J. E. Trigg Drilling Co. v. Daniels , 193 Okla. 644 ( 1943 )

I agree with the conclusion of the majority, that is, that the claimant is entitled to 400 weeks' compensation in this case. This conclusion is correct for the reason that the claimant makes no objection to the amount of compensation awarded him or the method by which it was computed, and the two methods of computation suggested by petitioners are incorrect and inapplicable under the facts of the case before us. I cannot agree, however, that the majority opinion is correct in holding that in the case of multiple injuries, resulting in the loss of an arm and a serious injury to the back affecting a 30 per cent loss to the whole body, the Workmen's Compensation Act arbitrarily requires an award for 250 weeks for the loss of the arm and an additional, separate award for the disability resulting from the back injury. I think the award for compensation for an injury to the back and total loss of an arm sustained by reason of a compensable accident under the Workmen's Compenstion Act, as amended, should be for the percentage of total permanent disability resulting from the combined effects of such injuries and should be computed on the basis of 500 weeks.

The vice of the majority opinion lies in the fact that it establishes a rule in such cases as the one at bar which was not contemplated by the Legislature, is impractical, and is not supported, in my judgment, by logic, reason, or authority, and will work an injustice to those entitled to the benefits of the Workmen's Compensation Act. If it be true that the claimant in this case has a 30 per cent permanent total disability by reason of the injury to his back in addition to andexclusive of the loss of the arm, then we cannot say he received an award commensurate with the combined effects of the injuries sustained. Common knowledge teaches us this and this conclusion is inescapable. Then, too, the provisions of the act demonstrate that the Legislature realized and recognized this fact and undertook to guard against the unjust results of any other theory. Our act provides (85 O. S. 1941 § 22, subd. 1):

"Permanent Total Disability: In case of total disability adjudged to be permanent, sixty-six and two-thirds per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability not exceeding five hundred weeks; loss of both hands, or both feet, or bothlegs, or both eyes, or any two thereof, shall, in the absenceof conclusive proof to the contrary, constitute permanent totaldisability. In all other cases permanent total disability shallbe determined in accordance with the facts."

Subdivision 2 of this section deals with temporary total disability. Subdivision 3 deals with the general subject of permanent partial disability and therein is set forth a schedule of compensation for various specific losses such as fingers, toes, hands, arms, feet, legs, and eyes. It will be noted from this schedule of injuries to the specified members that compensation for the loss of an eye is 100 weeks, the loss of a hand 200 weeks, the loss of one leg 175 weeks, the loss of one foot 150 weeks, and it will also be noted that the Legislature provided in subdivision 1 of said section, supra, that:

"Loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall . . . constitute permanenttotal disability."

Under these subdivisions of section 22, we have consistently held that where there exists a permanent partial injury to any two of the members named in the foregoing subdivision 1 compensation should be computed on the basis of percentage of total permanent disability by multiplying 500 (the maximum number of weeks allowable for total permanent disability) by the average existing disability to the members involved. Olsen Drilling Co. v. Williams, 181 Okla. 81, 72 P.2d 487; Elk City Cotton Oil Co. v. State Industrial Commission et al.,184 Okla. 503, 88 P.2d 615.

We have also consistently adhered to the rule that where two fingers, for instance, are injured on the same hand the schedule therefor is disregarded and compensation awarded on the basis of the percentage loss to the hand.

Since the amendment of the "other cases" provision of the act all injuries to the body which fall within this provision are compensated on a basis of 500 weeks, the maximum for permanent total disability, without regard to lessened earning capacity. Disabilities falling within this provision now are specific in the same sense that arms, feet, hands, and eyes are. The amendment had for its purpose the establishment of a uniform basis and rate of compensation. This being true, it is not necessary to arbitrarily apply the schedule for an arm when there also exists another injury to a portion of the body that affects the whole body and necessarily affects indirectly the ability of all the members of the body to perform manual labor. In determining the percentage of disability occasioned by a back injury, the effect thereof on the arms, legs, and in fact all the members of the body must of necessity be considered. It is practically impossible to determine the percentage oftotal disability existent by reason of a back injury and at the same time wholly disregard an actual loss of an arm by reason of the same accident. Such an impractical and unreasonable construction will inescapably lead to prejudice of one of the parties to the controversy. To apply the rule of construction suggested herein you would arrive at a determination of the injured person's disability without indulging in any impractical assumptions or being obliged to attempt to disregard any actual physical condition that affects the ability of the injured individual to perform ordinary manual labor. I cannot ascribe to the Legislature any intention other than to prescribe a practical and direct method of determination of existing disability, and therefore think its intention, by the amendment of the "other cases" provision, was to obviate the difficulties of computing compensation which existed under the old provision when other members of the body were involved which are covered by the schedule for so-called "specific" members. The rule established by the majority will further complicate the determination of the compensation to be awarded in cases involving injuries falling within the "other cases" provision of the act.

The conclusion is inescapable that where the nature and location of an injury is such as to require its determination, under the statutory schedule, on a basis of permanent total disability or percentage thereof, and there exists another injury to a different portion of the body, otherwise scheduled, the schedule ordinarily applicable to the so-called specific member must necessarily be disregarded and the combined effects of all injuries determined according to the schedule relating to the injury which under the statute may alone be permanent total.