Summary
In Wagner v. American Bridge Company, 172 N.Y. App. Div. 876, 158 N.Y. Supp. 1043, the Supreme Court, Appellate Division, of New York, held that deafness was covered by the act, even though not specifically scheduled. It was further said, in that case, that "total deafness, the gravamen of this complaint, obviously impairs plaintiff's industrial efficiency.
Summary of this case from Jirout v. GebeleinOpinion
May 12, 1916.
William W. Corlett [ Henry M. Kidder and Raynal C. Bolling with him on the brief], for the appellant.
Sherwood O. Chichester, for the respondent.
The Workmen's Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41) requires the employer (§ 2) to provide compensation for injuries sustained, or death incurred, by the employees engaged in the enumerated hazardous employments, including under group 21 the manufacture of structural steel — in which this plaintiff was employed.
By section 10, every employer, subject to the provisions of this chapter, is to pay, or provide, compensation according to the schedules of article 2 for the disability or death of his employee resulting from an accidental personal injury sustained by the employee "arising out of and in the course of his employment," without regard to fault as a cause of such injury. Such liability for compensation is declared to be "exclusive," unless the employer fail to secure the statutory compensation as provided under section 50, when the injured employee "may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury." (§ 11, as amd. by Laws of 1914, chap. 316.) The ordinary tort rule of "no liability without fault" sufficed for the earlier and simpler relations of employment. But the increasing loss of life and limb in modern industrialism enabled us slowly to grasp the humane idea of liability merely from the nature of the work. As the perils of a seaman's life give him the right to cure and maintenance at the expense of the ship ( The Osceola, 189 U.S. 158), so the employer in the specified trades, as an incident of his enterprise, must compensate his workmen for their injuries in the employment. The prior right to sue gives place to this substitute, to be administered without the expense, uncertainties and delay of litigation involving the risk of defeat if unable to make out actionable negligence. This new remedy is constitutional. ( Matter of Jensen v. Southern Pacific Co., 215 N.Y. 514.)
The point of the demurrer, therefore, is whether this statute affords compensation for an accidental personal injury sustained by the employee in the course of his employment which results in permanent total deafness in one ear.
Section 15 establishes a schedule of compensation in terms of the average weekly wages for different classes of injuries, viz.: (1) Cases of total permanent disability; (2) temporary total disability; (3) permanent partial disability; and (4) temporary partial disability. Under the class of permanent partial disability are enumerated losses of different bodily members, with a scale of compensation measured by wages, varying according to the degree of injury and deprivation. Then follows:
"Other cases. In all other cases in this class of disability [ i.e., permanent partial disability], the compensation shall be sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the Commission on its own motion or upon application of any party in interest."
The employer, or his insurer, is to provide compensation for all personal injuries that involve permanent or temporary disability, whether total or partial. The particular injuries set out in the schedule are merely examples to aid in administering the statute. The enumeration does not profess to be exclusive.
The jurisdiction to construe the Workmen's Compensation Law ordinarily is exercised through appeals from the decision of the Workmen's Compensation Commission or of its successor, the State Industrial Commission. (§ 23.) Nevertheless it arises here incidentally. On these pleadings we cannot hold that the injury sued for is excluded from the terms of that statute. Hence, on demurrer, this defense is not on its face insufficient.
Shinnick v. Clover Farms Co. ( 169 App. Div. 236), relied on below, was where a horse had bitten an employee's ear, causing a part to be amputated. Although this left a disfigurement, it did not impair the injured person's efficiency, and, therefore, his injury did not come in the class of scheduled disabilities. However, total deafness, the gravamen of this complaint, obviously impairs plaintiff's industrial efficiency. The amount and extent of this disability as gauged by the wage-earning capacity could be ascertained in like manner as other disabilities which now are being compensated by the Commission.
The order should be reversed, with ten dollars costs and disbursements, and the plaintiff's demurrer overruled, with ten dollars costs.
JENKS, P.J., CARR, STAPLETON and RICH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer overruled, with ten dollars costs.