly determined the employer's liability for the permanent partial disability caused by the employe's subsequent injury "of itself" and that its apportionment of the permanent total disability by assigning liability to the employer for such permanent partial disability and to the special compensation fund was in accordance with §
Affirmed. *175