Goodyear Tire & Rubber Co. of Ala. v. Downey

• Decision Date: 21 March 1957
• Docket Number: 7 Div. 218
• Citation: 266 Ala. 344,96 So.2d 278
• Parties: GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA v. M. H. DOWNEY.
• Court: Alabama Supreme Court

Page 278

96 So.2d 278

266 Ala. 344

GOODYEAR TIRE & RUBBER COMPANY OF ALABAMA v. M. H. DOWNEY.

7 Div. 218.

Supreme Court of Alabama.

March 21, 1957.

Rehearing Denied June 27, 1957.

Hood, Inzer, Martin & Suttle, Gadsden, for appellant.

Hawkins & Rhea, Gadsden, for appellee.

GOODWYN, Justice.

This proceeding was commenced in the circuit court of Etowah County for the recovery of benefits under the Alabama Workmen's Compensation Law, Code 1940, Tit. 26, § 253 et seq., as amended, by Morton H. Downey, appellee, for disability allegedly resulting from an accident which arose out of and in the course of his employment by Goodyear Tire and Rubber Company of Alabama, defendant below and petitioner here. The trial court awarded compensation to the plaintiff and the case is here on certiorari.

The Company admitted in its answer to the complaint that the relationship of employer and employee existed between it and the plaintiff at the time of the accident and that they were subject to the Workmen's Compensation Law of Alabama then in force; that plaintiff suffered the alleged accident 'which arose out of and in the course of his employment, of which accident defendant had notice', and that on the date of said accident 'the plaintiff was a married man living with his wife and two dependent children under 18 years of age.' As to the accident and the injuries sustained by plaintiff, the answer alleges the following:

'* * * [T]he Plaintiff's right leg was caught between two skids at the plant of the Defendant and as a result thereof the tibia in said right leg was fractured. Defendant further avers that said fracture has healed but admits that Plaintiff is now suffering a permanent partial disability of twenty to twenty-five per cent of the loss of the use of his right foot. Defendant denies that Plaintiff's entire right leg is permanently and totally disabled, and it denies that Plaintiff's entire body is permanently and partially disabled and that his ability to engage in gainful employment and his earning capacity is permanently and substantially decreased, and Defendant again avers that under and by virtue of the nature of the injuries received by Plaintiff in said accident and the applicable provisions of the Workmen's Compensation law of Alabama Plaintiff's only disability is as hereinbefore alleged.'

Evidence was taken orally before the trial court from which the court found, as a part of its finding of facts, § 304, Tit. 26, Code 1940, that plaintiff had suffered a 'permanent partial disability to the extent of 35%'. Judgment was thereupon entered awarding compensation at the rate of $21 per week for 300 weeks, it being ordered that accrued payments be paid in a lump sum less the payments already made by defendant to plaintiff. The defendant thereupon, within thirty days after rendition of the judgment, filed a motion to set aside the judgment and grant a new trial. One ground of the motion was that there was 'no determination or finding of fact in said judgment of the difference, if any, between the average weekly earnings of plaintiff at the time of the injuries and the average weekly earnings he is able to earn in his partially disabled condition'. Thereafter, more than thirty days after the judgment but while the motion for new trial was still pending, Code 1940, Tit. 13, § 119, the finding of facts was amended by adding thereto the following:

'The Court further finds that although plaintiff has continued on the same job in his employment with defendant that he had prior to the time of said accident, and although plaintiff has to date sustained no substantial decrease in his actual earnings, the plaintiff's physical condition is poorer as hereinbefore set out. The plaintiff's training and experience for most of his adult life has been employment with the defendant on jobs requiring physical stamina and considerable physical effort. The plaintiff does not and is not able to perform the heavier or more strenuous duties attendant to his job but that, to the contrary, his fellow employees regularly and consistently help plaintiff by performing his heavier and more strenuous duties. The Court finds that plaintiff as a direct and proximate result of said accident suffered and sustained a permanent decrease in his earnings capacity to the extent of 35%; or in his partially disabled condition he is able to earn 65% of his average weekly earnings at the time of said accident.'

After making this amendment the motion for new trial was denied and the company brought certiorari.

There seems to be no question that the compensation to which plaintiff is entitled is controlled by schedule (C)6 of § 279, Tit. 26, Code 1940, as amended by Act No. 36, appvd. June 2, 1949, Acts 1949, pp. 47-52, which provided as follows:

'In all other cases of permanent partial disability not above enumerated, the compensation shall be fifty-five percent of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition subject to the same maximum as stated in subsection (A).'

It is insisted by the company that since the evidence shows that plaintiff, after his injury, received the same salary which he received prior thereto, that this excludes the idea that his ability to earn has been decreased as a result of his disability. While this might presumptively indicate that his ability to earn has not been impaired, the mere fact that his employer pays him the same earnings in his disabled condition as it did before he was injured is not the sole determining factor. The statute does not prescribe comparative wages received before and after the injury as the test of the employee's ability to earn. Instead, the test is the difference between the average weekly earnings at the time of the injury and the average weekly earnings the employee 'is able to earn in his partially disabled condition'. It seems to us that this clearly excludes any notion of limiting the determination of a loss in ability to earn to the one question of wages actually earned after the injury as compared with those earned before. There are other factors which may be considered. In this connection we quote the following from Larson's Workmen's Compensation Law, Vol. 2, § 57.21, pp. 4-6:

'Degree of disability is calculated under most acts by comparing actual earnings before the injury with earning capacity after the injury.

'It is at once apparent that the two items in the comparison are not quite the same. Actual earnings are a relatively concrete quantity; rules for their measurement, for this purpose and for the general purpose of fixing claimant's benefit level, are set out in a later section. Earning capacity, however, is a more theoretical concept. It obviously does not mean actual earnings, since the legislature deliberately chose a different phrase for the post-injury earnings factor. Even under those statutes which compare, for example, 'average monthly wages before the accident' with 'the monthly wages he is able to earn thereafter', the test remains one of capacity. If the legislature had spoken of the wages 'he has earned thereafter', or even the wages 'he has been able to earn thereafter', the comparison of actual wage with actual wage would be indicated. But the concept of wages he 'is able' to earn cannot mean definite actual wages alone, especially in the absence of a fixed period of time within which post-injury wages are to be taken as controlling.

'In essence, the problem is one of tying earnings to a period of time. The relevant period of time for prior earnings can be made relatively short and definite, such as the six months preceding the accident. Once an arbitrary past period is specified as setting the basis for computing an average weekly wage, there can be little argument about what wages were in fact earned. But the relevant period for post-injury earnings melts away into the indefinite future. Obviously we cannot take an arbitrary period of, say, six months after the injury as conclusive, since for a multitude of reasons that period might be entirely nonrepresentative. On the other hand, we cannot wait out the rest of claimant's life to see what his average weekly wage loss ultimately turned out to be, for by then it would be too late for the award to do him any good. An award must be made now and paid now. The only possible solution is to make the best possible estimate of future impairment of earnings, on the strength not only of actual post-injury earnings but of any other available clues.

'It is uniformly held, therefore, without regard to statutory variations in the phrasing of the test, that a finding of disability may stand even when there is evidence of actual post-injury earnings equalling or exceeding those received before the accident. The position may be best summarized by saying that actual post-injury earnings will create a presumption of earning capacity commensurate with them, but the presumption may be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable basis for estimating capacity. Unreliability of post-injury earnings may be due to a number of things; increase in general wage levels since the time of accident; claimant's own greater maturity or training; longer hours worked by claimant after the accident payment of wages disproportionate to capacity out of sympathy to claimant; and the temporary and unpredictable character of post-injury earnings.

'The ultimate objective of the disability test is, by discounting these variables, to determine the wage that would have been paid in the open labor market under normal employment conditions to claimant as injured, taking wage levels, hours of work, and claimant's age and state of training as of exactly the same period used for calculating actual wages earned before the injury. Only by the...