City of Milwaukee v. Ritzow

Pep, CuRiam. What is the scope of the term “permanent injury” in sub. 5 of sec. 2394 — 9, Stats., providing for a reduction on account of' the age of the deceased, of the compensation for loss to his surviving dependents ? — 377 — Tbe section, omitting a minor schedule, where indicated, ' is as follows: “Scale of compensation. Section 2394 — 9. Where liability for compensation under sections 2394 — 3 to 2394 — 31, inclusive, exists, the same shall be as provided in the following schedule: “(1) Such medical, surgical and hospital treatment, medicines, medical and surgical supplies, crutches, and apparatus, as may be reasonably required at the time of the injury and thereafter during the disability, but not exceeding ninety days, to cure and relieve from the effects of the injury, the same to be provided by the employer; and in case of his neglect or refusal seasonably to do so, the employer to be liable for the reasonable expense incurred by or on behalf of the employee in providing the same. “(2) If the accident .causes disability, an indemnity which shall be payable as wages on the eighth day after the injured employee leaves work as a result of the injury, and weekly thereafter, which weekly indemnity shall be as follows: “(a) If the accident causes total disability, sixty-five per cent, of the average weekly earnings during the period of such total disability; provided that, if the disability is such as not only to render the injured employee entirely incapable of work, but also so helpless as to require the assistance of a nurse, the weekly indemnity during the period of such assistance after the first ninety days shall be increased to one hundred per cent, of the average weekly earnings. “(b) If the accident causes partial disability, sixty-five per cent, of the weekly loss in wages during the period of such partial disability. “(c) If the. disability caused by the accident is at times total and at times partial, the weekly indemnity during the periods of each such total or partial disability shall be in accordance with said subdivisions (a) and (b), respectively. ’ “(d) Said subdivisions (a), (b) apd (c) shall be subject to the following limitations: “In case of temporary or partial disability aggregate indemnity for injury to a single employee caused by a single accident shall not exceed four times the average annual earn — 378 — .ings of such employee, and in case of permanent total disability aggregate indemnity for injury to a single employee-•cansed by a single accident shall not exceed six times the average earnings of such employee. “Total blindness of both eyes, or the loss of both arms at •or near the shoulder, or of both legs at or near the hip, or of one arm at the shoulder and one leg at the hip, shall constitute permanent total disability. This enumeration shall not be exclusive but in other cases the commission shall find the facts. “The aggregate disability period shall not, in any event, ■extend beyond fifteen years from the date of the accident. “The weekly indemnity due on the eighth day after the •employee leaves work as the result of the injury may be withheld until the twenty-ninth day after he so leaves work; if recovery from the disability shall then have occurred, such first weekly indemnity shall not be recoverable; if the disability still continues, it shall be added to the weekly indemnity due ■on said twenty-ninth day and be paid therewith. “If the period of disability does not last more than one week from the day the employee leaves work as the result of ■the injury, no indemnity whatever shall be recoverable. “(3) Where death proximately results from the injury and the deceased leaves a person or persons wholly dependent upon him for support, the death benefit shall be as follows: “(a) In case the injured employee was permanently totally .disabled, a sum equal to four times his average annual earnings, but which, when added to the disability indemnity paid and due at the time of death, shall not exceed six times his average annual earnings. “(b) In case the injured employee was not permanently totally disabled, such sum which, when added to the disability indemnity paid and due at the time of his death, shall equal four times his average annual earnings. “(4) If death occurs to an injured employee other than as ■a proximate result of the accident, before disability indemnity ceases, death benefit shall he as follows: “(a) Where the accident proximately causes permanent total disability, it shall be the same as if the accident had ■caused death. “(b) Where the accident proximately causes permanent — 379 — partial disability, liability shall exist for such benefit as shall, fairly represent the proportionate extent of the impairment of earning capacity in the employment in which the deceased was working at the time of the accident or other suitable employment, caused by such disability. “(c) In case the deceased employee leaves no one wholly dependent upon him for support, but one or -more persons partially dependent therefor, the death benefit shall not exceed four times the amount devoted by deceased, during the year immediately preceding his death, to the support of such dependents and shall be apportioned according to the percentage that the amount devoted by the deceased to the support of such person or persons, for the year immediately prior to the accident, bears to the average annual earnings of the deceased. “(d) If the deceased employee leave no person dependent upon him for support, and the accident proximately causes death, the death benefit shall consist of the reasonable expense of his burial, not exceeding one hundred dollars. “(e) Death benefit shall be paid in weekly instalments corresponding in amount to sixty-five per cent, of the weekly earnings of the employee, until otherwise ordered by the commission. “(5) In cases included by the following schedule, the compensation to be paid, subject to the provisions of this act for maximum and minimum payments, shall be sixty-five per cent, of the average weekly earnings of the employee for the periods named in the schedule, to wit: (Schedule omitted.) “When by reason of infection or other cause not due to the neglect or misconduct of the injured employee, he is actually disabled longer than the time specified in the foregoing schedule from earning a wage, compensation shall be paid such employee for such loss of wage within the limits otherwise provided. , “For the purposes of this schedule permanent and complete paralysis of any member shall be deemed equivalent to the loss thereof. “Whenever an amputation is made between any two joints mentioned in this schedule (except amputation between the knee and hip joint) the resultant loss shall be estimated as if the amputation had been made at the joint nearest thereto. “In all other cases in this class the compensation shall — 380 — bear such relation to the amount stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule. “If an employee is seriously permanently disfigured about the face or head, the commission may allow such sum for compensation on account thereof, as it may deem just, not exceeding seven hundred fifty dollars. “In case of ■permanent injury to an employee who is over fifty-five years of age, the compensation herein shall be reduced by five per cent.; in case he is over sixty years of age, by ten per cent.; in case he is over sixty-five years of age, by ]fifteen per cent. “(a) Where injury is caused by the failure of the employer to comply with any statute of the state or any lawful order of the industrial commission, compensation as provided in sections 2394 — 3 to 2394 — 31, inclusive, shall be increased fifteen per cent. “(b) Where injury is caused by the wilful failure of the employee to use safety devices where provided by the employer, or “(c) Where injury results from the employee’s wilful failure to obey any reasonable rule adopted by the employer for the safety of the employee, or “(d) Where injury results from the intoxication of the employee, the compensation provided herein shall be reduced fifteen per cent. •*» “(e) Any time after six months have elapsed from the date of the injury, the commission may order payment in gross or in such manner as it may determine to the best interest of the parties. When payment in gross is ordered, the commission shall fix the gross amount to be paid based on the present worth of partial payments, considering interest at three per cent, per annum.” Respondents contended, and still insist, that the words “permanent injury” do not refer to cases of resulting death and that death benefits are not within the reduction feature; while appellant contended, and still insists, that the scope of such words includes permanent injuries regardless of whether the resulting loss to be repaired is that of surviving relatives, or that of the injured person. The former prevailed ' and judgment was rendered accordingly. — 381 — While the point raised is not .entirely free from difficulty, it is considered that the terms “injury,” “permanent injury,” “disability,” “permanent disability,” and “permanently totally disabled” are descriptive of -a class of events creating a right to compensation to the injured one; and that injury resulting proximately or otherwise, or followed by, death, covered by sub. 3 and 4, constitute a separate and distinct claiss of events where the compensation goes to dependents, and that it is to the former only that the words “the compensation herein” “shall be reduced,” etc., apply. While it may be there is greater reason for reducing compensation to dependents in the circumstances under consideration than for reducing that of a surviving injured person, yet it was so easy for the legislature to have said “in case of a permanent injury to an employee who is oyer fifty-five years of age the compensation herein,” . . . whether to him or his dependents in case of his death in the circumstances mentioned in sub. 3 and 4, “shall be reduced,” etc., the failure to do so or to otherwise make unmistakable that which must have' been appreciated to be a serious matter in case of' being involved in doubt, the court is inclined to the view that the term “permanent injury” was used in the sense ordinarily accorded thereto in circumstances giving rise to a 'claim of the injured person to have his loss compensated, and ¡should not be expanded by construction, merely because, •’where death results, the injury is necessarily permanent and 4he reason of the statute as to reduction of compensation applies stronger to the condition not included in its strict letter than to that which is. The judgment is affirmed.