Spitzer v. Wolff Bros.

BIEGELMEIER, J. This is a proceeding to recover under the Workmen's Compensation Law for an injury of claimant on October 10, 1958. At the first hearing the Industrial Commissioner found claimant was totally and permanently disabled and made an award on that basis, which was appealed by the insurer to the circuit court. Because "the Commissioner further found that only twenty per cent of such total disability may be attributed to the accidental injury," that court set aside the award and remanded the proceeding back to the Commissioner for further hearing to determine to what extent, if any, the injury aggravated other preexisting physical condition of claimant and upon what factors an award would be based. Further evidence was then taken. The Commissioner entered findings of fact, conclusions of law and an award, in addition to the compensation benefits therstofore paid, of 20% of total disability and directing the sum of $2,000 to be paid claimant in a lump sum. Claimant appealed to the circuit court which affirmed and has now appealed to this court. There is no dispute claimant was 62 years of age at the time of the accident and his back was injured in the course of his employment; this resulted in surgery to remove a disc. At the time of his injury and subsequent thereto the Commissioner found claimant was suffering from gall stones, calcified aorta and pelvic vessels, osteoarthritis and arrythmia; that neither the injury of October 18, 1958, nor the subsequent back operation aggravated or accelerated the named afflictions and claimant was not totally or permanently disabled as a result of the injury or subsequent operation, that they did cause a permanent and partial disability because of pain and limitation of motion in an amount not to exceed 20% of total disability. Claimant challenges the findings and argues the evidence is insufficient to support them. Findings of fact of the Commissioner supported by substantial, creditable and reasonable evidence must be sustained. Edge v. City of Pierre, 59 S.D. 193, 239 N.W. 191. The evidence is examined in that light. An orthopedic specialist examined claimant in 1960; he testified at both hearings that in his opinion claimant was not totally disabled, that he had partial permanent disability of twenty per cent of his whole body on the [189] basis of the disc injury and this was due to the pain and limitation •of motion in that area; that he could do some kind of work and indicated those fields; that the injury did not in any way cause or aggravate his physical condition and other ailments existing at that time. Another doctor testified similarly. There was other evidence from which the Commissioner could have made different findings, which under the Edge and similar decisions a court •on review would leave undisturbed. The circuit court reviewed •and declined to set aside the Commissioner's findings as to disability and we are unable to do so under this record. Cf. Wieber v. England, 52 S.D. 72, 216 N.W. 850; Id., 59 S.D. 1, 238 N.W. 25. Claimant asserts the Commissioner was in error when he entered the award for 20% of total disability in a lump sum of $2,000. He evidently did this pursuant to SDC 1952 Supp. 64.0403(5) ■as amended by Ch. 494, Laws of 1957, which read as follows: "In case of complete disability which renders the employee wholly and permanently incapable of work, compensation shall be paid equal to fifty-five per cent of his earnings but not less than fifteen dollars nor more than thirty dollars per week, commencing on the day after the injury and continuing for three hundred weeks and thereafter compensation shall be paid equal to twenty per cent of his earning, but not less than twelve dollars nor more than fifteen dollars per week for life; provided, that the maximum amount of compensation to be paid under this section shall not in any case exceed the sum of ten thousand dollars ($10,000.00)." In our opinion SDC 64.0403(3) applies to this claim which then read: "If, after the injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in the cases covered by the specific schedule set forth in subdivision (4) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in subdivisions (1) and (7) of this section, equal to one-half of the difference between [190] the average amount which he earned before the accident, and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. * * *" An award of a lump sum cannot be made except upon petition of an "employer, employee or beneficiary" upon proper notice and showing as therein set out. SDC 1960 Supp. 64.0510; see also Wulff v. Swanson, 69 S.D. 539, 12 N.W.2d 553. No such petition was made and the Commissioner had no authority to order a commutation of the compensation to a lump sum. It is unfortunate that after two hearings and appeals, the judgment appealed from must be reversed and the cause remanded to the circuit court with directions to remand the cause to the Industrial Commissioner for further proceedings consistent with the conclusions herein expressed. Salmon v. Denhart Elevators, 72 S.D. 110, 30 N.W.2d 644. In these proceedings before the Commissioner, he should be directed to allow the introduction of additional evidence as to present earnings or ability to earn in some suitable employment' so as to determine the amount of compensation payable under SDC 64.0403(3). It is so ordered. ROBERTS and RENTTO, JJ., and SMITH, Commissioner, concur. HANSON, P. J., concurs specially. SMITH, Commissioner, sitting for HOMEYER, J., disqualified.