2 S.E.2d 252 | W. Va. | 1939
The Wheeling Metal Manufacturing Company, a subscriber to the Workmen's Compensation Fund of this state, brings for review an award of permanent total disability to its employee, I. Lawrence Wood, by the Workmen's Compensation Commissioner and affirmed by the Appeal Board.
In 1912, the claimant, while working for the Metal Company, received an injury which resulted in the amputation of his right forearm about two inches below the elbow. After recovery from the amputation, he remained in the service of the same employer and in January, 1938, in the course of and resulting from his employment, he received a severe injury to his left hand. This injury necessitated the amputation in greater or less degree of the index, middle and ring fingers. Also, the injury resulted in serious impairment of the flexibility of his thumb and little finger. The employer makes the formal objection that this is not a case wherein total permanent disability resulted from the sum of the injuries.
Clearly the man is incapacitated from labor. That consideration should be controlling, rather than the sum of the statutory allowances of 50 per centum for loss of a forearm and of 20 to 25 per centum on account of impairment of the remaining hand. Therefore, we are of opinion that the Commissioner's finding of total disability, approved by the Appeal Board, was warranted, and should not be disturbed on this review. *157
The gravaman of this appeal involves the monetary charge made by the Commissioner against the employer on account of the total disability award to the claimant. By the Commissioner's order an entry of $4,000.00, representing the average cost of total disability cases in this class of employment, was made against the employer. The correctness of this charge is challenged by the employer and upheld by the Attorney General on behalf of the Commissioner.
The initial enactment of the Workmen's Compensation Law in this state was in 1913. The claimant having been injured in the preceding year, this case has the same general background of facts as the case of McDaniel v. Workmen's Compensation AppealBoard,
In urging that there be reconsideration of the quoted enunciation in the McDaniel case the Attorney General takes the position that it is not in conformity with Code,
Our determination that it was error to charge the employer with the full amount of the total disability award gives approval to one of the assigned points of error. In addition to the foregoing proposition, the employer takes the position that it was error (a) to take into consideration, in fixing the amount of the award, the impaired condition of the claimant due to the accident of 1912; (b) to cumulate the effects of the two accidents, thus giving the claimant a higher rating of disability than the sum of the statutory ratings for the respective injuries; (c) to charge to the employer any part of the award attributable to disability arising from the accident of 1912, or brought about by cumulation of the two accidents. In conformity with these points of error, it is urged that where a maimed employee receives a later injury which, together with the prior impairment, renders the employee totally disabled, there should not be a total-disability award but a partial-disability award based solely on the later injury. Such is the holding of some of the courts. Illustrative:Weaver v. Maxwell Motor Co.,
We recognize fully that any statutory enactment or judicial decision which would have the effect of placing on employers of previously injured men a burden wholly *160
disproportionate to the responsibility which attends the employment of unimpaired men, would probably have the unfortunate result of deterring employers from taking into their employment men who had received bodily impairment. Such consequence would, of course, create a greivous situation. However, in this state, in both enactment and decision effort has been made to guard against creating a condition which would prompt employers to discriminate against employees who had suffered some physical impairment. That thought was emphasized by this court in the McDaniel case. And then, too, the legislature has taken cognizance of the same matter. Section 9(a), Article 4, Chapter
So, in the McDaniel case this court, recognizing the legislative policy, made a decision which was deemed to afford full protection to the injured employee, and to safeguard the employer from hardship. In the instant case, for the reasons set forth in the McDaniel case and herein elaborated, we adopt the same basis of determination.
Section 9(b) of Article 4, Chapter
For the reasons above set forth we affirm the action of the Appeal Board and the Commissioner in making a total permanent disability award to the claimant, but we reverse that portion of the Commissioner's order, affirmed by the Appeal Board, which makes a charge of $4,000.00 against the employer on account of the award to the claimant. We remand the case for further proceedings in accord with the principles stated in this opinion.
*163Affirmed in part; reversed in part; remanded.