Norwich Union Indemnity Co. v. Maynard

LEVY, J. (after stating the facts as above). The proposition of appellant, in effect, presents the points in view that: (1) The court erred in refusing special instruction defining “total incapacity” ; (2) the jury were not warranted in finding permanent loss pi use of the appellee’s right arm; (3) the recovery should have been limited to not exceeding 150 weeks’ compensation; and (4) in the absence of agreement of the parties the court was without authority to commute the payments to a lump sum payment. The court’s main charge sufficiently defined “total incapacity,” and there was no error in refusing special charge. The evidence conclusively established the fact that the appellee’s right arm was broken between the elbow and the wrist, and that there was permanent impairment of the forearm. Such permanent injury to the forearm would consequentially and naturally cause some loss of convenience and lessening of normal effectiveness of the entire arm. The amputation of the hand would be productive of the same disability. Therefore, whether such condition amounts to total loss of the entire aim, as the loss of an arm at the' shoulder, within the Workmen’s Compensation Act, becomes a question of law. The specific injury, of serious and permanent consequence, would control, and, it not being “at or above the elbow,” the incapacity could not be) classed as for the loss of an arm. It must be otherwise classed. And, there being no specific compensation for permanent injury to the forearm between the elbow and wrist, such character of injury should be considered, it is believed, as equivalent to “the loss of , a hand,” for which compensation is allowable “during one hundred and fifty weeks.” Article 8306, § 12, R. S. The commutation of compensation to a lump sum payment is regulated by the act itself. Article 8306, § 15, reads as follows: “In cases where death or total permanent incapacity results from an injury, the liability of the association may be redeemed by the payment of a lump- sum by agreement of the parties thereto, subject to the approval of the Industrial Accident Board. This section shall be construed as excluding any other character of lump sum settlement except as herein specified. In special cases where in the judgment of the board manifest hardship and injustice would otherwise result, the board may compel the association in the cases provided for in this section to redeem their liability by payment of a lump sum as may be determined by the board.” Further, as provided in section 18: “It is the purpose of this law that the compensation herein provided for shall be paid, from week to week and as it accrues, and directly to the person entitled thereto, unless the liability is redeemed as in such cases provided elsewhere herein.” It is quite manifest that this section was intended to be applicable only to the class of cases which is expressly declared to be that of “death or total permanent incapacity” resulting “from an injury.” Within the purview of the act, a person may be totally disabled permanently for work as a result of an injury, or he may be partially disabled permanently or temporarily. It is believed the purpose and intention of the section is to make distinguishment between the two kinds of incapacity or disability resulting from an injury. It does not seem a reasonable construction of the language of the section to hold that the court may, in the absence of an agreement of the parties, against the will of either one, commute the payments to a lump sum payment in case of injury of a forearm or hand, as here, although a permanent injury, yet not amounting to á total incapacity to perform labor. Life Ins. Co. v. Rodriquez (Tex. Civ. App.) 255 S. W. 446. The exception in- the proviso that a lump sum may be awarded when it is “manifest hardship and injustice would otherwise result” is limited to eases “provided for in this section,” namely, of where death or total permanent incapacity is the result. Ins. Ass’n v. Pierce (Tex. Civ. App.) 230 S. W. 872; Ins. Ass’n v. Shilling (Tex. Civ. App.) 259 S. W. 236. In cases of injuries uot of the class specified, commutation to a lump sum is not at all discretionary with *199 the Loará or the court. This is the construction given to a like section in Bailey v. U. S. Fidelity & Guaranty Co., 99 Neb. 109, 155 N. W. 237; State v. Industrial Commission, 92 Ohio St. 434, 111 N. E. 299, L. R. A. 1916D, 944, Ann. Cas. 1917D, 1162; Johansen v. Union Stockyards Co., 99 Neb. 328, 156 N. W. 511. There is no need- to remand the case, and accordingly the judgment is modified, and, as so modified, will be affirmed. It is modified so as to allow compensation of $11.54 per week during 150 weeks, less credits of $323.-12 already paid; the appellees to pay cost of appeal.