Smith v. Daniel Construction Co. , 253 S.C. 248 ( 1969 )

Lewis, Justice.

The appellant, an employee of the respondent Daniel Construction Company, fell from a scaffold while about his employment on November 18, 1966. He fractured several ribs in the fall and damaged his spleen. The injury necessitated the surgical removal of the spleen, which left an abdominal scar about nine to ten inches in length. Thereafter, the South Carolina Industrial Commission made an award for Workmen’s Compensation benefits to appellant for serious bodily disfigurement, under Section 72-153 of the 1962 Code of Laws, in the amount of $300.00 for the abdominal scar, and an additional disfigurement award of $2,000.00 for the loss of the spleen as an organ of the body. The lower court reversed the additional award for the loss of the spleen, relying upon the decision in Bowen v. Chiquola Manufacturing Co., 238 S. C. 322, 120 S. E. (2d) 99. The employee has appealed from such ruling and was granted permission to attack the decision in the Bowen case, upon which the judgment below was based. No issue is involved as to the disfigurement award for the abdominal scar.

The question to be decided is whether the Industrial Commission can, under Section 72-153, supra, in addition to the disfigurement award for the abdominal scar, make a separate disfigurement award based solely on the loss of the spleen as an organ of the body.

The lower court correctly held that the Commission was without authority, under Bowen v. Chiquola Manufacturing Company, supra, to make the additional disfigurement award in this case.

It is conceded that the authority to make the award in question must exist, if at all, under the provisions of Section 72-153. This section contains a list of eighteen specific losses for which disability shall be deemed to continue for the periods stated and a statement of the amount of compensation to be paid in each instance. After the listed specific losses, the section contains the provisions relative to disfigurement. As originally adopted, the disfigurement provisions stated that “in case of serious facial or head disfigurement, the Industrial Commission shall award proper and equitable compensation not to exceed $2,500.00.” The Commission was further given the “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 ($2,500.00) dollars.”

The foregoing provisions were construed by this court as not entitling a claimant to a disfigurement award for loss of a testicle. Manning v. Gossett Mills, 192 S. C. 262, 6 S. E. (2d) 256. We also held, in our early cases, “that in order to be entitled to a disfigurement award the claimant must prove that the disfigurement reduced his earning capacity or handicapped him in obtaining employment, such proof not being required, however, where the disfigurement was to face or head, since in such cases reduction in earning capacity was presumed to have resulted.” Bowen v. Chiquola Mfg. Co., supra, 238 S. C. 322, 120 S. E. (2d) 99.

In 1941, prompted largely by the foregoing interpretations, Section 72-153 was amended by adding the provisos that (1) “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 out in this section,” and (2) “in cases of bodily disfigurement it shall not be necessary for the employee to prove that disfigurement handicaps him in retaining or procuring employment, or that it interferes with his earning capacity.”

Appellant contends that when the Legislature added the first proviso, it intended to add an additional category of specific losses to those previously listed in Section 72-153. He states in his brief that “the Legislature intended the amendment as a ‘catch-all provision’ for injuries not listed in the schedule of specific loss, but permanent in character, for which no other provision is made.” In other words, it is argued that the effect of the 1941 amendment was to entitle an employee to two awards for disfigurement where there is a loss or serious or permanent injury to a nonscheduled member or organ of the body, one for the impairment of the appearance and the other solely for the loss or injury to the member or organ.

The same contention was made and rejected in Bowen v. Chiquola Mfg. Co., supra. We adhere to the construction of Section 72-153 as adopted in that case.

The purpose and effect of the 1941 amendments to Section 72-153 was stated in Bowen as follows: “The first proviso of the amendment enlarged the scope of ‘serious bodily disfigurement’ to include loss or serious or permanent injury of non-scheduled members of the body; it did not, either expressly or by reasonable inference, extend the scope of ‘serious bodily disfigurement’ to nondisfiguring loss or injury of such members. * * * The second (proviso) was not included to, and did not, divorce the idea of disfigurement from that of earning capacity; its intent and effect were simply to relieve the claimant of the necessity of proving reduction of earning capacity resulting from the disfigurement, and to substitute for such proof a conclusive presumption that serious bodily disfigurement, as well as that of face or head, will result in reduction of earning capacity.”

The contention of appellant that an award for disfigurement may be properly made solely for the loss or injury of a non-scheduled member or organ of the body is in effect based upon the view that the 1941 amendment eliminated the necessity that such loss or injury be disfiguring. The invitation in Bowen to adopt such construction, which arguably was done in Cagle v. Clinton Cotton Mills, 216 S. C. 93, 56 S. E. (2d) 747, was rejected and any holding in Cagle to the contrary was overruled. In doing so, we stated: “To the extent that it (Cagle) suggests that as section 72-153 now stands disfigurement does not connote appearance, that statement is misleading and incorrect. To presume that disfigurement will impair earning capacity is one thing; to say that disfigurement need not disfigure is another.” The Cagle and Bowen cases are discussed in 2 Larson’s Workmen’s Compensation Law, Section 58.32.

In Bowen, the Commission made, as it did in this case, two awards for disfigurement, one for serious bodily disfigurement and an additional award solely for the loss of two intervertebral discs as organs of the body. In reversing the additional award for loss of the discs, we held that the award for disfigurement for impairment of appearance “of necessity included all disfigurement resulting from the injury.”

The judgment of the lower court is accordingly affirmed.

Moss, C. J., and Brailsford and Littlejohn, JJ., concur. Bussey, J., dissents.