Gobble v. Clinch Valley Lumber Co

• Decision Date: 19 March 1925
• Citation: 127 S.E. 175
• Court: Virginia Supreme Court
• Parties: GOBBLE . v. CLINCH VALLEY LUMBER CO. et al.

127 S.E. 175

GOBBLE .

v.CLINCH VALLEY LUMBER CO. et al.

Supreme Court of Appeals of Virginia.

March 19, 1925.

Appeal from Industrial Commission of Virginia.

Proceeding under the Workmen's Compensation Act by H. S. Gobble against the Clinch Valley Lumber Company and others. From a decision of the Industrial Commission ap-proving the findings of the hearing commissioner, claimant appeals. Reversed and remanded, with directions.

Will H. Nickels, of Gate City, for the plaintiff in error.

S. L. Sinnott, of Richmond, for the defendant in error.

BURKS, J. This is an appeal from a decision of the Industrial Commission, rendered July 21, 1924.

The hearing commissioner, whose findings were fully approved by the Commission, found the following facts:

"H. S. Gobble, on August 4, 1922, jumped from a runaway log car and fractured the left leg just above the ankle. The fracture was a serious one; both bones being broken and considerable displacement accompanied the fracture. In October of 1922, an agreement was entered into to pay the injured $12 per week beginning August 5, 1922, and continuing during his disability. Pursuant to this agreement the claimant was paid the sum of $828, covering a period of 69 weeks, on account of the inability to work which followed the accident.

"This hearing was held to determine the amount of loss of use of the foot that the claimant has suffered and the amount of compensation due on account of such loss of use."

He also found that the permanent partial loss of the foot amounted to 60 per cent. His conclusions of law thereupon were as follows:

"The claimant, having lost 60 per cent. of the use of his foot, is entitled to compensation at the rate of $12 per week for a period of 75 weeks, in accordance with the terms of sections 32(o) and 32(s). This amounts to the sum of $900. There has been paid, however, $828, covering the period of 69 weeks pursuant to an agreement entered into in October, 1922, and approved on December 12, 1922. The foregoing sum for the permanent loss of use of the foot therefore is subject to a credit for the amount already paid, leaving due a balance of $72."

In the opinion of the Commission it is said:

"The sole question involved upon review is whether the insurance carrier should be allowed to take credit for payments made the claimant during his temporary total disability period upon the amount awarded him for specific loss of use of his leg. The claimant contends that he should be allowed both."

After some discussion, the Commission answers the question propounded as follows:

"Without further discussion, the opinion of the hearing commissioner, which allowed credit for payment under temporary total disability, is adopted, and is affirmed in all respects."

The Workmen's Compensation Act (Acts 1918, c. 400, p. 637), although in derogation of the common law, is highly remedial and should be liberally construed in favor of the workman. It is an effort on the part of the state to insure the workman to a limited extent against loss from accidents in his employment, to give him a speedy and expeditious remedy for his injury, and to place upon industry the burden of losses incident to its conduct. The compensation is furnished in weekly installments when most needed, promptly after the injury, and the immediate need of physicians and hospital service and supplies are furnished at the expense of the employer. Acts of this character have proved so beneficial that they have been adopted in nearly every state of the Union.

Crawford v. Virginia I. C. & C. Co., 136 Va. 266, 118 S. E. 229, does not contain any detailed interpretation of the act, but the principle therein applied and in the cases therein cited is controlling in the instant case.

The proper interpretation of the act is not free from difficulty. The sections involved in the instant case are 30, 31, and 32, copied in the margin as amended March 15, 1920.¹

One of the misconceptions about the act is that section 32 fixes the amounts to be paid for the permanent total disability of the members therein mentioned, and that the amounts recoverable by the workman can never exceed the sums mentioned in that section.

Section 30 alone provides for total incapacity, whether it be temporary or permanent, and it fixes the maximum and minimum amounts to be paid therefor. If the weekly wage is between $24 and $10, one-half of the weekly wage is the measure per week.² If less than $10, the measure per week is $5, if more than $24, the measure is $12 per week, but in no case shall the period of compensation exceed 500 weeks, nor the total compensation exceed $4,500. This section applies to any and every member of the body resulting in total incapacity.

Section 31 applies to partial incapacity, temporary or permanent, resulting from injury to every member of the body except those mentioned in section 32. As section 32 is an exception to section 31, only as to members of the body mentioned in section 32, and section 31 deals only with partial incapacity, section 32 must be held applicable to partial incapacity only. Sections 31 and 3, 2 do not apply to the same state of facts.

In cases of accident, usually the total incapacity comes first, that is, at the time of the accident, and the partial incapacity thereafter, but a fair construction of the act allows the workman compensation for both, subject to the qualification contained in section 30. The period fixed by section 32 (o) for the loss of a foot is 125 weeks. If this partial incapacity be ascertained to be 00 per cent. it would be 60 per cent. of $12 per week, or $7.20 per week for 125 weeks, or 60 per cent. of 125 weeks, or 75 weeks at $12 per week. So that upon this basis the workman is entitled to $900 in addition to what he has already received. The credit allowed by the Commission in effect allowed nothing for the total incapacity. In this there was error. He should have been allowed the amount paid him for total incapacity, and in addition thereto the amount stated above for permanent partial incapacity. It is immaterial that the two sums aggregate more than the sum mentioned in section 32 for loss of the use of a foot, as the latter only fixed the maximum amount to be allowed for permanent partial disability.

The Georgia statute (Laws Ga. 1920, p. 167) is almost identical with ours, and the sections of the Georgia statute under consideration by its court have the same numbers as the sections of our statute under consideration in the instant case. The conclusion we have reached is the same as that reached by the Court of Appeals of Georgia in Jones v. Georgia Casualty Co., 30 Ga. App. 207, 117 S. E. 467. In that case it was said:

"Taking the language as it stands, section 32 might seem to afford the sole and exclusive remedy, and provide the sole and exclusive compensation, for all disabilities, both total and partial, caused by injuries to the particular members therein dealt with. The order passed by the superior court judge indicates that he does not so interpret it, but in his opinion the employee or the Commission is privileged to disregard the provisions of section 32, even when the disability is occasioned by permanent injury to one of the bodily members embraced in the schedule in that section, and to proceed for total disability under section 30, and for additional partial disability under section 31. The statute certainly cannot mean that an employee is limited to the rights given him under section 32 for all compensation occasioned by an injury to the members therein enumerated. To illustrate such an interpretation of the rule: If a person were to suffer an injury to his thumb, and the wound, through infection or other cause, rendered him totally and continuously disabled for a period of 50, 100, or even 350 weeks, but upon final recovery he should retain two-thirds of the use of his thumb, he could only be entitled to 50 per cent. of his weekly wages...