Opinion
No. 28535.
July 14, 1953. Rehearing Denied September 11, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Not to be reported in State Reports.
Flynn Parker and George J. Meiburger, St. Louis, for appellant.
J. C. Jaeckel and Moser, Marsalek, Carpenter, Cleary Carter, St. Louis, for respondents.
This is a proceeding under the Workmen's Compensation Law, Sections 287.010- 287.800, RSMo 1949, V.A.M.S. The appeal is by the employee from the judgment of the circuit court affirming the award of the industrial commission for a less amount of compensation than that to which the employee believes he is entitled.
The employee received an injury to his back on March 17, 1950, by accident arising out of and in the course of his employment.
The commission found that as a result of his injury the employee had sustained a 25% permanent partial disability to his body as a whole. His earnings were such that he was entitled to be compensated at the then maximum rate of $25 a week.
The portion of the act which deals with the computation of compensation for permanent partial disability is Section 287.190, which, for practical advantage has been separated into subdivisions. The first subdivision enumerates 46 injuries involving the complete or partial loss of definitely specified members of the body, and prescribes the number of weeks for which compensation shall be paid for each of such injuries sustained. Following such enumeration the second subdivision then provides that for the great mass of permanent injuries of varying severity and extent and not confined to the complete or partial loss of a definitely specified member of the body, compensation shall be paid for such periods as are proportionate to the relation which the particular injury bears to the injuries specified, but not to exceed 400 weeks.
Since the case was one of permanent partial disability resulting from an injury not specifically scheduled under the first subdivision, the commission, in fixing the period during which compensation should be paid, proceeded to act under the second subdivision by applying the percentage of disability to the maximum number of weeks allowed. In other words, since the disability had been found to amount to 25% of the body as a whole, the commission determined that the compensable period should be 25% of 400 weeks, or 100 weeks; and then by multiplying 100 weeks by the compensation rate of $25 a week, arrived at the figure of $2,500 as the total amount of compensation to which the employee was entitled.
The whole point in the case, just as it has been from the beginning, is whether the commission acted properly in adopting the formula of Section 287.190 in fixing the employee's compensation, or whether it should have adopted the formula of Section 287.200, which deals with the computation of compensation for permanent total disability.
At the time as of which the compensation was to be computed, this section provided that for permanent total disability, compensation should be paid on the basis of 66 2/3% of the average earnings during 300 weeks, but not less than $8 nor more than $25 a week, and thereafter on the basis of 25% of the average earnings for life, but not less than $8 nor more than $18 a week.
Since the disability had been found to amount to 25% of the body as a whole, the employee points out that under this formula he would have been entitled to receive 25% of the amount that would have been paid for permanent total disability, subject only to the overall limitation of 400 weeks prescribed by Section 287.190 as the maximum period for which compensation may be paid for permanent partial disability. But inasmuch as the maximum compensation then allowable under Section 287.190 would have been $10,000 (400 weeks at $25 a week), and inasmuch as the employee's compensation computed under Section 287.200 would have exceeded $10,000, he concedes that he could not have been allowed more than $10,000, but does insist that he was entitled to an award of such amount rather than to an award of merely $2,500 as the commission found.
This means that the amount in dispute between the parties is the difference between $10,000 and $2,500, or $7,500, so that appellate jurisdiction is vested in this court. Const. of 1945, Art. V, Secs. 3, 13, V.A.M.S. This figure of course marks the very limit of our jurisdiction measured in terms of the amount in dispute, but it is only where such amount exceeds the sum of $7,500 that appellate jurisdiction is in the Supreme Court.
While the employee has argued his point with conviction, we nevertheless cannot agree that his compensation should have been computed under Section 287.200 rather than under Section 287.190.
It is no objection to the application of the second subdivision of Section 287.190 that the injury sustained to the employee's back may have had no direct physical connection with any one of the 46 specific injuries enumerated in subdivision one. On the contrary, the very purpose of the second subdivision is to serve as a catchall for injuries other than those enumerated in subdivision one, Dauster v. Star Mfg. Co., Mo.App., 145 S.W.2d 499; and it has already been held that where the particular injury for which compensation is to be paid does not have a direct physical connection with any of the injuries enumerated in subdivision one, the commission may do precisely what it did in the present case — fix the compensable period in its relation to the maximum period of 400 weeks, considered from the standpoint of the percentage of disability in the normal functions of the injured man himself. Chapman v. Raftery, Mo.App., 174 S.W.2d 352.
In other words, even though an injury to the back may have no direct physical connection with the complete or partial loss of an arm or a leg or some other stated member of the body, yet it does have a relation to such a loss in the sense of the comparable degree of disability which the respective injuries may produce. Every one of the 46 specifically enumerated injuries entitles the injured employee to compensation for a given period of weeks out of the maximum period of 400 weeks; and when the commission, in its discretion, fixes the disability from an unscheduled injury at a percentage of the normal functions of the body as a whole and awards compensation for such percentage of 400 weeks, it is thereby measuring the disability in terms of the relation which the particular injury bears to the injuries specified in subdivision one.
The case at bar is purely one of permanent partial disability for which the act affords a definite method for the computation of compensation, and the commission would have had no right to compute the compensation under the formula provided for cases of permanent total disability. which this was not. If the situation is ever to be otherwise, it can only be by action of the Legislature in changing the law as it now exists.
The judgment of the circuit court affirming the award of the commission should itself be affirmed; and it is so ordered.
ANDERSON, J., and DEW, Special Judge, concur.