Bowen v. Chiquola Mfg. Co.

• Decision Date: 16 May 1961
• Docket Number: No. 17785,17785
• Parties: Edgar A. BOWEN, Appellant, v. CHIQUOLA MANUFACTURING COMPANY, Respondent.
• Court: South Carolina Supreme Court

Page 99

120 S.E.2d 99

238 S.C. 322

Edgar A. BOWEN, Appellant, v. CHIQUOLA MANUFACTURING COMPANY, Respondent.

No. 17785.

Supreme Court of South Carolina.

May 16, 1961.

Ashmore & Bowen, Greenville, for appellant.

Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for respondent.

LEGGE, Justice.

On May 26, 1958, appellant, an employee of Chiquola Manufacturing Co., sustained a compensable low back injury as the result of which he was operated on and the fourth and fifth lumbar intervertebral discs were removed. He appeals from a circuit court order reversing the Industrial Commission's award in his favor, and charges that the court erred:

1. In holding that the date of maximum improvement was September 2, 1959, and not December 1, 1958, as found by the Commission;

2. In ordering payment of compensation from September 2, 1959, on the basis of twenty-five per cent partial disability, for two hundred thirty-four weeks;

3. In holding that loss of an intervertebral disc is not loss of a member or organ of the body within the meaning of the provisions of Section 72-153 of the 1952 Code relating to disfigurement; and

4. In holding that appellant, who had received an award of compensation for bodily disfigurement, was not entitled to a separate award for disfigurement based upon the loss of two intervertebral discs.

We agree with the trial judge that there was no competent evidentiary support for the Commission's finding that maximum recovery had been reached on December 1, 1958. Dr. Brady, the only medical witness, testified that he first saw appellant on June 27, 1958, and that he examined and treated him thereafter until September 2, 1959, at which time in his opinion maximum recovery had been reached and there was a permanent general bodily disability of from twenty to twenty-five per cent. In the course of his cross-examination he stated that in September, 1958, he tried to discharge him and get him back to work, rating his disability at that time as ten per cent permanent partial, and that he did return to work on December 1, 1958, and worked, with increasing difficulty, until May, 1959; but that statement, taken in context with his positive testimony that he continued to attend appellant thereafter until September 2, 1959, and that in his opinion maximum recovery was reached on the date last mentioned, furnishes no reasonable basis for the conclusion that maximum recovery had been reached on December 1, 1958. Further and rather conclusively, supporting the trial judge's ruling on this point, is the Commission's finding that the medical treatment required to lessen appellant's disability, and for the payment of which respondent was held liable, Code 1952, Section 72-305, extended 'from the date of the injury, May 26, 1958, to September 17, 1959.'

The Commission, having fixed December 1, 1958, as the date of maximum recovery, and having found that the appellant's average weekly wage prior to his injury had been $65.36 and that the average weekly wage received by him during the period December 1, 1958--August 15, 1959, was $47.14, concluded that his permanent loss of wageearning capacity was $18.22 per week; and it accordingly awarded compensation from December 1, 1958, in the amount of 60% of $18.22, or $10.93, for 'three hundred (300) weeks less twenty-three and five-sevenths (23 5/7) weeks for which total disability compensation was paid up to December 1, 1958; and the defendants are to take credit for any compensation paid the employee for the periods of May 4, 1959 to June 5, 1959, and June 5, 1959 to June 26, 1959, and June 26, 1959 to July 27, 1959.' The circuit judge, reversing, held that under Utica-Mohawk Mills v. Orr, 227 S.C. 226, 87 S.E.2d 589, the Commission was required to base its award on the percentage of disability (i. e. 25%) as disclosed by the uncontradicted medical testimony, and not on the actual difference between pre-injury and post-recovery wages earned.

We have already announced our agreement with the circuit judge's holding that appellant's compensation should commence as of September 2, 1959, and not December 1, 1958. In our consideration of the second assignment of error before mentioned we are concerned not with the date of maximum recovery, not with credits to which the respondent may be entitled, but solely with the divergent views of the Commission and the circuit court as to the formula to be applied in determining the amount of compensation to which, under the evidence, the appellant is entitled.

Section 72-152 of the 1952 Code, as amended by the Act of March 27, 1953, (48 Stat. at Large, p. 103), provides that for non-schedule partial disability the employee shall be paid 'during such disability a weekly compensation equal to sixty per cent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter', such compensation not to exceed thirty-five dollars a week and to be paid over a period not exceeding three hundred weeks from the date of injury.

The average pre-injury wage is generally susceptible of accurate calculation. Post-injury earning capacity is something far less tangible. It is thus obvious that proper compensation of non-schedule partial disability can perhaps never be determined with mathematical precision in any case. Some of the problems that have confronted the courts because of the variable and rather intangible factor of post-injury earning capacity are discussed in Larson's Workmen's Compensation Laws, Sections 57:00 through 57:66. We need not explore them here.

Since disability is to be measured by the employee's capacity or incapacity to earn the wages which he was receiving at the time of his injury, Keeter v. Clifton Mfg. Co., 225 S.C. 389, 82 S.E.2d 520, the fact that after the injury the employee has not worked and has therefore earned no wages is not in itself determinative of the extent of loss of his earning capacity. So, in Utica-Mohawk Mills v. Orr, supra, where the Commission, having found that the injured employee, who was not working, had sustained a thirty per cent disability, awarded compensation on that basis, we declared that an award on a percentage basis complied with the terms of the statute. Actually, the issue in that case involved not the basis of the award, but the calculation of the amount of the weekly payments under it. We rejected the contention that the percentage of partial disability should be applied to the number of weeks, and affirmed the holding of the circuit court that the weekly compensation should be computed by taking thirty per cent of the pre-injury wage and allowing recovery of sixty per cent of that figure for three hundred weeks.

As indicated in Keeter v. Clifton Mfg. Co., supra, the amount of the post-injury wage, averaged over a reasonable period of time, is not necessarily conclusive of the diminution of earning capacity. It does, however, furnish a reasonable basis for comparison with the average pre-injury wage in determining whether and to what extent there has been such diminution, assuming a fair appraisal of such variable factors as the employee's willingness to work and the availability to him of employment, within his capabilities, sufficiently regular and continuous to establish his true earning capacity. Cf. Larson's Workmen's Compensation Law, Section 57:35. So also, as indicated in Utica-Mohawk Mills v. Orr, supra, may a medical estimate of the percentage of disability furnish reasonable basis for calculation of compensation for partial disability under Section 72-152. The percentage method, as well as the dollars-and-cents method, affords, when fairly applied, a practical basis for approximating the compensation to which the partially disabled employee should be entitled. Neither method is perfect, and neither is required to the exclusion of the other. Accordingly, where there is medical testimony as to percentage of disability and also testimony as to average post-injury wages, the Commission, in its search for a proper basis for computing reasonable compensation under Section 72-152, may avail itself of either. We think that the trial judge was in error in holding that a finding of disability percentage-wise is the exclusive basis upon which compensation for partial disability under the Code section just mentioned is to be determined.

The award must, of course, be supported by competent evidence; it may not rest upon speculation, as, for example, the possibility that diminution of earning capacity not shown to exist at the time of the hearing may occur at some time in the future as the result of the injury, Keeter v. Clifton Mfg. Co., supra; it is subject, within the period limited by Section 72-359, to review on the Commission's own motion, or upon application by any party in interest, upon the ground of a change in the employee's condition, occurring after the award, as the result of the injury. Cromer v. Newberry Cotton Mills, 201 S.C. 349, 23 S.E.2d 19; Keeter v. Clifton Mfg. Co., supra; Allen v. Benson Outdoor Advertising Co., 236 S.C. 22, 112 S.E.2d 722.

The third and fourth assignments of error before mentioned will be considered together. The Commission found that appellant 'as a result of the injury has a limp and a scar on his low back which constitutes a serious bodily disfigurement; and as a result of the injury has lost by surgery two intervertebral discs of the low back, which is a loss of a 'member or organ' of the body within the contemplation of the Act'. For the 'serious bodily disfigurement', it awarded $350; for the loss of two intervertebral discs it made an additional, separate, disfigurement award of $1,000.

'Disfigurement' has been defined as 'that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect, or deforms in some manner.' Murdaugh v. Robert Lee Const. Co., 185 S.C. 497, ...