16 S.E.2d 81 | Ga. Ct. App. | 1941
Lead Opinion
The superior court erred in affirming the finding of the director, approved by the Industrial Board. The judgment is reversed, with direction that the court reverse the finding above indicated with direction that the award be the sum of $850.63 as originally found by the director.
This case is brought before the Court of Appeals on the question whether the statute of limitations had run as provided by Code, § 114-305. The claim was denied on the ground that it was not filed with the Industrial Board within the twelve-month period allowed from the date of the accident. This court held inBituminous Casualty Corporation v. Mallory,
We come next to determine the amount of compensation which the claimant is entitled to recover. On this point the director held: "The evidence in this case having shown that claimant was confined to bed from the date of the accident to about June 1, 1934, and that thereafter he was only able to hobble about on crutches with his leg in a cast up to approximately November 1, 1934, and that after the cast was removed he was still unable to use the leg sufficiently to return to his regular work until December 7, 1934, claimant during this entire period was suffering a total loss of use of his left leg, and is therefore entitled to compensation at the rate of $15 per week for the total loss of use of his left leg during this period of 35 5/6 weeks, or the total sum of $537.50. The evidence having shown that at the expiration of this period claimant's condition had changed to such an extent that he was able to return to work; and that he thereafter suffered a fifteen per cent. permanent partial loss of use of his left leg, he is entitled to compensation from and including December 8, 1934, at the rate of $2.25 per week for a period of 139 1/6 weeks or a total of $313.13, making a total of $850.63 payable to the claimant as compensation *635 for his injury. Although sections 114-404 and 114-405 provide for compensation on the basis of a decrease in earnings, section 114-406 provides compensation for the loss, or loss of use, of a member irrespective of the earning ability of a claimant after an accident is sustained. In other words, had the claimant in this case sustained a total loss of his left leg, and within ten weeks after the injury occurred had been able to return to his regular job at an increase in his earnings, he would still be entitled to compensation for the total loss of his leg."
The facts in the case of Castle v. Imperial Laundry and DryCleaning Co.,
We think that the law of compensation under the workmen's compensation act as applied to the facts in this case is correctly stated by the director. Therefore, since we have held that the case was properly filed and was in order for final disposition on the merits thereof, we hold that the claimant is entitled to receive the total sum of $850.63. The judgment of the superior court affirming the finding of the director approved by the Industrial Board is reversed with direction that the claimant be allowed compensation in the amount above stated.
Judgment reversed, with direction. Broyles, C. J., andMacIntyre, J., concur.
Addendum
The Industrial Board, however, further found that, at $15 per week, Roddy was entitled to this rate for the 35 5/6 weeks, and at $2.25 per week he was entitled to this rate for a remaining period of 139 1/6 weeks, — the two periods resulting in a total of 175 weeks. We determine now whether these findings were correct.
Movants contend in effect that whatever may be the right of Roddy to compensation for the permanent, partial industrial handicap of 15 per cent. for the number of weeks provided by the statute, he received his wages during the 35 5/6 weeks and was not entitled to "compensation as for the temporary total loss of his member [leg] (during the healing period and before maximum improvement had been reached)." Movants say that the "language of Code section 114-406 and the history of the amendments to that section, will disclose that the legislature there was dealing only with `permanent, partial industrial handicap,' and that it was never the intention of the legislature to compensate an employee for the temporary loss of use of his leg during that time he was working and earning his regular wage."
The Code, § 114-406, provides for compensation for "permanent partial industrial handicap" in the loss of certain members of the *637
body; compensation is provided for "permanent partial industrial handicap" in the "loss of a leg, 50 per centum of average weekly wages during 175 weeks." But under this section, the total loss of the use of a leg is equivalent to the loss of a leg.Travelers Insurance Co. v. Reid,
In the instant case the Industrial Board erred in determining compensation for only 175 weeks, but under the foregoing principles should have applied compensation over a 10 weeks healing period and over a 175 weeks handicap period. The evidence required a finding that the employee sustained a total loss of the use of the leg for 35 5/6 weeks. Over the first 10 weeks compensation must be made as for "total incapacity for work;" the evidence required a finding that the employee was entitled to 10 weeks at $15 per week, or $150. Over the remaining 25 5/6 weeks compensation must be made as for permanent partial industrial handicap in the total loss of the use of the leg; the evidence required a finding that the employee was entitled to 25 5/6 weeks at $15 per week, or $387.50. Deducting 25 5/6 weeks from 175 weeks as the full period of industrial handicap, over the remaining 149 1/6 weeks the employee was entitled to compensation on a 15 per cent. basis as loss of the use of the leg, at $2.25 per week, or $335.62. Accordingly, the award should be in the total of $873.12 less $22.50 representing that sum which arose for the 10 weeks which the Industrial Board failed to apply, since no exceptions are made thereto by the plaintiff in error; leaving the award correctly to remain in the sum as found by the board, in the amount of $850.63.
But the employee for 35 5/6 weeks received his regular wages, by his partial ability to work by telephone and through the assistance of the employer as above indicated. Movants raise two questions: (1) Is the employee entitled to "compensation as for temporary total loss [of the use] of his member during the healing period and before maximum improvement has been reached?" Under *639 the principles already discussed, whether the period in question is the healing period or the industrial handicap period, the answer is in the affirmative. (2) Does the receipt of the regular wages over the 10 weeks healing period and over the 25 5/6 weeks within the industrial handicap period, defeat recovery for those weeks when he was sustaining a "temporary [total] loss of the use of his leg during that time he was working and earning his regular wage?" As to the not over 10 weeks healing period, compensation on the basis provided is mandatory, without reference to the total or partial loss of use of the leg, and without reference to the full or partial ability to earn wages. This period is basically grounded on injury giving rise to industrial handicap, and though compensable as for total incapacity for work, as provided by the Code, § 114-404, it is in no way grounded on injuries characterized by Code, § 114-404, as producing total incapacity for work. As to the succeeding period of 25 5/6 weeks, running as part of the full 175 weeks compensable period, the total loss of the use of the leg for a number of weeks less than the full period in no way prevents such total loss of the use of the leg from being "permanent partial industrial handicap" within Code, § 114-406. Compensation is specifically for the permanent partial industrial handicap,as such (Georgia Casualty Co. v. Jones, supra), without regard to earnings in a greater or less degree than those at the time of the accident or whether earned from the same or other employers.
Castle v. Imperial Laundry Dry-Cleaning Co.,
It is clear that the injury Castle received, though to a member scheduled in Code, § 114-406, was not such as, during the statutory healing period of not over ten weeks, to give rise to a permanent partial industrial handicap either in the loss of, or the loss of the use of, such member. It is equally clear that the court was treating the injury only as that arising within the purview of and requiring compensation directly under the Code, §§ 114-404, 114-405. The loss of the hand would have instantly determined the injury to be that as for permanent partial industrial handicap. The total loss of the use of the hand may, or may not, classify the injury as that of permanent partial industrial handicap; it must become determined whether the injury inherently produces such handicap. It is obvious that Castle was not sustaining any "permanent partial industrial handicap." Accordingly, the fact that Castle received his regular wages over the two two-week periods, for an injury sustained in effect within the purview of Code, §§ 114-404 and 114-405, has no legal bearing upon the question in the instant case, whether the employee is barred, for the period of 35 5/6 weeks, from recovery of compensation under Code, § 114-406, because he earned and received his regular wages. The rule is not altered by the fact that part of the 35 5/6 weeks comprised the full statutory healing period, when during this period the injury was such as gave rise inherently to permanent partial industrial handicap.
The judgment in the case is hereby made to conform to the opinion now rendered on rehearing, and the superior court is hereby directed to remand the case to the Industrial Board with direction that it enter its award to conform to the judgment of this court, to wit: 10 weeks (healing period) at $15 per week, or $150; 25 5/6 weeks at $15 per week, or $387.50; and 149 1/6 weeks at $2.25 per week, or $335.63; or an aggregate of $873.12 less $22.50 deductible for reasons already indicated, or the final sum of $850.63 as the definite amount of the award.
Judgment of reversal, as modified, adhered to, withdirection. Broyles, C. J., and MacIntyre, J., concur. *641