In Nowlin v. Mississippi Chemical Co., supra, 219 Miss. 873, 70 So.2d 49, 51, it was said: "Appellant finds some authority for his contention in decisions of the Louisiana and Texas courts.Summary of this case from G. E. Moore Co. v. Walker
February 1, 1954.
1. Workmen's Compensation — partial loss of use of leg — claim for permanent disability — to do accustomed work — denied.
Pipefitter suffering partial loss of use of his leg as result of injuries sustained in course of his employment was not entitled to workmen's compensation benefits for 450 weeks on ground of his permanent disability to do the type of work in which he was experienced, but was entitled to compensation only for proportionate part of maximum period of 175 weeks. Sec. 6998-09 (a), (c) (2, 18, 19), Code 1942.
2. Workmen's Compensation — 35 per cent permanent disability to leg — formula for award.
An employee, suffering 35 per cent permanent disability to leg, was not entitled to compensation of 35 per cent of two-thirds of his weekly wage for 175 weeks, but was properly awarded compensation of $25 per week for 35 per cent of 175 weeks. Sec. 6998-09 (c), (2, 18, 19), Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Yazoo County; M.M. McGOWAN, J.
L. Barrett Jones, Crisler Crisler, Jackson; Lemuel C. Parker, Baton Rouge, Louisiana, for appellant.
I. Appellant's case is one of total permanent disability. Anderson v. May (La.), 195 So. 783; Anderson v. H. H. Machine Shop (La.), 32 So.2d 115, 118; Barr v. Davis Bros. Lumber Co., 183 La. 1013, 165 So. 185; Brown v. Furr, 19 So.2d 288; Butzman v. Delta Ship Bldg. Co., Inc. (La. App.), 21 So.2d 80; Cobb v. A.G. McKee Co. (La. App.), 45 So.2d 432; Cox v. Black Diamond Coal Mining Co. (Tenn.), 93 F. Supp. 685; Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Equitable Life Assur. Society v. Serio, 155 Miss. 833, 52 So.2d 916; Gilmore v. George W. Garig Transfer Co., Inc., 33 So.2d 99; Hibbard v. Blane (La.), 183 So. 39; Karr v. Armstrong Tire Rubber Co., 216 Miss. 132, 61 So.2d 789; Lala v. American Sugar Rfg. Co. (La. App.), 38 So.2d 415; Lee v. International Paper Co. (La. App.), 16 So.2d 679; Lee v. Minn. Street Ry. Co., 230 Minn. 315, 41 N.W. 433; Lipnick v. New York Life Ins. Co., 211 Miss. 833, 52 So. 916; Locomotive Engineers' Mut. Life Acc. Ins. Co. v. Meeks, 157 Miss. 97, 127 So. 699, 701; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148; McKenzie v. Standard Motor Car Co. (La. App.), 15 So.2d 115; Metropolitan Cas. Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114; Morgan v. American Bitumuls Co. (La.), 47 So.2d 739; M.T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So.2d 300; Mutual Ben. Health Acc. Assn. v. Matthews, 169 Miss. 187, 142 So. 494; Newsom v. Caldwell McCann (La.), 51 So.2d 393; Saltzman v. Lone Star Cement Corp., 55 So.2d 679; Scott v. Hillyer, Doutsch, Edwards, Inc., 217 La. 596, 46 So.2d 914; Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6; Vila v. Travelers Ins. Co., 24 So.2d 485; Washington v. Holmes Barnes, Ltd. (La. App.), 4 So.2d 51; Sec. 6998-09, Code 1942; Vol. 2, Larson's Workmen's Comp. Law, Sec. 57:51.
II. In the alternate, appellant is entitled to compensation as for the loss of his leg.
III. In the alternate, the method of computation of compensation on the award was erroneous.
Young Daniel, Jackson, for appellees.
I. The injury suffered by claimant having been confined to the right leg, recovery is limited to benefits scheduled for loss or partial loss of use of the leg. Corniak v. Cohen, 150 Pa. Super. 140, 27 A.2d 560; Hlady v. Wolverine Bolt Co., 325 Mich. 23, 37 N.W.2d 576; J.W. Jackson Realty Co. v. Herzberger, 111 Ind. App. 432, 40 N.E.2d 379; Kajundzich v. State Industrial Acc. Comm., 164 Oregon 510, 102 P.2d 924; Lappinen v. Union Ore Co., 224 Minn. 395, 29 N.W.2d 8; McCullough v. Southwestern Bell Tel. Co., 155 Kan. 629, 127 P.2d 467; Morgan v. Standard Acc. Ins. Co. (La.), 51 So.2d 107; M.T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So.2d 300; National Tank Co. v. Gold, 185 Okla. 574, 95 P.2d 235; Raffrael v. Oneida Bleachery, 116 N.Y. Supp.2d 760; Schell v. Central Engineering Co. (Iowa), 4 N.W.2d 399, 143 A.L.R. 576; Smith v. Industrial Comm. of Arizona, 69 Ariz. 399, 214 P.2d 797; Texas Employer's Ins. Assn. v. Thrash (Tex.), 136 S.W.2d 905; Malone's Louisiana Workmen's Comp. Law Pr., Chap. 13.
II. The Commission's award of thirty-five per cent permanent partial loss of use of the right leg is based on substantial evidence and should not be disturbed on appeal.
A. The Commission is authorized under the Mississippi Workmen's Act to find a percentage of disability to a member specified in the schedule. Broderick v. Industrial Comm. (Utah), 224 P. 876; Bronson v. City of Fremont (Neb.), 9 N.W.2d 218; Caddo Quicksilver Corp. v. Barber, 204 Ark. 985, 166 S.W.2d 1; Karr v. Armstrong Tire Rubber Co., 215 Miss. 472, 61 So.2d 300; M.T. Reed Construction Co. v. Martin, supra; New Amsterdam Cas. Co. v. Brown, 81 Ga. App. 790, 60 S.E.2d 245; Pridemore v. Pridemore (Ky.), 249 S.W.2d 774; Smith v. Industrial Comm. of Arizona, supra.
B. The question of percentage of disability to claimant's leg was a factual one and the award made is supported by the evidence and should be affirmed. Barry v. Sanders Co., 211 Miss. 656, 52 So.2d 493; Brown Buick Co. v. Smith's Estate (Miss.), 52 So.2d 664; Mills v. Barrett, 211 Miss. 171, 56 So.2d 485; Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582; Thornton v. Magnolia Textiles, Inc. (Miss.), 55 So.2d 172.
Pyles Tucker, Jackson, Amicus Curiae.
I. The method of computing the award due claimant as used by the Hearing Officer and affirmed by the Commission and the Yazoo County Circuit Court in applying the percentage of disability to the time specified in the schedule for loss of use of the right leg is contrary to the Mississippi Law. Associated Indemnity Corp. v. McGrew, 138 Tex. 583, 160 S.W.2d 912; Brown v. Vacuum Oil Co., 171 La. 707, 132 So. 117; Dohman v. Texas Employers' Ins. Assn., 285 S.W. 848; Falgoust v. Maryland Cas. Co., 22 So.2d 312; Fulmer v. McDade Gin Co., 142 So. 733; Galloway Coal Co. v. Stanford (Ala.), 109 So. 377; Heady v. Wolverine Bolt Co., 325 Mich. 23, 37 N.W.2d 576; Hughes v. Enloe (La. App.), 31 So.2d 878; Industrial Acc. Bd. v. Glenn, 114 Tex. 378, 190 S.W.2d 805; Jodie Sheppherd v. Armstrong Cork Co., and Standard Acc. Ins. Co., M.W.C.C. No. 104570-53-89, Circuit Court No. 13,412; Joseph v. Higgins Lumber Co., 12 La. App. 600, 126 So. 255; Marquess v. Bilwil Min. Co., 166 Kan. 420, 202 P.2d 194; Maryland Cas. Co. v. Ferguson (Tex.), 252 S.W. 854; Maryland Cas. Co. v. Laughlin (5th Cir.), 29 F.2d 343; Millers' Indemnity Underwriters v. Cahal, 257 S.W. 957; Morgan v. Standard Acc. Ins. Co. (La.), 51 So.2d 107; Smith v. Turner Lumber Co. (La. App.), 174 So. 699, 701; Storm v. Johnson (La. App.), 23 So.2d 639; Texas Employers' Ins. Assn. v. Holmes, 196 S.W.2d 390; Thornton v. Haynesville Lumber Co. (La. App.), 155 So. 784; Western Indemnity Co. v. Milam, 230 S.W. 825; Wilson v. Bethlehem Steel Co. (Del.), 7 A.2d 906; 71 C.J., Secs. 1, 65 pp. 345-348; 28 R.C.L., Sec. 50 p. 755; 39 Tex. Jur., Sec. 113 p. 209; Vol. 2, Larson's Workmen's Comp. Law, Sec. 60.11.
APPELLEES IN REPLY TO AMICUS CURIAE, PYLES TUCKER.
I. The method of computation the attorney-referee used in making the award is the only permissible one under the Mississippi Workmen's Compensation Act. Vol. 2, Larson's Workmen's Comp. Law, Sec. 60.11; Webster's New Collegiate Dictionary, word "proportionate."
II. Every jurisdiction having an act similar to that of Mississippi varies the number of weeks for the partial loss or loss of use of a member.
A. There is no conflict in cases from jurisdictions whose Workmen's Compensation Acts provide that partial loss or loss of use of a member may be for proportionate loss or loss of use of the member. Caddo Quicksilver Corp. v. Barber, 204 Ark. 985, 166 S.W.2d 1; Feazell v. Summers (Ark.), 234 S.W.2d 766; Follette v. Voris (C.C.A. 8th Cir.), 205 F.2d 542; Ingraham v. Regan, 23 Miss. 213; Lion Oil Co. v. Reeves (Ark.), 254 S.W.2d 450; Luckenbach S.S. Co. v. Norton (Pa.), 24 F. Supp. 829; Phonville v. New York Cuba S.S. Co., 226 N.Y. 622, 123 N.E. 258; Rowe v. Patrick McGovern, Inc., 14 N.Y. Supp.2d 640, 257 App. Div. 1095; Texas Employers Ins. Assn. v. Sheppeard (Tex.), 32 F.2d 301.
B. Only in those jurisdictions providing for apportionment of amount of compensation is there conflict of authority. Colorado Fuel Iron Co. v. Industrial Comm., 70 Colo. 228, 199 P. 955; Lynch v. Gleaner Combine Harvester Corp., 223 Mo. 196, 176 S.W.2d 554; McCarrell v. Harrisonburg Mutual Tel. Co., 163 Va. 272, 172 S.E. 241; Pappas v. North Iowa Brick Tile Co., 201 Iowa 607, 206 N.W. 146; Spurgeon v. Iowa Missouri Granite Works, 196 Iowa 1268, 194 N.W. 286.
III. Response to suggestions and inferences that the case should be remanded for further testimony.
A. Response to the argument and brief Amicus Curiae. Texas Employers Ins. Assn. v. Holmes (Tex.), 196 S.W.2d 390; Vol. 2, Larson's Workmen's Comp. Law, Sec. 60.11.
AMICUS CURIAE, PYLES TUCKER, IN REPLY TO APPELLEES.
I. Response to appellees' argument that the method of computation the attorney-referee used in making the award is the only permissible one under the Mississippi Workmen's Compensation Act. Hutz v. Ruppert, 218 N.Y. 148, 154, 112 N.E. 750, 752, L.R.A. 1917A, 344; Mutual Implement Hardware Co. v. Pittman, 214 Miss. 823, 59 So.2d 547; Vol. 2, Larson's Workmen's Comp. Law, Sec. 60.11.
II. The rule of liberal construction prevails in this State and narrow or strict cases of other jurisdictions are not controlling on this Court. Baltimore Philadelphia S.B. Co. v. Norton, 284 U.S. 408, 76 L.Ed. 366, 52 S.Ct. 187; Caddo Quicksilver Corp. v. Barber, 204 Ark. 985, 166 S.W.2d 1; Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Follette v. Voris (C.C.A. 8th Cir.), 205 F.2d 542; Griffith v. Gulf Rfg. Co., 215 Miss. 15, 61 So.2d 306; Hardware Mut. Cas. Co. v. Maxey, 212 Ark. 161, 205 S.W.2d 29; Ingraham v. Regan, 23 Miss. 213; Jamison v. Encarnacion, 281 U.S. 635, 74 L.Ed. 1082, 50 S.Ct. 440; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148; Luckenbach S.S. Co. v. Norton (Pa.), 24 F. Supp. 829; Marqueze v. Caldwell, 48 Miss. 23; Miles Sons v. Myatt (Miss.), 61 So.2d 390; Mutual Implement Hardware Co. v. Pittman, 214 Miss. 823, 59 So.2d 547; National Surety Corp. v. Kemp (Miss.), 64 So.2d 723; New York Life Ins. Co. v. Ware, 171 Miss. 341, 157 So. 359, 894; Smith v. Westmoreland, 20 Miss. 665, 12 Sm. M. 665; Texas Employers Ins. Assn. v. Sheppeard (Tex.), 32 F.2d 301.
Stevens Cannada, Jackson, Amicus Curiae, Replying to Pyles Tucker, Amicus Curiae, On Behalf of Standard Accident Insurance Company.
I. The method of calculation used by the Commission in determining the amount of compensation due for partial incapacity of a scheduled member is the only method of calculation authorized by the Mississippi Workmen's Compensation Act. Comparison of Mississippi Workmen's Compensation Act with The Longshoremen and Harbor Workers' Act (Ch. 18, Title 33, U.S.C.A.), the Arkansas, Florida, New York and Texas Workmen's Compensation Acts; Baltimore Philadelphia S.B. Co. v. Norton, 234 U.S. 408, 76 L.Ed. 366, 52 S.Ct. 187; Caddo Quicksilver Corp. v. Barber, 204 Ark. 985, 166 S.W.2d 1; Follette v. Voris (C.C.A. 8th Cir.), 205 F.2d 542; Ingraham v. Regan, 23 Miss. 213; Marqueze v. Caldwell, 48 Miss. 23; Phonville v. New York Cuba S.S. Co., 226 N.Y. 622, 123 N.E. 258; Texas Employers Ins. Assn. v. Holmes (Tex.), 196 S.W.2d 390; 50 Am. Jur., Statutes, Sec. 458.
The inquiry in this case concerns the benefits to which W.M. Nowlin is entitled in his claim, under the Workmen's Compensation Act, for partial loss of use of his right leg.
On September 11, 1950, he was working as a pipe fitter for Mississippi Chemical Company. He fell from a scaffold, 8 or 10 feet high, as the rope broke when he was twisting it for the purpose of moving pipe. He sustained comminuted fractures of the distal ends of the right tibia and fibula. He had several bruises, and the ankle was dislocated. He also complained somewhat of his back. The medical evidence as to his permanent disability consisted of the opinions of two doctors. One was to the effect that the disability to the leg was approximately 25 per cent, and that the mild sprain of the back would cause no permanent disability. The other opinion was that the disability was around 35 to 40 per cent, referable to the leg, and agreed that there was no disability on account of the back. Nowlin was earning $90 per week at the time. He was 51 years of age, had completed the eighth grade in school, and was experienced in no other kind of work, except firing steam boilers.
The hearing officer found that Nowlin has a residual permanent disability to his right leg in the amount of 35 per cent, and directed the payment to him of $25 per week for 35 per cent of 175 weeks. On successive appeals by Nowlin to the full commission and to the circuit court, the finding of the hearing officer was affirmed. He now appeals here.
Appellant contends, first, that he is permanently disabled to do the type of work in which he is experienced, and that he is, therefore, entitled to benefits for 450 weeks. But, secondly, if he is mistaken in that contention, then the correct formula is to take 66 2/3 per cent of his weekly wage of $90, that is, $60, and multiply the same by 35 per cent to ascertain the weekly benefit; and such benefit should then be multiplied by 175 weeks. In other words, the proper formula is $90 x 66 2/3% x 35% x 175. The total compensation, under that formula, would amount to $3,675, whereas, under the formula actually used, it will aggregate $1,531.25.
The provisions of the Workmen's Compensation Law applicable to this question are paragraphs (2), (18) and (19), subsection (c), Section 6, Chapter 412, Laws of 1950, Section 6998-09, Chapter 4, Vol. 5A, Recompiled, Code of 1942 Annotated, and are as follows:
"Member lost Number Weeks Compensation
. . .
(2) Leg 175
". . .
"(18) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member.
"(19) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member."
(Hn 1) In M.T. Reed Construction Company v. Martin, 215 Miss. 472, 61 So.2d 300, Martin, a skilled carpenter, who had followed that occupation since his early youth, and was not trained for any other work, sustained a broken femur bone. Because of his advanced age and physical condition, it appeared most unlikely that he would be able to pursue any other gainful employment, and his inability to do so was held to be the proximate result of the loss of use of his right leg. In answer to his contention, on cross appeal, that he was entitled, because of total and permanent disability, to receive benefits under subsection (a), Section 8, Chapter 354, Laws of 1948, now subsection (a), Section 6, Chapter 412, Laws of 1950, par. (a), Section 6998-09, Vol. 5A, Recompiled, Code of 1942 Annotated, the Court said: "But the disability with which we deal is occasioned by the loss of the use of the leg, and the maximum period for which recovery is permitted, on that account, is fixed arbitrarily at 175 weeks." That case is decisive against appellant's first contention. It has been re-examined, and is now re-affirmed.
(Hn 2) It has been seen, from the provisions hereinabove quoted, that no claimant, for the loss, or the total loss of use, of a leg, is entitled to more than $25 per week for 175 weeks. In other words, if Nowlin's leg had been cut off, or if he had sustained a total loss of the use of the leg, his total compensation in either event, could not exceed $4,375. Now a 35 per cent partial loss of use would entitle him, proportionately, to 35 per cent of $4,375, or $1,531.25. But according to the appellant's contention, the total amount of his benefits should be $3,675. If that position is sound, this result would follow: $3,675 is actually 84 per cent of the maximum benefit which claimant would receive, if he had sustained a total loss of use of his leg. The effect of such a formula would be to write the word "proportionate" in paragraph (19), supra, completely out of the act. Carrying that contention further, if claimant's disability had amounted to 50 per cent, he would then be entitled to $5,250 — more than for the loss, or total loss of use, of his leg. One with a larger weekly wage could obtain a correspondingly larger amount. For instance, under that formula, an employee with a weekly wage of $212, with a 35 per cent partial loss of use of his leg, would be entitled to collect total compensation of $8,600, and thus would receive as much compensation as if he had been blinded in both eyes or had both legs completely severed. Subsection (a), Section 6, supra. The formula, which was adopted by the hearing officer, namely, $25 x 35% x 175 was in accordance with the law.
The Workmen's Compensation acts of Arkansas and New York, on the point here under consideration, have provisions which are very similar to our law. Paragraphs (2), (20) and (21), subsection c, Section 81-1313, Chapter 4, Vol. 7, Arkansas statutes, 1947 Annotated; New York Compensation Law of 1913, as re-enacted by Chapter 41, Laws of 1914, and amended by Chapter 615, Laws of 1922. The formula, which is being approved in this case, has been heretofore adopted by the courts of those states. See Caddo Quicksilver Corporation v. Barber, 204 Ark. 985, 166 S.W.2d 1; Feazell v. Summers, 234 S.W.2d 766; Lion Oil Company v. Reeves, 254 S.W.2d 450; Rowe v. Patrick McGovern, Inc., 257 App. Div. 1095, 14 N.Y.S.2d 640; Phonville v. New York Cuba S.S. Company, 226 N.Y. 622, 123 N.E. 258. Of like effect is Follette v. Voris, 205 F.2d 542 (C.C.A. 8th Cir.); Cert. Den. 74 S.Ct. (Adv. Sheet No. 3, p. 136), which involved a construction of the Longshoremen's and Harbor Workers compensation act, Chapter 18, Title 33, U.S.C.A., the provisions of which act, in this particular, are identical with the corresponding provisions of the Mississippi act.
In Lion Oil Company v. Reeves, supra, where the claimant had sustained a 75 per cent loss of use of his hand, and 150 weeks was the maximum period over which benefits could be paid for the total loss of use thereof, it was held that since the degree of impairment was but 75%, the top allowable of $25.00 per week would be 3/4 of 150 weeks (112 1/2) multiplied by the monetary factor of $25.00.
And in Phonville v. New York Cuba S.S. Company, supra, where there was a 75 per cent loss of use of a hand and 244 weeks was the maximum period over which benefits could be paid for the total loss of use thereof, the Court held that: "The extent of his injuries limits, not the amount of payments, but the time during which they are to continue. If for the loss of a hand that time is 244 weeks, for the loss of three-fourths of the hand it is 183 weeks." The maximum weekly benefit in that case was $20.
Appellant finds some authority for his contention in decisions of the Louisiana and Texas courts. Morgan v. Standard Accident Insurance Company, 51 So.2d 107, and cases there cited; and Texas Employers Insurance Association v. Holmes, 196 S.W.2d 390, and cases there cited. However, if the difference between our act and the statutes, which those cases construe, do not distinguish them from this case, we think that the construction, which is now being placed on our act, is sounder, and we decline to follow those authorities.
All Justices concur except Gillespie, J., who took no part.