67 N.E.2d 536 | Ohio | 1946
Lead Opinion
The question to be determined is whether a hand which is permanently and totally useless to such an extent that employment is limited to work with the other hand is alost hand within the meaning of the schedule of losses in Section 1465-80, General Code (114 Ohio Laws, 34).
It may here be noted that compensation for temporary total disability or for impairment in earning capacity, such as was received by the relator, does not preclude the right of an employee, in a proper case, to receive further compensation for any loss sustained which is covered by the schedule of losses set out in Section 1465-80, General Code. State, ex rel. Young, v. Industrial Commission,
It is the contention of the relator that the loss of theuse of his hand is the "loss of his hand," which under the statute would entitle him to additional compensation *621 in the sum of "66 2/3 per cent of the average weekly wages during 165 weeks," but not to exceed the sum of $4,000. On the other hand, the commission contends that the term "loss" as used in the statute means loss by severance.
The relator further claims that this court recognized the principle for which he contends, in the case of State, ex rel.Schindler, v. Industrial Commission (1932),
Although the workmen's compensation law must be liberally construed, rights under the law arise wholly by reason of legislative enactment. This court cannot enlarge the language of the statute but can only give effect to the intent of the General Assembly as expressed by the language used by it. We are therefore *622 called upon in this case to construe the intent expressed by the use of the word "loss" as it appears in the statute.
From the context of the statute, we are of the opinion that the word "loss" as used therein means loss by severance, and that the loss of a use of a member is not the equivalent of the loss of such member. The context of the statute clearly shows that the General Assembly possessed a clear and discriminating appreciation of the significance of the difference in meaning between the "loss" and the "loss of the use" of the different members of the body. It is very significant that when the cause of action arose in the case of State, ex rel. Schindler, v.Industrial Commission, supra, the statute provided compensation for the "loss of an eye," but evidently recognizing the harshness of a rule which requires the enucleation of the eye before full compensation can be awarded, the General Assembly amended the section of the statute ([1931] 114 Ohio Laws, 36) by changing the phrase "loss of an eye" to "loss of the sight of an eye," giving clear recognition to the distinction between the terms "loss" and "loss of the use" of a member.
It is also significant that the General Assembly did not change the statute in this respect as to any member of the body other than the eye. The statute still provides for the "loss," but not for the "loss of the use," of the hand, the arm, the foot and the leg, and we must construe the word "loss" to mean the loss of such members by severance.
There is another significant key to the meaning of the word "loss" as used in the statute in question. The same statute, Section 1465-80, General Code, provides certain compensations for the loss of portions and fractional parts of members of the body. For instance, it provides compensation for the loss of a thumb and of the several fingers of the hand; and for the loss *623 of fractional parts of the thumb and fingers; and the same as to the toes. Clearly, in such cases, the word "loss" means loss by severance. It cannot reasonably mean the loss of the use of such part or fractional parts. In addition there is separate provision made for the loss of the use of a finger or thumb or parts of either by ankylosis or contractures, another clear distinction between "loss" and "loss of the use." Since the word "loss" as used in these instances clearly connotes loss by severance, we are forced to the conclusion that the word has a like significance when used with reference to the hand.
It is a well-recognized rule of statutory construction that where the same word or phrase is used more than once in a statute, in relation to the same subject and the same purpose, if it is clear in one connection and doubtful or obscure in another, it will have the same construction in the latter as in the former, unless a different construction is plainly called for. Rhodes v. Weldy,
Several states have provided by specific statutory enactments that the loss of the use of a bodily member shall be equivalent to the loss of such member. Hull v. United States Fidelity G.Co.,
The relator cites a number of cases involving indemnity insurance contracts, each providing indemnity *624
for the loss of a hand, arm or leg. In each of such cases the court has held that the partial severance or severe mangling of a member rendering it useless constitutes a loss of the member. In those cases, the courts properly construed the language of the contracts strictly against the indemnitor and liberally in favor of the indemnitee. Among such cases are Supreme Court ofHonor v. Turner,
Under the compensation acts of a few states total loss of the use of a member by reason of partial severance is held to be equivalent to a loss of the member. Northwestern Barb Wire Co.
v. Industrial Commission,
However, in jurisdictions outside of Ohio, the weight of authority appears to be to the effect that there is no "loss" of a member unless there is an actual severance of the member.Norwood v. Lake Bisteneau Oil Co.,
111 A. 383, 18 A. L. R., 1348; Northwestern Fuel Co. v. IndustrialCommission,
In the last above-cited case the court in its opinion said:
"We have carefully examined the authorities submitted and have become convinced that the overwhelming weight of authority and the better reasoned cases involving the construction of workmen's compensation laws support the view that the loss of a member means the loss by severance; that, in the absence of language in the act indicating that the loss of the use of a member is equivalent to the loss of a member, the courts are not authorized to read such construction into the law. The most widely cited case upon this question is Merchant's case, decided in 1919 by the Supreme Court of Maine, reported in
" 'Apart from the context of the statute, the "loss" of a member in the ordinary acceptation of the term implies a physical separation. To lose, in its primary sense, is to "part from or be separated from," Standard Dic. When in ordinary conversation it is said that one has lost his hand or his arm or his leg, nothing else is understood than an actual severance. It is true that for the sufferer the loss of the use of a member may be equivalent to the loss of the member itself so long as the disuse remains, but the two things are quite distinct and if one has lost the use of a member it would *626
be so described and never as the loss of the member. "It may be the disability would be as great as though the hand or foot was gone but the courts have no authority to extend the terms of the law beyond its plain provision," Bigham v. Clubb,
Under our statute, we find that a legislative interpretation has been given to the term "loss" of a member of the body which we cannot disregard and which must be applied in the instant case.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER and MATTHIAS, JJ., concur.
Dissenting Opinion
The Workmen's Compensation Act in terms commands a liberal construction thereof in favor of the injured workman. Numerous well reasoned cases construing workmen's compensation acts can be found which hold that the loss of the use of a member is loss of the member.
See Northwestern Barb Wire Co. v. Industrial Commission,
We think the liberal construction commanded by the act requires the same result as has been achieved in cases construing indemnity contracts which provide for indemnity for the loss of a member. In such cases the holdings are that an injury which renders the member useless constitutes a loss of such member. See Supreme Court of Honor v. Turner,
In our view the judgment below should be reversed.
