This case was tried on an agreed statement of facts, and from the judgment rendered this appeal is prosecuted. The agreed statement of facts may be summarized, for the purposes of this opinion, as follows:
On February 21, 1920, the Southwestern Oil Development Company was a subscriber under the provision of the Workmen's Compensation Law of Texas, and at that time *Page 855 carried a policy of insurance with the Maryland Casualty Company, and at that time was engaged in drilling oil wells near the town of Desdemona, Tex. On the day mentioned Virgil B. Ferguson was in the employ of the Southwestern Oil Development Company as a tool dresser, and as such employee was covered by said policy of insurance. While so engaged, and in the course of his employment, Ferguson sustained injuries to his left forearm, of such a nature as to temporarily cause a total disability from engaging in his usual occupation. The average weekly wages of Ferguson, made the predicate for his compensation, is $86, and so long as the total disability lasted he was entitled to compensation at the rate of $15 per week.
In January, 1921, Ferguson underwent an operation, resulting in his recovery from his total disability, and from and after June 27, 1921, he suffered a permanent partial disability of 25 per cent. as related to the use of his arm. Ferguson is entitled to compensation (permanent disability) at the rate of $15 per week from March 1, 1920, to June 27, 1921, both days included, a period of 69 weeks. Ferguson is entitled to compensation for permanent partial disability in such sums weekly as may be provided by the Workmen's Compensation Law of Texas, from and including the 28th day of June, 1921, for a period of 131 weeks.
The Maryland Casualty Company paid compensation to Ferguson from and including March 1, 1920, to April 2, 1921, at the rate of $15 a week (57 weeks), a total of $855, in addition to all physician's and hospital bills. On April 2, 1921, on account of a disagreement between the company and Ferguson as to the weekly compensation that should be paid for his partial recovery from total disability, the company ceased to pay the weekly compensation and submitted the matter in controversy to the Industrial Accident Board for determination.
On July 1, 1921, the Industrial Accident Board rendered its decision and award to the effect that the company should pay to Ferguson the sum of $1,035 for the period of his total disability, and further adjudged that the company should pay compensation at the rate of $12.90 per week for the period of 131 weeks, beginning on June 28, 1921, for permanent partial disability. The company duly gave notice that it would not abide by the decision of the board, and duly instituted this suit to set aside the board's decision and award; the contention of the company being that $3.75 per week for the period of 131 weeks is the proper amount, and not $12.90, as awarded by the board.
Ferguson, by proper answer filed, seeks Judgment for the $1,035 for total disability, less the $855 paid, and the $12.90 for the 131 weeks, beginning with June 28, 1921. It was agreed that whatever amount Ferguson recovered, one-third of such recovery should be for the use of his attorneys, and the judgment so states.
On the trial before the district court, Ferguson recovered judgment for the total sum of $1,867.90, being the $1,035 for the period of total disability, less $855 paid thereon, and in addition judgment for $1,689.90 for the period of the remainder of the 131 weeks of partial disability at the rate of $12.90 per week, beginning with June 28, 1921, payable weekly, one-third of the entire sum to be for the use of Ferguson's attorneys, Scott, Brelsford, Funderburk Ferrell.
Under the agreed statement as above, there is but one question presented here, viz.: Is Ferguson, under the Workmen's Compensation Act of March 28, 1917, now articles 5246 — 1 to 5246 — 91, Vernon's Texas Civil Statutes Supp. 1918, entitled to receive for his permanent partial disability as related to his left forearm, the sum of $12.90 per week for the 131 weeks, as award by the board and the judgment of the trial court, or should his compensation therefor be the sum of $3.75 per week for said period, as claimed by appellant?
The compensation fixed by the statute is determined according to the percentage of incapacity. Article 5246, subdivision 19, part 1, providing compensation for partial incapacity, reads:
"While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to sixty per cent. of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity, but in no case more than $15.00 per week."
Subdivision 21, part 1, of the same article, providing compensation for special injuries, reads as follows:
"For the injuries enumerated in the following schedule the employé shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent. of the average weekly wages of such employee, but not less than $5.00 per week nor exceeding $15.00 per week, for the respective periods stated herein, to wit: [Then follow the schedule, in each basing the compensation upon 60 per cent. of the average weekly wages for the weeks stated, and in the latter portion of the same subdivision providing for cases of partial incapacity not otherwise specifically mentioned in the schedule, and stating that compensation therefor shall be determined according to the percentage of incapacity taking into account the matters mentioned, the subdivision then concludes:] The compensation paid therefor shall be 60 per cent. of the average weekly wages of the employé but not to exceed $15.00 per week, multiplied by the percentage of incapacity caused by the injury for such period as the board may determine" — in this case 131 weeks, as agreed. *Page 856
The permanent partial incapacity of the forearm, as here, if not specifically stated and provided for in the schedule in subdivision 21, the compensation therefor is provided for incapacity to the forearm in the expression "in all other cases" of partial incapacity, and should it be held that different methods of computation are contemplated under subdivisions 19 and 21, we need not try to harmonize the two subdivisions, if not harmonious. Both subdivisions 19 and 21 provide for a maximum average weekly compensation for the injury sustained. We understand the meaning and the application of the statute in fixing the compensation not to exceed $15 per week to be that in no case shall compensation be greater than $15 per week. To make the compensation to be paid in this case to be 60 per cent. of the amount of the reduced incapacity by reason of the injury, as was done by the board and the trial court, would not do violence to either of the above subdivisions.
The above construction of the statute would entitle Ferguson to $12.90 per week for the 131 weeks. The judgment of the trial court is in all matters affirmed.
Loading…