193 P. 821 | Utah | 1920
There is no controversy in this case concerning tbe facts. On October 8, 1918, one Irvin Wimber, while in tbe employ of tbe plaintiff coal company, was severely injured in bis left leg resulting in the complete loss thereof. Two days after-wards tbe limb was amputated at tbe knee joint, and a period
The applicant filed his petition under the Industrial Act for compensation. The commission found the above facts, and made its award for the sum of $12 per week from October 19, 1918, to and including November 15, 1919, in the sum of $674.38 on account of temporary total disability, and in addition thereto awarded compensation for the loss of the limb for a period of 150 weeks at $12 per week, not to exceed the sum of $1,800. Other allowances were made, but they are not involved in the question presented for our consideration.
This is an action to review the proceeding. But one question is involved, Did the commission exceed its jurisdiction in allowing compensation for the loss of the leg and in addition thereto compensation for temporary total disability? Plaintiffs strenuously contend that the law as it existed at the date of the accident permitted only compensation for the loss of the leg, as specifically provided in Comp. Laws Utah 1917, § 3138. Defendant, contends that compensation should also be allowed as provided in section 3137. A solution of the question can best be determined by quoting in full the sections referred to and interpreting their meaning. We have italicized such portions of the sections as we deem of special significance in view of the argument and matter to be determined.
3137. “In. case of temporary disability, the employé shall receive 55 per cent, of his average weekly wages so long as such disability is total, not to exceed a maximum of $12 per week, and not less than a minimum of $7 per week; but in no case to continue for fore than six years from the date of the injury, or to exceed $4,500.”
3138. “Where the injury causes partial disability for work, the employé shall receive, during such disability and for a period of not to exceed six years beginning on the eleventh day of disability, a weekly compensation equal to 55 per cent, of the difference between his average weekly wages before the accident and the weekly wages he is able to earn thereafter, but not more than $12 a week. In no case shall the weekly payments continue after the disability ends, and in case the partial disability begins after a period of total disability the period of total disability shall be*211 deducted from such total period of compensation. In the case of the folloioing injuries the compensation shall be 55 per cent, of the average weekly wages, but not more than $12 to be paid weekly for the periods stated against such injuries respectively, to wit:
“For loss of:
One arm at or near shoulder.200 weeks
One arm at the elbow.180 weeks
One arm between the wrist and the elbow.160 weeks
One hand .150’ weeks
One thumb and the metacarpal hone thereof. 60 weeks
One thumb at the proximal joint. 30 weeks
One thumb at the second distal joint. 20 weeks
One first finger and the metacarpal bone thereof. 30 weeks
One first finger at the proximal joint. 20 weeks
One first finger at the second joint. 15 weeks
One first finger at the distal joint. 10 weeks
One second finger and the metacarpal bone thereof. 30 weeks
One second finger at the proximal joint. 15 weeks
One second finger at the second joint. 10 weeks
One second finger at the distal joint. 5 weeks
One third finger at the metacarpal bone thereof. 20 weeks
One third finger at the proximal joint. 12 weeks
One third finger at the second joint. 8 weeks
One third finger at the distal joint. 4 weeks
One fourth finger and the metacarpal bone thereof. 12 weeks
One fourth finger at the proximal joint. 9 weeks
One fourth finger at the second joint. 6 weeks
One fourth finger at the second joint. 6 weeks
One fourth finger at the distal joint. 3 weeks
One leg at or so near the hip joint as to preclude the use
of an artificial limb.180 weeks
One leg at or above the knee where stump remains sufficient to permit the use of an artificial limb.150 weeks
One leg between the knee and ankle.140 weeks
One foot at the ankle.125 weeks
One great toe with the metatarsal bone thereof. 30 weeks
One great toe at the proximal joint. 15 weeks
One great toe at the second joint. 10 weeks
One toe other than the great toe with the metatarsal hone
thereof . 12 weeks
One toe other than the great toe at proximal joint. 6 weeks
One toe other than the great toe at second or distal joint 3 weeks
One eye by enucleation.120 weeks
Total blindness of one eye.100 weeks
“The amounts specified in this section are all subject to the limitation as to the maximum weekly amount payable as herein-*212 before 'specified in this section, and in no event shall more than a total of $4,500 be required to be paid.”
It will be noted, that the first sentence of section 3138, down to and including the word “compensation” relates to partial disability on account of injuries not resulting in the loss of a member, and allows compensation therefor at $12 per week while the disability continues, not exceeding six years, while the remainder of the section relates to permanent partial disability on account of the loss of a member and allows as compensation therefor a fixed and definite amount. As to these amounts the commission has no discretion; when the loss of the member is ascertained the law specifically determines the compensation. As to injuries of this character the section last quoted reads:
“In the case of the following injuries the compensation shall be 55 per cent, of the average weekly wages, but not more than $12 to be paid weekly for the periods stated against such injuries respectively, to wit._”
Then follows an enumeration of specific injuries, consisting in each case of the loss of a member, and the number of weeks for which the person injured is entitled to compensation.
The meaning of the language last quoted, together with the enumeration following, standing alone, seems to the writer to be plain and unambiguous. It means that for the injuries specified a definite sum is allowed, payable in weekly installments for a fixed and definite period. As applicable to the case at bar, the section provides that for the loss of a leg at or above 'the knee where the stump remains sufficient to permit the use of an artificial limb the compensation shall be $12 per week for a period of 150 weeks.
The Attorney General, appearing for the defendant, ingeniously contends that, inasmuch as the latter part of the section contemplates that the total sum of $4,500 may be paid in some cases while the maximum allowed for the loss of a member, as in the ease of an arm at or near the shoulder, is only $2,400, therefore it must have been contemplated by the Legislature that other compensation than that specified in the schedule, might be allowed not exceeding the sum of
The particular provision of the statute with which we are immediately concerned, as we have shown, reads:
“In tlie case of the following injuries the compensation shall he 55 per cent, of the average weekly wages, hut not more than $12 to he paid weekly for the period stated against such injuries, to wit: * * *
“One leg at or above the knee where stump remains sufficient to permit the use of an artificial limh. * * * ”
We are constrained to hold that the language last quoted
The facts in the present case are singularly free from complication. It does not appear that there was any injury or disability whatever resulting from the' accident except the loss of the leg. No other member of the body was affected, and the temporary total disability for which the applicant was awarded additional compensation resulted entirely from the loss of the leg, and continued until he was supplied with an artificial limb. By no process of reasoning can we arrive at any other conclusion than that the total disability for which the applicant was awarded additional compensation was attributable to the loss of the limb. If this be true, it seems to us the additional compensation was not justified by anything contained in the statute.
Most of the authorities relied on by defendant deal with cases in which other injuries were received in addition to the loss of a member. In such cases it may be that compensation should be allowed for such total disability as is attributable to such injuries. That question, however, is reserved until a proper case is presented for its determination.
Plaintiff’s attorney calls our attention to the fact that since this accident occurred, section 3138 as above quoted has been amended so as to allow compensation for' temporary total disability in addition to compensation for loss of a member. The amendment follows the word "respectively” in the second line from the bottom of the page as the same appears in Comp. Laws Utah 19.17, § 3138, and reads as follows:
*215 “And shall he in addition to the compensation hereinbefore provided for temporary total disability, to wit. * * *” Sess. Laws, 1919, § 3138, p. 161. (Italics ours.)
Plaintiff insists that this amendment authorizes the defendant to allow compensation for temporary total disability in a case of this hind, a power which it did not possess before. ¥e find it difficult to avoid the logic of this contention. To say that the amendment made in 1919, after an experience of two years’ administration of the law, adds nothing to the meaning of the statute as it was enacted in 1917, which we have heretofore quoted, is venturing further than the court is willing to go. In our opinion it is more consistent with the legislative intent to assume that the Legislature in 1919 arrived at the conclusion that in eases of this kind compensation should be allowed for temporary total disability in addition to the compensation for the loss of a member, and so made the amendment referred to, and thus supplied an omission which would not have been made by the Legislature of 1917 if it had had the same experience.
In view of the conclusion at which we have arrived, it would seem a useless task to review the authorities presented by counsel representing the respective parties. These will no doubt be cited by the reporter in his report of the case. It is sufficient to say that none of the authorities cited on the part of the defendant are exactly in point, nor are they sufficiently analogous to furnish reasonable grounds for arriving at a different conclusion. As before suggested, the authorities relied on by defendant, in nearly every instance, allowed additional compensation only in eases where there were other injuries in addition to the loss of a single member. The authorities cited by plaintiff generally support the conclusion which the court feels bound to adopt.
The defendant was not authorized to allow compensation for temporary total disability in addition to compensation for the loss of the leg.
It is therefore ordered that the award as made be set aside, and the defendant is directed to proceed in accordance with the views herein expressed.