G. E. Moore Co. v. Walker

• Decision Date: 10 February 1958
• Docket Number: No. 17387,17387
• Citation: 102 S.E.2d 106,232 S.C. 320
• Parties: G. E. MOORE CO. et al., Petitioners, v. Henry C. WALKER, Jr., and James J. Reid, individually and as members of, and constituting the South Carolina Industrial Commission, Respondents.
• Court: South Carolina Supreme Court

Page 106

102 S.E.2d 106

232 S.C. 320

G. E. MOORE CO. et al., Petitioners, v. Henry C. WALKER, Jr., and James J. Reid, individually and as

members of, and constituting the South Carolina

Industrial Commission, Respondents.

No. 17387.

Supreme Court of South Carolina.

Feb. 10, 1958.

Butler & Chapman, Spartanburg, Grier, McDonald, Todd, Burns & Bradford, Greenwood, Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, Whaley & McCutchen, Columbia, Smith & Moore, Georgetown, for petitioners.

T. C. Callison, Atty. Gen., Julian L. Johnson, Asst. Atty. Gen., for respondents.

Claude R. Dunbar, Spartanburg, amicus curiae.

OXNER, Justice.

We are called upon in this case to determine the correct method of calculating compensation payable under our Workmen's Compensation Act for partial loss, or for partial loss of use, of various members of the body enumerated in Section 72-153 of the 1952 Code.

From the enactment of this legislation in 1935 to August, 1957, the Industrial Commission used the following formula in determining compensation for partial specific losses under Section 72-153 'Maximum number of weeks compensable for total specific loss X the percentage of specific loss X the weekly compensable rate (60% of average weekly wage, but not more than $35.00, nor less than $5.00).'

On August 5, 1957, the Commission, one member dissenting, announced that effective as of Augut 1, 1957, the following formula would be applied:

'Average weekly wage X compensation rate X percentage of anatomical loss for the statutory period as specified.'

It was further stated:

'Application of this formula is subject to the $35.00 maximum and the $5.00 minimum.'

Shortly thereafter a number of employers and insurance carriers filed a petition in this Court in which they alleged that the new formula adopted by the Commission was erroneous and issued without lawful authority and that the enforcement thereof would work a great injustice. They asked this Court to assume original jurisdiction and declare the new formula null and void and enjoin the Commission from enforcing it. By an order of the Chief Justice, issued on October 26, 1957, we assumed original jurisdiction of the case, restrained the Commission pendente lite from enforcing the new formula and required it to show cause why a permanent injunction should not issue. A return was duly filed by the Industrial Commission and the case heard at the December, 1957, term of this Court.

The sole question presented is the proper formula to be used in determining compensation payable for specific (schedule) partial losses under Section 72-153. This section can better be understood after reviewing the two preceding sections.

Section 72-151, as amended in 1953, 48 St. at L. 103, provides that in the case of total disability from an injury, there shall be paid 'to the injured employee during such total disability a weekly compensation equal to sixty per cent of his average weekly wages, but not more than thirty-five dollars, nor less than five dollars a week; and in no case shall the period covered by such compensation be greater than five hundred weeks.'

Under Section 72-152, as amended in 1953, 48 St. at L. 103, in the case of partial disability resulting from an injury, the employer, except as otherwise provided in Section 72-153, is required to pay 'to the injured employee 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, but not more than thirty-five dollars a week. In no case shall the period covered by such compensation be greater than three hundred weeks from the date of injury.' This section further provides: 'In case the partial disability begins after a period of total disability, the latter period shall be deducted from the maximum period allowed in this section for partial disability.'

The first paragraph of Section 72-153 reads as follows: 'In cases included in the following schedule, the disability in each case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified therein.' There is then separately listed various members of the body for the loss, or the loss of the use, of which compensation is to be paid on the basis of 60% of the average weekly wage for certain specified periods, varying in each case with the nature and gravity of the loss. For instance, 'For the loss of a thumb sixty per cent of the average weekly wages during sixty weeks'; 'For the loss of a third finger, sixty per cent of the average weekly wages during twenty weeks'; 'For the loss of an arm, sixty per cent of the average weekly wages during two hundred weeks'; 'For the loss of an eye, sixty per cent of the average weekly wages during one hundred weeks.'

After this schedule is the following paragraph which gives rise to this controversy:

'The compensation for partial loss of or for partial loss of use of a member or for partial loss of vision of an eye shall be such proportion of the payments above provided for total loss as such partial loss bears to total loss.'

The concluding paragraph of Section 72-153 is as follows:

'The weekly compensation payments referred to in this section shall all be subject to the same limitations as to maximum and minimum as set out in § 72-151.'

In our discussion of the question presented it is well to keep in mind that an award for total disability under Section 72-151 or for partial disability under 72-152 is predicated upon loss of earnings or of earning capacity. Keeter v. Clifton Manufacturing Co., 225 S.C. 389, 82 S.E.2d 520, 522. It was there stated: 'Loss of earning capacity is the criterion.' Compensation for the loss of a member or the loss of the use of a member under Section 72-153 is not dependent on actual wage loss. Hoke v. Cherokee County, 216 S.C. 376, 58 S.E.2d 330; Roper v. Kimbrell's of Greenville, Inc., S.C., 99 S.E.2d 52. The fact that the claimant after his injury is regularly employed at greater earnings than before is immaterial. In determining the amount to be awarded under Section 72-153, wages are considered only to a certain limit, and then only for the purpose of determining the amount to be allowed per week. The period during which the weekly payments are to continue is based solely on the character of the injury and not upon the earnings or earning capacity of the injured employee.

The amount which an employee receives for total loss under Section 72-153 is determined by applying a certain percentage of his weekly wages to the period specified. Compensation for partial loss 'shall be sued proportion of the payments above provided for total loss as such partial loss bears to total loss.' The word 'payments' refers to the payments for the total loss of a member in the preceding 18 subdivisions of Section 72-153. The statute clearly contemplates that the compensation for partial loss of a member shall be that amount which the percentage of incapacity bears to the amount which the claimant would have been permitted to recover if he had sustained a complete loss of such member. The underlying basis is proportionate compensation and this can only be achieved by applying the percentage of incapacity to the period specified for the loss of a member. We think the Commission was clearly in error in making the amount of the weekly payments the variable element.

The new rule adopted by the Commission practically nullifies the rule of proportion for partial incapacity as contained in Section 72-153. This clearly appears from the charts presented to us. For instance, under the new rule an employee earning $90 a week would receive exactly the same compensation for 65% loss of the arm as for a 100% loss and an employee earning $40 a week would receive exactly the same compensation for 20% loss of the arm as for a 5% loss. On the other hand, the old formula results in exact proportionate compensation. Surely it was not contemplated that one employee who has received a permanent partial incapacity to a specific member of the body should receive as much compensation as another employee who has sustained a complete loss of the same member of the body. In Baltimore & Philadelphia Steamboat Company v. Norton, 284 U.S. 408, 52 S.Ct. 187, 188, 76 L.Ed. 366, the Court in construing the Longshoremen's and...