Calumet Foundry & Mach. Co. v. Mroz

• Decision Date: 15 December 1922
• Docket Number: No. 11420.,11420.
• Citation: Calumet Foundry & Mach. Co. v. Mroz, 79 Ind.App. 305, 137 N.E. 627 (Ind. App. 1922)
• Court: Indiana Appellate Court
• Parties: CALUMET FOUNDRY & MACHINE CO. v. MROZ.

79 Ind.App. 305

137 N.E. 627

CALUMET FOUNDRY & MACHINE CO.

v.MROZ.

No. 11420.

Appellate Court of Indiana.

Dec. 15, 1922.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by John Mroz, claimant, opposed by the Calumet Foundry & Machine Company, employer.From an order of the Industrial Board granting an award, the employer appeals.Reversed for further proceedings.

Turner, Adams, Merrell & Locke and Paul E. Beam, all of Indianapolis, for appellant.

C. B. Tinkham, of Hammond, for appellee.

NICHOLS, C. J.

This is an appeal from an award of the full Industrial Board entered on the 28th day of February, 1922, in a proceeding brought by appellee under the provisions of the Indiana Workmen's Compensation Act(Laws 1915, c. 106), in which appellee made claim for compensation on account of an injury by accident sustained on the 4th day of January, 1921.

The full Board found that on the 4th day of January, 1921, appellee was in the employment of appellant at an average weekly wage of $40; that on said date he received a personal injury by an accident arising out of and in the course of his employment as the result of which the vision of his right eye was permanently reduced to less than 10 per cent. of normal vision; that the vision therefore was permanently reduced to light perception only; that about 17 years prior to the time that appellee entered the employment of appellant the vision of his left eye was permanently destroyed, so that by the injury of January 4, 1921, appellee has been totally blind with the exception of mere light perception in the right eye; that by reason of said blindness he has been totally disabled since injury; that appellant had actual knowledge of appellee's injury on January 4, 1921; that on the 22d of February 1921, appellee and appellant executed a written compensation agreement whereby the appellant agreed to pay to the appellee compensation at the rate of $13 per week, beginning with the 8th day of disability after his injury, and to continue during total disability, which agreement was approved by the Industrial Board on February 23, 1921; that under said agreement the appellant had paid to appellee up to date of the original hearing 49 weeks' compensation.On this finding a majority of the Industrial Board awarded appellee 350 weeks' compensation at the rate of $13.20 per week, beginning on the 12th day of January, 1921, and further ordered that appellant have a credit on this award for all compensation theretofore paid.

Appellant does not question the sufficiency of the evidence to support the findings of fact by the Industrial Board, but contends that under the facts as found by the Board the award is contrary to the provision of the Indiana Workmen's Compensation Act, which under subdivision“f” of section 31(seeLaws 1919, c. 57), allows 150 weeks' compensation for the permanent loss of the sight of an eye or its reduction to one-tenth of normal vision with glasses.

Under this provision, which appellant says needs no construction and can mean but one thing, it contends that appellee was entitled to compensation for 150 weeks, and no more, while appellee contends that under the facts found he is entitled to 500 weeks' compensation under subdivision“d” of the act, which provides compensation for injuries resulting in total permanent disability, or under subdivision“h,” which provides compensation in all other cases of permanent partial impairment than those mentioned in other subdivisions of the section(none of which can include the injury here involved), the same to be proportionate to the degree of such impairment in the discretion of the Industrial Board, not to exceed 500 weeks.

We proceed to give these provisions of the Compensation Act consideration in view of other provisions of the act, and of the curcumstances of this case as disclosed by the finding.It will be observed that under section 35 of the Compensation Act an employee who lost both eyes, one in each of two separate accidents, in the same employment, would be entitled to compensation for 500 weeks.The writer of this opinion assumes in this case that the previous permanent injury together with the subsequent permanent injury resulted in permanent total disability, for it is apparent from the language of subdivision“f” that the Legislature regarded the reduction of the sight of an eye to one-tenth of normal vision with glasses the same in effect as its total loss.If such total disability were sustained as a result of two separate accidents in different employments, the employee would receive compensation for only 300 weeks, if appellant's contention is to prevail.This is upon the assumption that the employee had previously received 150 weeks for the loss of one eye, and that in this employment, having lost one eye only, he would receive compensation for 150 weeks, making a total of 300 weeks.It is apparent that this would be an injustice to such employee when we consider the provision made in section 35 for an employee losing both eyes in the same employment, which we must presume that the Legislature did not intend, and one which we must avoid if we can do so by a reasonable and liberal construction of the act in favor of just compensation for the injured employee.

[1] When appellee entered the service of appellant, he had lost one eye, but there yet remained a degree of capacity which enabled him to perform the service for which he was hired, and for which we must assume that compensation was paid him in proportion to his capacity so to perform, and that upon this earning capacity, measured by the compensation that was paid to him, we must base his right to recover in this case.He was as much an employee in his limited capacity, with his correspondingly limited compensation therefor, as he would have been had he been possessed with the perfect sight of both eyes, and his previous impairment should not be taken into account in determining the amount of compensation to which he is entitled by reason of the injury received while in appellant's employ.Only the result of such injury to the employee in his then physical condition without reference to his previous disability should be considered.In re Branconnier's Case, 223 Mass. 273, 111 N. E. 792;Schwab v. Emporium Forestry Co., 167 App. Div. 614, 153 N. Y. Supp. 234;Keyworth v. Atlantic Mills Co., 42 R. I. 391, 108 Atl. 81, 8 A. L. R. note p. 1326;Kriegbaum v. Buffalo Wire Works Co., 182 App. Div. 448, 169 N. Y. Supp. 307.

We are fully aware that by this construction such second injury, when added to the previous injury, if it results in a total permanent disability to the injured employee, gives him compensation for 500 weeks, and that, if he had theretofore in another employment received compensation for previous injury, which, for illustration, let us say, was the loss of an eye, such employee would thereby receive a total compensation of 650 weeks, but such a possible result should not deter us from giving a just compensation under the rule of liberal construction in favor of an injured employee who is totally and permanently disabled by reason of such second injury.It must be kept in mind that the compensation for a permanent total disability resulting because of the second injury following a previous permanent injury, measured by his limited earning capacity resulting in lower wages, may not be as great as it would be had there been no previous impairment.

We reach the conclusion, then, that where there has been a previous total loss of one eye, and that thereafter, whether in the same or another employment, there is a total loss of the other eye, and the blindness resulting therefrom occasions permanent total disability, there should be a recovery for such total disability under subdivision“d” of section 31 of the Compensation Act, subject, however, to the deduction provided in said section 35, if the loss of both eyes occurs in the same employment.We have reached this conclusion by a careful study of the provisions of the Workmen's Compensation Act, giving the same a liberal construction in the light of principles of equity and justice in favor of the injured employee.Having reached this conclusion, we are confirmed therein by the decisions of other states underthe provisions of Workmen's Compensation Acts substantially similar to our own.

In Fair v. Hartford Rubber Works, 95 Conn. 350, 111 Atl. 193, an employee who had previously lost the sight of his left eye was injured in his right eye so that he was rendered permanently and totally blind, and it was held that he was entitled to an award for total, permanent disability.The court, citing Hartz v. Hartford Faience Co., 90 Conn. 539, 97 Atl. 1020, says:

“It is of no consequence that the total incapacity of this claimant is in part due to the fact that he had already lost one eye before suffering the injury in question; the right to compensation depends in each case on the extent to which the claimant is in fact incapacitated by the injury.”

In Combination, etc., Co. v. Court of Common Pleas(N. J. Err. & App.)115 Atl. 138, a workman, having already lost one eye at the time of entering his employment, sustained an accident in the course of his employment causing the loss of his remaining eye thereby rendering him totally blind, and it was held that an award for total and permanent disability was justified, under the Workmen's Compensation Law, with provisions substantially the same as ours, the court saying that-

“As a remedial act it should be liberally construed, and, applying this rule, we are clear that, as respects major injuries, like the loss of an eye, an arm, or a leg, the Legislature was dealing with a situation in which the other eye, arm, or leg would still be available.”

In Brooks v. Peerless Oil Co., 146 La. 383, 83 South. 663, it was held that an injury to a laborer's only eye so affecting his vision as to incapacitate him...