Dailey v. Pooley Lumber Co.
| Decision Date | 27 July 1943 |
| Docket Number | 46253. |
| Parties | DAILEY v. POOLEY LUMBER CO. et al. |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
Hallagan, Fountain, Steward & Cless, of Des Moines, for appellants.
James H. Graven and Galen W. Hesalroad, both of Greene, for appellee.
The ultimate question here may be briefly stated: Is claimant-appellee to be compensated under the schedule of specific coverages found in section 1396, Code of Iowa 1939 (); or for permanent total disability under section 1395?
The injury occurred in 1936 but the applicable statutory provisions were the same then as in the present Code of 1939. Our references will accordingly be to the latter. Appellee, while in the employ of defendant Pooley Lumber Company, and in the course of his said employment, suffered an injury consisting of a fracture of the surgical neck of the right femur. Whether there were further injuries to be considered is in controversy.
His right to compensation is unquestioned and the basic rate has been fixed by agreement. He has been paid weekly benefits at this agreed rate for a period of 224 weeks. If his present contention is upheld he will be entitled to further payments to make a total of 400 weeks. Code Section 1395. Defendant-appellants deny his claim for further compensation and say he was originally entitled to 200 weeks only (Code section 1396, paragraphs 15 and 20), and should be required to refund all he has been paid beyond that time overpayment having been made through inadvertence and mutual mistake.
As the trial court affirmed the finding of the commissioner allowing appellee full 400 weeks compensation for permanent total disability, our reference will be direct to the record made before the commissioner and to his decision as the decision of the trial court. He sums up his finding of fact concerning the extent of injury as follows:
I. We have first to determine whether appellee's injuries fall within the schedule. If they do, we are not concerned with the question of the extent of disability. The compensation in that event is definitely fixed according to the loss of use of the particular member. The very purpose of the schedule is to make certain the amount of compensation in the case of specific injuries and to avoid controversies. Schell v. Central Engineering Co., Iowa, 4 N.W.2d 399, 401, 143 A.L.R. 576, citing Brugioni v. Saylor Coal Co., 198 Iowa 135, 197 N.W. 470. See, also, Moses v. National Union Coal Mining Co., 194 Iowa 819, at pages 824, 825, 184 N.W. 746; Soukup v. Shores Co., 222 Iowa 272, at pages 277, 278, 268 N.W. 598.
Paragraph 15 of Code section 1396 is as follows:
The commissioner in his decision and award points out that paragraph 15 in and of itself does not apply because there has been no loss of the leg within the meaning of the paragraph as there has been no amputation; but that if the injuries of claimant are within the disabilities scheduled in that paragraph, then paragraph 20 of Code section 1396 provides the basis for determining the extent of disability. See, as bearing on this pronouncement, Moses v. National Union Coal Mining Co., supra. Said paragraph 20, sometimes called the "loss of use" subsection, provides:
We have no doubt of our right to review the commissioner's decision that claimant's injuries do not fall within paragraphs 15 and 20 just quoted. That decision in part clearly involved a conclusion of law in that it indulged in a construction of the pertinent statutory provisions.
Paragraph 15 of Code section 1396 seems never to have been judicially construed. However, paragraph 13 of the same Code section has identical language, except it is applicable to the arm instead of to the leg, and we have had occasion to examine it. Pappas v. North Iowa Brick & Tile Co., 201 Iowa 607, 206 N.W. 146, 148.
The injury in the cited case was loss of the arm at the juncture of the lower third with the middle third of the humerus. We held there that as the schedule provided the loss of two-thirds of that part of the arm between the shoulder joint and the elbow joint should equal the loss of an arm, the commissioner should determine "how much should be added to the hand schedule and how much deducted from the arm schedule in arriving at the compensation to be allowed." In other words, the loss being of something less than two-thirds of the humerus and of more than a hand, the compensation should be adjusted accordingly.
It is manifest this decision does not materially help us in the instant case. We have here a loss of more instead of less than "two-thirds of that part of a leg between the hip joint and the knee joint." The commissioner construed the schedule as defining a "legal leg" (as distinguished from the "anatomical" leg), "ending at a point two-thirds of the distance above the knee joint." From that premise he reasons that the loss of more than two-thirds of the femur is a loss of more than a leg and therefore not covered by the schedule. He points out the use of the word "more" in paragraph 7 of Code section 1396 as illustrative of his argument and reasons that because the word "more" or its equivalent does not occur in paragraph 15, the only "loss of leg" covered by the schedule is the one expressly described as "equal" to the loss of a leg.
We cannot agree with this interpretation of the statute. It is true the schedule does not anywhere in express language fix the compensation for the loss of an entire "anatomical" leg or for any part thereof that includes more than two-thirds of the femur. But the implication is clear that loss of an entire leg was intended to be made compensable the same as "the loss of two-thirds of that part of a leg between the hip joint and the knee joint." The statute says one shall equal the other. We cannot assume the legislature would provide different bases of compensation for "equal" injuries. It seems more logical to interpret the statute as providing a minimum that would be compensable the same as an entire leg. A loss of that minimum or any greater part up to and including the entire leg will be compensated during two hundred weeks.
Appellee argues that the word "between" in said paragraph 15 excludes the points which mark the boundaries of the area or space described,-in effect, that the hip joint is not included in the schedule. We do not think the language used was intended to fix or limit the definition of a leg. Rather, it was for the purpose of defining a certain portion of the leg that would be considered equal to the whole leg. Neither the hip joint nor the knee joint was referred to as defining the extent of the leg. We agree with the commissioner in rejecting appellee's contention on this point.
II. The commissioner, however, found as a fact that there was damage to the articular surface of the acetabulum or socket of the hip joint and a permanent tilting of the pelvis, representing a lowering of the right side of the pelvis, "accomplished through relative compensatory changes in the two sacro-iliac and the lumbo-sacral joints of the pelvis"; also "a compensatory curvature of the lumbar or lower spine due to the changed position of the pelvis."
This finding implies injury additional to the mere fracture of the neck of the femur,-in...
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