Opinion
1 Div. 422.
June 30, 1942. Rehearing Denied October 6, 1942.
Certiorari to Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Proceeding under Workman's Compensation Act, Code 1940, Tit. 26, § 253 et seq., by B.D. Nolan against the Ernest Construction Company, to recover compensation on account of injury sustained in employment. The employe being dissatisfied with the compensation awarded, brings certiorari.
Reversed and remanded.
Certiorari granted by Supreme Court in Nolan v. Ernest Const. Co., 10 So.2d 547.
The agreed statement of facts is as follows:
"1. That on April 18, 1940, the plaintiff was employed in Mobile County, Alabama, by the defendant, as a pile driver, and that on said date the plaintiff, while so employed, sustained accidental injuries which arose out of the course of his employment.
"2. That the injuries sustained as aforesaid were as follows: The fibula and tibia of the plaintiff's right leg were fractured at a point a short distance above the ankle, entirely below the knee, which said fracture extended into the ankle. The parties hereto are in dispute as to whether these injuries constitute injuries to the "leg" or "foot", as the terms are used in Section 279 of Title 26, Code of Alabama 1940, but they agree that the above described injuries resulted in a 50% permanent and total loss of use, but that the disability was 100% during 40 weeks, leg being in cast for seven months.
"3. That at the time of said accident, the plaintiff was receiving an average weekly wage from the defendant of $31.47 per week.
"4. That the defendant had actual notice and knowledge of the injuries sustained by the plaintiff and admitted that the plaintiff was entitled to compensation under Article Two of the Workmen's Compensation Act of the State of Alabama, as amended. Code 1940, Tit. 26, § 262 et seq.
"5. That the plaintiff has a wife and four children who are dependant upon him within the meaning of Sections 279 and 280 of said Workmen's Compensation Act of the State of Alabama, as amended.
"6. That the defendant paid or caused to be paid to the plaintiff, compensation at the rate of $18.00 per week from April 18, 1940, to March 20, 1941, that is to say, for a total of forty-eight (48) weeks.
"7. That the defendant, after paying compensation at said rate for forty-eight (48) weeks, as aforesaid, and prior to the commencement of this action, offered in writing, to pay the plaintiff the sum of $261.00, said sum being equivalent to fourteen and one-half (14 1/2) weeks' additional compensation, at the rate of $18.00 per week, but this offer was rejected by the plaintiff.
"8. That the defendant stands ready, able and willing to pay or cause to be paid unto the plaintiff, said sum of $261,00, but denies any liability for any greater sum.
"9. That in addition to the compensation paid to the plaintiff, as aforesaid, the defendant also paid or caused to be paid, the actual costs of all the medical and surgical treatment and attention, medicine, medical and surgical supplies, crutches and apparatus obtained by the plaintiff during the first ninety (90) days of disability, the amount expended for this purpose being $186.00.
"10. That the court may take this agreed Statement of Facts, without the introduction of further, other and different evidence by either party, and decide the case on the basis thereof, it being agreed by and between the parties hereto that there are no facts other than those above set out, which might effect the liability, if any, of the defendant to the plaintiff. It is further understood and agreed by and between the parties hereto, however, that neither party admits the materiality of any statement of fact herein made."
Doris Van Aller and Richard J. Demeree, both of Mobile, for appellant.
An injury to the leg is compensable for 175 weeks under Code 1940, Tit. 26, § 279 (C). Some other section of the law referring to amputation, which is not a factor in this case, cannot be applied to reduce the compensable period to the equivalent of the period compensable for loss of a foot. Doullut Ewin v. Seabury, 217 Ala. 285, 116 So. 134. The word "leg", in its commonly accepted meaning, is that part of the limb between the knee and foot, and the foot is the terminal part of the leg. 24 Words and Phrases, Perm.Ed., p. 510; Reno v. Holmes, 238 Mich. 572, 214 N.W. 174; Butler v. Eminent Household, etc., 116 Miss. 85, 76 So. 830, Ann.Cas. 1918D, 1137; Panhandle S.F.R. Co. v. Brown, Tex.Civ.App., 74 S.W.2d 531; Ujevich v. Inspiration Consol. Copper Co., 44 Ariz. 16, 33 P.2d 599. In computing compensation the period of temporary total disability should be paid for and then deducted from the total compensable term. The percentage which the permanent partial disability bears to the remainder of the compensable term is the period of permanent partial disability, and should not be figured against the total compensable term in complete disregard of any temporary total disability. Code 1940, Tit. 26, § 279 B (1), C (3); Ex parte Diniaco Bros., 207 Ala. 685, 93 So. 388; Ex parte Jefferson Slag Co., 209 Ala. 263, 96 So. 138; Galloway Coal Co. v. Stanford, 215 Ala. 79, 109 So. 377; Tennessee C., I. R. Co. v. Shelby, 214 Ala. 87, 106 So. 499; Ex parte Gadsden Car Works, 211 Ala. 82, 99 So. 725; Doullut Ewin v. Seabury, supra.
Smith, Hand Arendall, of Mobile, for appellee.
The injury of appellant, being entirely below the knee, was to a foot, as the term is used in the Workmen's Compensation Act. Code 1940, Tit. 26, § 279; Rakiec v. Delaware, L. W.R. Co., N.J.Sup., 88 A. 953; Travelers Ins. Co. v. Norton, D.C., 30 F. Supp. 119; Harris v. Southern Carbon Co., La. App., 162 So. 430; Norwich Union Ind. Co. v. Maynard, Tex.Civ.App., 300 S.W. 196; Sharcheck v. Beaver Run Coal Co., 275 Pa. 225, 119 A. 135; Harrison v. Joseph Rathbone Lbr. Co., 16 La. App. 207, 132 So. 797; Maryland Casualty Co. v. Landry, Tex.Civ.App., 147 S.W.2d 290; Marshall v. Octavia J. Coal Min. Co., 252 Ky. 460, 27 S.W.2d 697; Louis T. Hooper Tire Co. v. Maneese, 164 Tenn. 51, 45 S.W.2d 1071; Black Diamond Collieries v. Carden, 150 Tenn. 336, 265 S.W. 541; Cone v. Texas Employers' Ins. Ass'n, Tex.Civ.App., 251 S.W. 262. The compensation payable in this case is properly computable by multiplying 125 (the term prescribed for loss of a foot) by 50%, the agreed percentage of loss of use. From the sum of 67 1/2, thus derived, is then deducted 48, the period for which appellant has already been paid, leaving the sum of 14 1/2, the number of weeks for which compensation should be paid. Multiplying 14 1/2 by $18, the amount of weekly compensation, makes the sum due appellant $261, the amount awarded. Galloway Coal Co. v. Stanford, 215 Ala. 79, 109 So. 377; Ex parte Diniaco Bros., 207 Ala. 685, 93 So. 388; Doullut Ewin v. Seabury, 217 Ala. 285, 116 So. 134.
This is a petition for the common law writ of certiorari to review a judgment of the circuit court awarding compensation under the Workmen's Compensation Act. Code 1940, Tit. 26, § 253 et seq.
The case was tried in the court below upon an agreed statement of facts, which is before us. All jurisdictional matters are agreed upon; and the right of plaintiff or petitioner to recover is not controverted or denied.
The contested point is not as to the weekly compensation — that, too, is agreed upon — but is as to how many weeks he is entitled to be compensated. Reference is here made to the entire "Agreed Statement of Facts" as contained in the record, as well as to the opinion of the court below awarding petitioner the compensation specified and adjudged to him therein.
In the said Agreed Statement of Facts it was stipulated that the injuries received by plaintiff (petitioner) were as follows:
"The fibula and tibia of the plaintiff's right leg were fractured at a point a short distance above the ankle, entirely below the knee, which said fracture extended into the ankle. The parties hereto are in dispute as to whether these injuries constitute injuries to the 'leg' or 'foot,' as the terms are used in Section 279 of Title 26, Code of Alabama 1940, but they agree that the above described injuries resulted in a 50% permanent and total loss of use, but that the disability was 100% during 40 weeks, leg being in cast for seven months."
We entertain no doubt that the injuries received by plaintiff, the description of which is quoted just next above, were injuries to his "leg," as that term is used in Sec. 279 of Tit. 26 of the Code of 1940.
The very definition of the word "leg," as given by Webster's New International Dictionary is, specifically, "that part of the limb between the knee and foot." And see Words and Phrases, Perm.Ed., vol. 24, p. 510; Also Panhandle S.F.R. Co. v. Brown, Tex.Civ.App., 74 S.W.2d 531.
And since it is agreed that there was "a 50% permanent and total loss of use" — without specifying "use of what" — and since the well known and uncontroverted rule in "Workmen's Compensation Suits" is to resolve all ambiguities in favor of the claimant, we arrive at the conclusion that claimant, petitioner, suffered a "50% permanent and total loss of use of his leg." And that his compensation should be calculated and awarded accordingly. Code 1940, Tit. 26, § 279(C).
It appearing that there was a period of "temporary total disability," concurrent with a "permanent partial disability," the number of compensation weeks allowed for the temporary total disability must be deducted from the number of compensation weeks allowed for the permanent partial disability, as double compensation for the same period is not allowable. Ex parte A. Diniaco Bros. et al., 207 Ala. 685, 93 So. 388.
The award below was not calculated according to the law as we have stated hereinabove.
The judgment of the circuit court is reversed; and the cause remanded for further treatment in accordance with what we have written.
Reversed and remanded.