Brunstetter Motor Co. v. Brunstetter

CUBEIS ON, V. C. J. This is an original proceeding in this court by the petitioners, Brunstetter Motor Company and Aetna Bife Insurance Company, to review an award of the State Industrial Commission made October 22, 1932, in favor of the claimant, Harry Brunstetter. The record discloses that the accidental injury was caused from spilling burning paint, which injured claimant’s face, neck, shoulders, and eyes, and left a permanent scar on claimant’s neck and right shoulder. That the severe burn, or surgical operations thereon, had injured the seventh nerve and thereby caused a total paralysis of the right side of claimant’s face, making it impossible for claimant to close or “bat” his right eye, or hold his left brow in a straight line, and impaired the proper use of his mouth, thereby causing claimant to be seriously and permanently disfigured. The record further discloses that by reason of the accidental injury claimant has a T-shaped sear, the shaft of which extends down the right side of claimant’s neck to the shoulder and thence cross-wise on the shoulder, which scar and scar tissue have limited the motion of the head and neck to the left, thereby interfering with claimant’s mechanical work, decreasing his wage-earning capacity, and causing him to be permanently partially disabled. The Commission awarded claimant $3,000 for the serious and permanent disfigurement to his face, and 300 weeks’ compensation at $8 per week for his permanent partial disability by reason of reduced wage-earning capacity, under “other cases,” section 13356, O. S. 1931, both awards being made by reason of the same accidental injury. Petitioners contend that the Commission erred in awarding compensation for 300 weeks for permanent partial disability based on a loss in wage-earning capacity without taking into consideration the maximum award of $3,000 made for disfigurement as provided in subdivision 3, section 13356, O. S. 1931. Petitioners urge that the making of such concurrent awards for the same injury would be double compensation. In ether words, it is contended that the Commission erred in making an award for both a disability and a disfigurement arising out of the same injury. The section relied upon by petitioners reads in part: “In case of an injury resulting in the loss of hearing or in serious and permanent disfigurement of the head, face, or hand, compensation shall be payable in an amount to be determined by the Commission, but not in excess of $3,000; provided, that the compensation for the loss of hearing or permanent disfigurement shall not be in addition to the other compensation provided for in this section, but shall be taken into consideration in fixing the compensation otherwise provided.” The first part of the statute, supra, applicable to this case, clearly evidences an intention on the part of the Legislature to allow the injured employee compensation for a serious and permanent disfigurement of the head,-face, or hands in any sum, but not in excess of $3,000, and the Industrial Commission is vested under the statute with jurisdiction to make such an award. To this provision the Legislature attached a proviso which specifically says that compensation for loss of hearing or permanent disfigurement shall not be in addition to the other compensation provided for in this section, but shall be taken into consideration in fixing compensation otherwise provided. We think a fair and liberal interpretation of this statute means that the Industrial Commission can take into consideration the disfigurement in making a finding of pei'manent partial disability. This section has been construed by this court to mean that, where an award has been made for temporary total disability, or for the loss of a specific member, the Commission may, after taking the compensation allowed therefor into consideration, make an independent award for injury resulting in the loss of hearing or in serious or permanent disfigurement of the head, face, or hands, provided the total amount awarded does not exceed the maximum amount that can be allowed under the statute for permanent total disability. See Seneca Coal Co. et *186 al. v. Carter et al., 85 Okla. 220, 205 P. 495; and also, Slater Bros. Turnbuckle & Derrick Co. et al. v. Felton et al., 147 Okla. 28, 294 P. 96; Comar Oil Co. et al. v. Sibley et al., 128 Okla. 156, 261 P. 926; Arrow Gasoline Co. v. Holloway, 122 Okla. 257, 254 P. 98; Hartford Accident & Indemnity Co. v. State Industrial Commission, 87 Okla. 180, 209 P. 775; Dolese Bros. Co. v. Roberts et al., 155 Okla. 198, 8 P. (2d) 756, and Federal Mining & Smelting Co. et al. v. Warman et al., 145 Okla. 281, 292 P. 865. It would be unreasonable to bold that, under the statute in question, the Commission is without jurisdiction to compensate an injured employee for a permanent disfigurement of the head, face, or hand where the same exists independent of a permanent partial disability by reason of reduced wage-earning capacity. To so hold would be to deny the Commission jurisdiction to compensate an injured employee for permanent disfigurement where he has a permanent partial disability by reason of a 35 per cent, limitation of motion of his head and neck to the left, with heavy scar tissue on his neck sensitive to clothing, but suffered a permanent disfigurement to his face in the nature of total paralysis of the right cheek, affecting the mouth and eyebrow lines and the closing of the right eyelid, all entirely independent and apart from the permanent partial disability by reason of reduced wage-earning capacity. The authorities uniformly hold that statutes must be construed so as not to lead to absurd consequences. 25 R. C. L., sec. 223. The presumption being that the Commission acted in accordance with the statute, it is to be presumed that the Commission considered the compensation awarded for serious and permanent disfigurement when making the award for permanent partial disability produced by the same injury. The compensation awarded claimant not being in excess of the amount provided for by the statute for permanent total disability, we are of the opinion that the award made was authorized under the statute and should be affirmed. It is, therefore, so ordered. RILEY, C. L, and MeNEILL, OSBORN, and WELCH, JJ„ concur;, SWINDALL, ANDREWS, BAYLESS, and BUSBY, JJ„ dissent.