Richardson v. Maryland Casualty Co.

Bell, J. This is a workmen’s compensation case. B. T. Richardson, whose wage was $25 per week, sustained injury to a leg, and after he had been paid compensation for a certain period a controversy arose between him and his employer, Etowah Monument Company, as to further payments. Commissioner Land found a permanent partial loss of use of the leg, amounting to 10 per cent., and awarded compensation at the rate of $1.25 per week for 167 weeks. This award was affirmed by the full commission except that the weekly payments were raised to $4. On appeal by the employer and the insurance carrier, the superior court reversed the award of the full commission as to the amount of the payments and made a judgment in accordance with the award of the sole commissioner. The employee on the one side and the employer and the insurance carrier on the other brought respective bills of exceptions to this court. The questions for decision are as to the amount of the compensation to be awarded, and as to the manner of its payment. Section 32 of the compensation act as amended (Ga. L. 1920, pp. 167, 184; Ga. L. 1923, pp. 92, 95) provides as follows: “In the cases included by the following schedule the permanent par — 521 — tial industrial handicap, in each case, shall be compensated by payments for the period specified, and the compensation so paid for such handicap shall be. as specified therein, and shall be in lieu of all other compensation for the permanent partial handicap. . . For the loss of a leg, fifty per centum of the average weekly wages during one hundred and seventy five weeks. . . The compensation for partial loss of or for partial loss of use of a member or for partial loss oE vision of an eye shall be such proportion of the payments above provided for total loss as such partial loss bears to total loss. . . The weekly compensation payments referred to in this section shall be subject to the same limitations as to maximum and minimum as set out in section 30.” Eelying upon the latter clause as to maximum and minimum payments, the employee contends that, although the proportionate diminution in his earning capacity was less than $4 per week, yet, since he had received a weekly wage of a larger sum, he is entitled to compensation at the rate of $4 per week for the remaining period of 167 weeks, section 30 providing that compensation shall not be “less than $4 per week, except when the weekly wages is below $4.” The employer and the insurance carrier insist that, since the weekly wage here was more than $4, section 30 can not have application so as to increase the aggregate amount to which the employee would otherwise be entitled, notwithstanding under the particular facts the amount of the weekly payments, so long as they are to be made, should be determined thereunder, because of the provisions in the latter clause of section 33 with reference to “maximum and minimum” payments. We agree with the position taken by the employer and the insurance carrier on both propositions. The material portion of section 30 is as follows: “That when the incapacity from work resulting from an injury is total, the employer shall pay, or cause to be paid, as hereinafter provided for, the employee during such total incapacity, a weekly compensation equal to one half of his average wages, but not more than fifteen dollars per week nor less than four dollars per week, except when the weekly wage is below four dollars, then the regular wages on the date of the accident shall be the weekly amount paid.” It is clearly apparent that this section was intended to apply only to cases of total incapacity, and this was not such a case. The employee is therefore not entitled to claim the amount of $4 a week for the — 522 — full period of 167 weeks. As to the aggregate amount of compensation to be allowed, his casé is governed by the provisions of section 38 to the effect that the compensation for the loss of a leg shall be 50 per cent, of the average weekly wages during 175 weeks, and that the compensation for the partial loss of a member, or the partial loss of the use of a member, shall be such proportion of the payments prescribed for total loss as such partial loss bears to such' total loss. Hence, the employee in this case is entitled only to a proportionate compensation for his specific disability. The provision in section 38, that the payments therein referred to shall be subject to the same limitations as to maximum and minimum as set out in section 30, was not intended to increase the entire amount of the compensation to be paid for a partial handicap falling under the terms of section 38; that is to say, this clause was not intended to prescribe the minimum total amount of compensation to be paid, but had the purpose of providing the manner, and terms of payment, so as to prevent the spreading of the total amount over long periods by small installments, except when necessary to do so because the wage itself was small — below $4 per week. Any other interpretation would render sections 30 and 38 inconsistent, and would practically nullify the rule of proportion for partial incapacity as contained in section 38; whereas these sections and every part of each must be construed together and be given such a meaning that the language of both'will, if possible, be reconciled. Let us suppose that two men are each receiving-wages at the rate of eight dollars per week, one of whom loses a leg, while the other sustains a ten per cent, loss of use of a leg. Was it the intention of the law that each of these men should receive the same compensation, that is, $4 per week for 175 weeks, or was their compensation to be proportioned according to the comparative handicap of each? Common sense will suggest the proportional compensation. Again, if each of such employees was working for a wage of $4 per week, then each, according to the contention of the claimant in the instant case, would be entitled to the full equivalent of his wages for 175 weeks, which as to the one who had suffered the total loss of a leg would probably be entirely just, but which as to the other who had suffered only a ten per cent, loss of use of a leg, would contain a patent inequality as regards both the employer and other employees, since in the latter — 523 — case the employee would receive a sum equal to his entire wages, although he had sustained only a slight incapacity and could earn practically as much as he did before the accident.. The combined income of this employee, from wages and compensation, could easily be greater than before the accident,' thus making the injury profitable, and, at the same time, would likely exceed the total income of the employee who was the more seriously'disabled and who therefore had sustained a larger actual diminution in wages. An award of $4 per week in the instant case, as by an application of section 30, would amount to a proportional compensation for more than thirty per cent, impairment; whereas, under the facts as found by the commission, there exists only a ten per cent, impairment, and we can' not agree that the legislature intended the inequalities which would result from the construction contended for by the claimant. An examination of the compensation statutes of a number of other states will disclose provisions more or less similar to those here under consideration, and it seems to be the general scheme of the acts to reduce the number, and not the amount, of the payments for the partial loss, or loss of use, of a member. For instance, the Kentucky statute provides that for partial disability the compensation “shall be 65 per cent, of the average weekly earnings of the employee, but not less than $5 nor more than $12, multiplied by the percentage of disability caused by the injury, for such period as the board may determine, not exceeding 335 weeks nor a maximum sum of $4,000;” but that “whenever the weekly payments under this paragraph would be less than $3 per week, the period may be shortened and the payments correspondingly increased to that amount.” Kentucky Laws of 1916, chapter 33, p. 354. The various provisions of section 32 of our own statute clearly manifest a like intention. For each of the injuries referred to in paragraphs (a) to (q) respectively the employee is to be awarded 50 per cent, of his weekly wages, regardless of the comparative incapacity from the several injuries; but the period of the weekly payments is made to vary widely according to the extent oE the resulting handicap. We think the certain accomplishment of such a result in case of partial loss, or loss of use, of a member was the chief purpose of the provision of section 32 as to maximum and minimum payments, since it is only by this construction that the — 524 — clause as to proportioning the compensation for partial handicaps (paragraph r) can be given its proper significance as a co-ordinate provision of the statute. There is a dearth of authority upon the question here under consideration, and the few cases to be found are not persuasive. Some of them are based upon statutes differing in some degree from the language of the Georgia act, and several were decided by divided courts. Emry v. Cripes, 110 Kan. 693 (205 Pac. 598); Kupis v. Wilmington Provision Co. (Del.), 138 Atl. 358; Lewis v. Allied Contractors Inc. (Neb.), 225 N. W. 770. The case of James A. Banister Co. v. Kriger, 84 N. J. L. 30 (85 Atl. 1027), decided by the Supreme Court of New Jersey, is in direct accord with the contention of the employee in the present case; but in the later case of Barbour Flax Spinning Co. v. Hagerty, 85 N. J. L. 407 (89 Atl. 919), the same court, speaking of its decision in'the Kriger case, said: “It was only the amount that was subject to variation and variation was prevented by the clause fixing a- minimum of $5 per week. The legislature seems to have thought our construction too liberal to the employee, for it amended the act in 1913 immediately after our decision. Pamph. L. pp. 302, 304.” It is noted that the maximum and minimum clause provides only that the payments shall be subject to the limitations stated in section 30, not that the amount of the whole compensation shall be so determined. Furthermore, that clause was apparently not intended to qualify the prior language of subparagraph (r) as to proportions; because this paragraph prescribes no payments within, itself, but merely speaks of a proportion of the “payments above provided,” and the succeeding clause, as to maximum and minimum, would therefore be applicable only to the payments referred to in the several antecedent paragraphs as to specific injuries. This we think is the correct interpretation of section 32 as a whole. In view of what has been said, we hold that the employee was entitled to ten per cent, of the total amount of compensation which he would have received for a total loss of his leg or the use thereof, that is, ten per cent, of fifty per cent, of what his weekly wages would have amounted to for the remaining period of 167 weeks, and to this only; but that in order to avoid the small payment of $1.25 weekly, the industrial commission should have proportioned the period of the weekly payments rather than the amount of such — 525 — payments, and the superior court should have corrected this error in the award. The number and not- the amount of the weekly payments ivas held by this court to be the variable element, in the decision in American Mutual Liability Ins. Co. v. Brock, 35 Ga. App. 772 (2) (135 S. E. 103). See also Galloway Coal Co. v. Stanford, 215 Ala. 79 (109 So. 377); Lewis v. Allied Contractors Inc., supra; Phonville v. New York & Cuba S. Co., 226 N. Y. 622 (123 N. E. 258); Knoxville Power & Light Co. v. Barnes, 156 Tenn. 184 (299 S. W. 772); and compare section 45 of the Georgia compensation act. The Brock case was reviewed and reversed by the Supreme Court, but not on this point. 165 Ga. 771 (142 S. E. 101). Nothing contrary to this ruling was intended to be held in South v. Indemnity Insurance Co., 39 Ga. App. 47 (146 S. E. 45), notwithstanding certain language in the decision in that case. ■ The questions here raised were not involved in the South case. Even before we decided the Brock case the industrial commission had adopted the practice of reducing the number of the weekly payments rather than the amounts. The courts will take judicial cognizance of the practice of the departments of government, and may give weight thereto in the construction of statutes. Griner v. Baggs, 4 Ga. App. 232 (3), 234 (61 S. E. 147); Temple Baptist Church v. Georgia Terminal Co., 128 Ga. 669, 680 (58 S. E. 157); Carroll v. Wright, 131 Ga. 728 (4), 736 (63 S. E. 260). Judgment in No. 19988 affirmed; in No. 19981 reversed. Stephens, J., concurs. Jenkins, P. J., dissents.