Branham v. Denny Roll & Panel Co.

• Decision Date: 02 June 1943
• Docket Number: 665.
• Parties: BRANHAM v. DENNY ROLL & PANEL CO. et al.
• Court: North Carolina Supreme Court

25 S.E.2d 865

223 N.C. 233

BRANHAM v. DENNY ROLL & PANEL CO. et al.

No. 665.

Supreme Court of North Carolina

June 2, 1943

Claim for compensation for general partial disability under the Workmen's Compensation Act. Code 1939, § 8081(h) et seq. The plaintiff, an employee of defendant Denny Roll & Panel Company, on April 26, 1942 suffered an injury arising out of and in the course of his employment. While assisting in loading a box car he started to get out the door. His foot slipped and he fell to the ground. As a result he suffered a contusion over the lumbar spine. He is now suffering a 33 1/3%, or more, general partial disability in the loss of the use of his back. This loss of use of his back is due to an old compressed fracture of the twelfth dorsal vertebra which "is probably due to this old fractured spine which probably occurred at the time of the injury." In all probability he will never again be able to do heavy manual labor.

At the time of and prior to his injury claimant was in charge of the machine room and of loading and unloading cars and trucks acting in a supervisory capacity, "to keep things moving." He would "pinch-hit" if a man was off his machine or in the event other physical assistance was needed. He returned to his job within seven days (the waiting period under section 28 of the Act) after his injury. As he was not able to do the physical work he had theretofore done his employer hired another man and assigned some of the duties of the superintendent to claimant. He is earning the same wage and has lost no compensable time from his work. All medical bills except those of Duke Hospital and for dental services have been paid by the employer or insurance carrier.

The commission found:

"1. That the claimant, J.M. Branham, has a 33 1/3% or more general partial disability under Section 30 and that he has been tendered and has accepted employment suitable to his capacity as provided for in Section 32; and that Branham is entitled to compensation under Section 30 for 300 weeks from the date of the accident, April 26th, 1940, less such time that he has been paid full wages.

"2. That Branham has been and is being paid full wages in lieu of compensation by his employer; that Branham has lost not more than seven days (the waiting period, Section 28) from his work due to said injury by accident."

It thereupon ordered that the defendants pay to the proper parties "the reasonable medical, surgical and hospital costs of treatments rendered the claimant at Duke Hospital and for payment of dental bills incurred as a result of his injury by accident, after bills have been submitted to and approved by the Commission."

It further ordered that an award issue "providing that the defendants pay the claimant compensation at the rate of 60% of the difference between the wage he was earning before the accident and the wage that he is able to earn thereafter any time it is shown that the claimant is earning less due to his injury by accident within 300 weeks from the date of the accident." The claimant appealed to the Superior Court and when the cause came on to be heard in the court below the judge, being of the opinion that the full commission was in error in directing the award as above quoted and being further of the opinion that no award for compensation can be made at this time in view of the facts submitted, ordered the said award stricken and remanded the cause to the full commission "to the end that it proceed in accordance with the law as laid down by the court." The plaintiff excepted and appealed.

James B. Lovelace, of High Point, and Smith, Wharton & Jordan and George M. Chapman, all of Greensboro, for plaintiff-appellant.

Ruark & Ruark, of Raleigh, for defendants-appellees.

BARNHILL Justice.

The Workmen's Compensation Act, Ch. 120, P.L., 1929, as amended (Michie's N.C.Code of 1939, Ch. 133A), provides primarily for four several types of compensation to be paid to employees covered by the Act for injuries arising out of and in the course of their employment. They are:

1. Compensation for disability, dependent as to amount upon whether the injury produces a permanent total, a permanent partial, a total temporary or a partial temporary incapacity. Secs. 29 and 30.

2. Compensation in stipulated amounts for loss of some part of the body such as a finger or toe, a leg or arm. Sec. 31.

3. Compensation for death. Sec. 29.

4. Compensation for bodily disfigurement. Sec. 31.

The claim here made comes within the first class embracing injuries which produce a permanent partial incapacity. The compensation is to be computed upon the basis of the difference in the average weekly earnings before the injury and the average weekly wages he is able to earn thereafter. Sec. 30.

The general purpose of the Act, in respect to the first class, is to substitute, in cases to which it is applicable, for common-law or statutory rights of action and grounds of liability a system of money payments based upon the actual loss of wages by way of relief for workers for injuries received in the course of and arising out of their employment. Duart v. Simmons, 231 Mass. 313, 121 N.E. 10; Centlivre Beverage Co. v. Ross, 71 Ind.App. 343, 125 N.E. 220. To guard against the possibility that an injured employee may refuse to work when, in fact, he is able to work and earn wages, and thus increase or attempt to increase the amount of his compensation, the benefits of the Act are denied to him so long as he refuses, without justification, to accept employment procured for him suitable to his capacity. Sec. 32.

All payments are by way of financial relief for inability to earn wages, or for deprivation of support from wages theretofore received. "Compensation", in the connection in which it is used in the Act, means a money relief afforded according to the scale established and for the persons designated in the Act. Duart v. Simmons, supra; Centlivre Beverage Co. v. Ross, supra.

The statute provides no compensation for physical pain or discomfort. It is limited to the loss of ability to earn. "The loss of his capacity to earn *** is the basis upon which his compensation should be based." Sec. 30. Gillen v. Ocean, [etc.] Corp., 215 Mass. 96, 102 N.E. 346, 348, L.R.A.1916A, 371; Centlivre Beverage Co. v. Ross, supra. It is only intended to furnish compensation for loss of earning capacity. Without such loss there is no provision for compensation in section 30, although even permanent physical injury may have been suffered. Weber v. American, etc., Co., 38 R.I. 309, 95 A. 603; Ann.Cas.1917E, 153.

What then is the meaning of "disability" as used in the statute? It is defined in the Act: "The term 'disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." Sec. 2(i).

The disability because of the injury is to be measured by the capacity or incapacity of the employee to earn the wages he was receiving at the time of the injury. It is not his inability to do the identical kind or type of work as theretofore. That is to say, the right to compensation is not dependent upon the inability to do substantially the same work as before the injury. It is confined to the loss of ability to earn in the same or any other employment. Smith v. Swift & Co., 212 N.C. 608, 194 S.E. 106.

In short, under our Act wages earned, or the capacity to earn wages, is the test of earning capacity, or, to state it differently, the diminution of the power or capacity to earn is the measure of compensability.

It follows that, as the claimant is now earning wages in an amount equal to those received by him prior to his injury, he has failed to show any compensable injury or incapacity.

However urgently he may insist that he is "not able to earn" his wages, the fact remains that he is receiving now the same wages he earned before his injury. That fact cannot be overcome by any amount of argument. It stands as an unassailable answer to any suggestion that he has suffered any loss of wages within the meaning of the...