Baxter v. W. H. Arthur Co.

Clarkson, J. Tbe opinion of the Full Commission, which the court below affirmed, is as follows: “This was an appeal by the defendants in apt time, to the Full Commission from an award of Commissioner Dorsett in which the Hearing Commissioner awarded the claimant 20 per cent partial permanent loss of use of the right arm, and also allowed him the sum of $1,000 for serious facial and bodily disfigurement. Tbe Full Commission viewed the scars on the body of the claimant, who was a young colored man, and finds that be was seriously burned while carrying a bucket of hot tar; the tar splashing over bis face, forehead, ears, bands, arms, left side of bis chest and abdomen, and as the result of the burn be has been seriously disfigured; the scarring being white in color in contrast to bis black skin, and the Commission feels that the findings of fact, conclusions of law of the Hearing Commissioner was amply justified by the facts in the case. Therefore, the Full Commission finds no reason to disturb the findings of fact, conclusions of law and award of the Hearing Commissioner, but ratifies and affirms the same. With respect to the award of disfigurement to the right arm in which a 20 percent partial permanent functional loss of use of the right arm was awarded, the Full Commission and the Hearing Commissioner took into consideration the fact that the scarring of this arm was very extensive and entirely out of proportion to the 20 per cent functional loss, and for this reason the Commission considered the scarring of the right arm in addition to the functional loss of use along with the scarring on the rest of the body as heretofore indicated in arriving at the sum of $1,000 for disfigurement.” N. O. Code, 1935 (Micbie), see. 8081 (mm), in part is as follows: “(t) Total loss of use of a member or loss of vision of an eye shall be considered as equivalent to tbe loss of such member or eye. Tbe compensation for partial loss of or for partial loss of use of a member or for partial loss of vision of an eye shall be such proportion of tbe payments above provided for total loss as such partial loss bears to total loss. Loss of both arms, bands, legs, or vision in both eyes shall be deemed permanent total disability, and shall be compensated under sec. 8081 (k)„ [279] In case of serious facial or bead disfigurement, tbe Industrial Commission shall award proper and equitable compensation not to exceed $2,500. The weekly compensation payments referred to in this section shall all be subject to the same limitations as to maximum and minimum as set out in see. 8081 (kk) ; provided, however, that the foregoing schedule of compensation shall not be deemed to apply and compensate for serious disfigurement resulting from any injury to any employee received while in and about the duties of his employment. And provided, further,- that the Industrial Commission created by this article shall have power and authority to make and award a reasonable compensation for any serious bodily disfigurement received by any employee within the meaning of this article, not to exceed twenty-five hundred ($2,500) dollars. And provided, further, that disfigurement shall also include the loss or serious or permanent injury of any member or organ of the body for which no compensation is payable under the schedule of specific injuries set forth in this section.” Dr. George A. Mears testified, in part: “I examined Eugene Baxter immediately after this accident on June 1, 1938. The plaintiff is going to have some permanent disfigurement in both upper extremities, I believe it is the left. He has no permanent disability in his right arm at all and in his left arm he is going to have some permanent disability. . . . I would say to sum the thing up, he has approximately 20% permanent partial disability of the arm at this time.” Dr. Mears was corroborated by Dr. A. T. Hipps, who testified: “On the left arm as the result he has got scar tissue in and around these tendons here which constricts the muscle power. There is no nerve injury but he has got scar tissue there which prevents those fingers from closing. He has got scar tissue, prevents that. Scar tissue in a burn gets worse as time goes on. This man has not reached his maximum disability yet and he may not reach it for a year yet.” It will be noted that the Commission awarded compensation “20% loss of use of right arm.” From all the evidence it should have been left arm. The learned attorney for defendant frankly and rightly admitted this error of the Commission and agreed it should be corrected to be the left arm, but contended there was no sufficient evidence to support this finding of fact by the Commission. From the testimony of the physicians, the defendants’ contention cannot be sustained. It was held in the case of Arp v. Wood & Co., 207 N. C., 41, that in the case of facial head disfigurement, award could be made in the amount of $2,500 for such disfigurement and, at the same time, additional awards could be made for temporary total disability, 40% loss of visibility in right eye, and total loss of left eye. In the instant case the [280] Commission included “serious facial and bodily disfigurement.” Tbe statute provides tbat in tbe case of serious facial or bead disfigurement tbat tbe Commission “shall award proper and adequate compensation not to exceed $2,500”; and tbe statute further provides tbat in tbe case of “serious bodily disfigurement” tbe Commission “shall have power and authority to make and award a reasonable compensation . . . not to exceed $2,500.” It seems, therefore, tbat tbe Commission has full power and authority, based on any competent evidence, to grant an award for facial, bead or bodily disfigurement in tbe amount not to exceed $2,500, provided tbe aggregate of all awards shall not exceed $6,000. In tbe instant case there was found to be “bodily disfigurement.” Tbe defendants further contend tbat there is no sufficient evidence and findings of. fact in tbe case to sustain an award for disfigurement, and tbat tbe provision under which an award for bodily disfigurement is made is unconstitutional, as no rule of action is prescribed in tbe statute. Neither one of these contentions can be sustained. In Lassiter v. Telephone Co., 215 N. C., 227 (230), we find: “It is established in this jurisdiction tbat the findings of fact made by the Industrial Commission, if supported by competent evidence, are conclusive on appeal and not subject to review by the Superior Court or this Court, although this Court may have reached a different conclusion if it bad been the fact finding body.” We think tbe evidence ample to support tbe findings of fact by tbe Commission. In tbe opinion is tbe following: “Tbe Full Commission viewed tbe scars on tbe body of tbe claimant, who was a young colored man, and finds tbat be was seriously burned while carrying a bucket of hot tar, tbe tar splashing over bis face, forehead, ears, bands, arms, left side and bis chest and abdomen, and as tbe result of tbe burn be has been seriously disfigured; tbe scarring being white in color in contrast to bis black skin.” Tbe evidence was tbe best to be bad — a view of the body of plaintiff by tbe Full Commission. Doubting Thomas would not believe until be saw for himself. “Then said He to Thomas, Reach hither thy finger, and behold my bands; and reach hither thy band, and thrust it into my side; and be not faithless, but believing. And Thomas answered and said unto him, My Lord and my God.” — (St. John 20:27, 28.) In Heavner v. Lincolnton, 202 N. C., 400 (402), it is said: “This Court, in many decisions, has recognized the applicability of the act, and the power of the Commission to administer it, within the boundaries of the act. While it is technically true tbat this Court has not heretofore considered the constitutional questions involved in this appeal, it [281] bas approved expressly and unequivocally the liberal and beneficent provisions thereof. Indeed, all the major objections to the constitutionality of compensation acts bave been considered by the Supreme Court of the United States and many other courts throughout the country (citing a wealth of authorities). . . . Tbe courts and text writers bave declared that compensation legislation falls within the exercise of the police power of sovereignty, and for this reason constitutional objections bave not ordinarily prevailed. This Court bas never held that the Industrial Commission is a court in the strict sense of that term. Indeed, it bas been expressly declared that the Industrial Commission is primarily an administrative agency of the State, charged with the duty of administering the Compensation Act, and, as an incident to such administration, it performs duties which are judicial in their nature.’ In re Hayes, 200 N. C., 133, 156 S. E., 791. In disposing of the questions presented, it is deemed unnecessary to pyramid quotations from the authorities. All legitimate arguments, together with the authorities supporting the various aspects of constitutional inhibition, are contained and set forth at length in the cases determined by the Supreme Court of the United States, supra.” 1 Schneider, Workmen’s Compensation Law, 2nd Ed., pp. 11, 13, is as follows: “Tbe Supreme Court of the United States bas declared constitutional both the compulsory and elective form of act. There are only three states in which the first law enacted was held unconstitutional. Since these decisions both state and federal courts bave uniformly sustained the general constitutional questions involved in the Workmen’s Compensation Acts, though in some states minor provisions of the ácts bave been held unconstitutional.” We cannot bold, as contended by defendants, that tbe “Compensation for bodily disfigurement is void for being unconstitutional as it is a void delegation of legislative power and in controvention further of N. C. Constitution, Art. I, sec. 8, and is incomplete legislation. Connally v. General Construction Co., 269 U. S., 385, 70 L. Ed., 322; Vallat v. Radium Dial Co., 196 N. E., 485 (Illinois Supreme Court, 1935); 99 A. L. R., 607.” Tbe above eases cited we think inapplicable to tbe facts in this cause. We think tbe statute is not so vague, or sets up an unintelligible standard of conduct, as to render it void. For tbe reasons given, tbe judgment of tbe court below is Affirmed.