Glenn v. Industrial Accident Board

• Decision Date: 15 November 1944
• Docket Number: No. 9461.,9461.
• Citation: Glenn v. Industrial Accident Board, 184 S.W.2d 302 (Tex. App. 1944)
• Parties: GLENN et al. v. INDUSTRIAL ACCIDENT BOARD et al.
• Court: Texas Court of Appeals

184 S.W.2d 302

GLENN et al. v.INDUSTRIAL ACCIDENT BOARD et al.

No. 9461.

Court of Civil Appeals of Texas. Austin.

November 15, 1944.

Rehearing Denied December 6, 1944.

Appeal from District Court, Travis County; J. D. Moore, Judge.

Mandamus proceeding by O. E. Glenn and others against the Industrial Accident Board and others to compel such board and its members to approve a compromise settlement agreement under the Workmen's Compensation Act between O. E. Glenn, employee, and Humble Pipe Line Company, employer, and Petroleum Casualty Company, insurance carrier.The trial court denied mandamus, and O. E. Glenn and others appeal.

Reversed and remanded with instructions.

Powell, Wirtz, Rauhut, & Gideon, of Austin, and K. W. Gilmore, of Houston, for appellants.

Grover Sellers, Atty. Gen., and David Wuntch, Elton M. Hyder, Jr., and Geo. W. Barcus, Asst. Attys.Gen., for appellees.

BLAIR, Justice.

This litigation arose as an original mandamus proceeding, filed in the Ninety-Eighth district court of Travis county, to compel the Industrial Accident Board and its members to approve a compromise settlement agreement made under the Workmen's Compensation Act. Vernon'sAnn. Civ.St. art. 8306 et seq.The trial court denied the mandamus.

The material facts are not in dispute.AppellantO. E. Glenn was an employe of the Humble Pipe Line Company, which carried compensation insurance with appellantPetroleum Casualty Company under the Workmen's Compensation Act.On December 26, 1941, Glenn received an injury in the course of his employment, which resulted in a permanent partial disability to his forearm immediately above the wrist, or to his hand, estimated at from 15 to 20 per cent by the examining physician.On December 26, 1943, Glenn and the Petroleum Casualty Company submitted to the Board for approval a compromise settlement agreement between them under the provisions of Sec. 12 of Art. 8307 of the Workmen's Compensation Act, which reads: "Where the liability of the association or the extent of the injury of the employé is uncertain, indefinite or incapable of being satisfactorily established, the board may approve any compromise, adjustment, settlement or commutation thereof made between the parties."

The compromise agreement complied with and contained all information required by the rules and regulations of the Board in such cases.The sworn statements of both Glenn and the Humble Pipe Line Company showed the time and character of the injury, the amount of time lost by Glenn, the amount of compensation previously paid to him, and his average weekly wages.The sworn statement of the examining physician showed the nature, extent and duration of the injury, and that it had resulted in a permanent partial disability to the forearm or hand of from 15 to 20 per cent.

The settlement agreement stated that the average weekly wage of Glenn was $50.77, which under Sec. 12 of Art. 8306 carried a maximum compensation of $20 per week for total loss of the hand, or during the total disability period resulting from the injury to the arm or hand; that he lost 12 3/7 weeks from work, for which he had been paid at the maximum rate of $20 per week, aggregating $248.58; and that under the agreement he would be paid $550.28 for the remaining 137 4/7 weeks of partial permanent disability to the arm or hand.Thus the settlement agreement showed that the parties merely subtracted the compensation already paid for the 12 3/7 weeks of total disability from 150 weeks, which left 137 4/7 weeks of partial permanent disability, and then took 60 per cent of $50.77, the weekly wage, which was more than $20, the maximum compensation, and then multiplied the maximum rate of $20 by the 20 per cent partial permanent disability, which resulted in the sum of $4 per week compensation for the 137 4/7 weeks, or the total agreed sum of $550.28; which agreement the Board was requested to approve, but declined to do so as follows:

"The Board has finally declined to approve this compromise settlement agreement in this amount for the following reasons only:

"You have not figured the amount of compensation due for the claimant's percentage of disability in accordance with the Board's rule, which is:

"Sixty per cent of the claimant's average weekly wage ($50.77 × 60% equals $30.46), multiplied by 17.5%, being a split between 15% and 20% that the doctor gives as the claimant's remaining permanent partial disability, produces a compensation rate of $5.33 per week. 150 weeks to the hand less twelve weeks, previously paid for temporary total disability, leaves a remainder of 138 weeks.After discounting 138 weeks there remains 127¾ weeks to this specific member (hand), which multiplied by 17.5 per cent of sixty per cent of his average weekly wage $5.33 per week, amounts to $680.70.

"Should you be willing to raise the compromise settlement agreement to the above figure, the Board will be willing to approve it, otherwise, the Board has declined to approve it as presented."

Sec. 12 of Art. 8306 provides as compensation "for the loss of a hand, sixty per cent of the average weekly wage during one hundred and fifty weeks."The last part of Sec. 12 of Art. 8306 provides as follows: "In all other cases of partial incapacity, including any disfigurement which will impair the future usefulness or occupational opportunities of the injured employé, compensation shall be determined according to the percentage of incapacity, taking into account among other things any previous incapacity, the nature of the physical injury or disfigurement, the occupation of the injured employé, and the age at the time of injury.The compensation paid therefor shall be sixty per cent of the average weekly wages of the employé but not to exceed $20.00 per week, multiplied by the percentage of incapacity caused by the injury for such period not exceeding three hundred weeks as the board may determine."

From the recitations and calculations in the settlement agreement and in the order of the Board refusing to approve same, it clearly appears that the only issue involved is with respect to the different constructions placed upon the last quoted portion of the statute by the parties.It is the contention of appellants that the phrase "but not to exceed $20 per week" modifies the phrase immediately preceding such phrase, "sixty per cent of the average weekly wages of the employee," while appellees, the Board and its members, contend that such phrase "but not to exceed $20 per week" goes back farther and modifies the phrase "the compensation paid therefor shall be sixty per cent of the average weekly wage of the employee."

Except as to increase of compensation allowed the foregoing statutes have remained substantially unchanged since their enactment.Earlier Court of Civil Appeals decisions show substantially the same difference of construction of these statutes as is presented by the parties hereto.SeeWestern Indemnity Co. v. Milam, 230 S. W. 825, writ refused;Maryland Casualty Co. v. Ferguson, 252 S.W. 854;Miller's Indemnity Underwriters v. Cahal257 S. W. 957;Texas Employers' Ins. Ass'n v. Shilling, 279 S.W. 865;Dohman v. Texas Employers' Ins. Co., 285 S.W. 848, and see alsoMaryland Casualty Co. v. Laughlin, 5 Cir., 29 F.2d 343.A discussion of these different constructions will serve no purpose here, because the Supreme Court has now settled such differences.Beginning with the case of Texas Employers' Ins. Ass'n v. Moreno, Tex.Com.App., 277 S.W. 84, it was held that the compensation due for permanent partial incapacity to a specific member of the body is to be determined under the last paragraph of Sec. 12 of Art. 8306, above quoted; and in the case of Lumbermen's Reciprocal Ass'n v. Pollard, Tex.Com.App., 10 S.W.2d 982, 983, said section 12 is construed as follows: "If the person had a permanent partial incapacity to a member, he should receive the compensation provided in section 12 for the loss of the specific member proportioned to the percentage of incapacity which the loss sustained would bear to the total loss of the member."

In the case of Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926, 928, the proper construction of the applicable portions of Sec. 12 with respect to the computation of compensation for the permanent partial incapacity of a hand is set at rest, as follows:

"With regard to a permanent partial loss of the use of a hand, it has been repeatedly held, in effect, that such a loss comes within the purview of the above provisions and that payment of compensation each week, as there provided, is required to be made in the proportion that the use of the hand is permanently lost.Petroleum Casualty Co. v. Seale, Tex.Com.App., 13 S.W.2d 364;Lumbermen's Reciprocal Ass'n v. Pollard, Tex.Com.App., 10 S.W.2d 982;Texas Employers' Ass'n v. Maledon, Tex.Com.App., 27 S.W.2d 151.That holding was expressly approved by the Supreme Court in the Seale case, and impliedly approved in the other two.In conference with the Supreme Court, we have been authorized to declare all holdings to the contrary, in other cases, overruled.

"With regard to the temporary, total loss of the use of a hand, where no injuries except to the hand are involved, it is our opinion that such a loss is contemplated by the above-quoted provisions of the statute; and that weekly payments of compensation was meant to be provided thereby, for a period of time corresponding to the duration of such loss, at the same rate, and subject to the same time limitation, as in case of permanent loss of the use of a hand.In reaching this conclusion we rely largely on the holding in the cases cited above.The reasons given for the holding there made apply with equal force here.We are mindful that, as we construe the quoted statutory provisions, a temporary, total loss of the use of a hand for as much as 150 weeks would call for the same total amount of compensation as if the loss were...