Hawkeye-Security Ins. Co. v. Tupper

• Decision Date: 25 March 1963
• Docket Number: HAWKEYE-SECURITY,No. 20201,20201
• Citation: 152 Colo. 12,380 P.2d 31
• Parties: INSURANCE COMPANY and Carroll S. Jones, Plaintiffs in Error, v. Clinton S. TUPPER and Industrial Commission of Colorado, a corporation, Defendants in Error.
• Court: Colorado Supreme Court

Page 31

380 P.2d 31

152 Colo. 12

HAWKEYE-SECURITY INSURANCE COMPANY and Carroll S. Jones Plaintiffs in Error, v. Clinton S. TUPPER and Industrial Commission of Colorado, a corporation, Defendants in Error.

No. 20201.

Supreme Court of Colorado, En Banc.

March 25, 1963.

Wormwood, O'Dell & Wolvington, William P. DeMoulin, Denver, for plaintiffs in error.

Haney & Howbert, Byron L. Akers, Jr., Robert L. Russel, Colorado Springs, for defendants in error.

HALL, Justice.

The parties appear here in the same order as in the trial court.

We refer to Jones as the employer, to Hawkeye-Security Insurance Company as the insurance carrier, to Tupper as the claimant, and to the Industrial Commission as the commission.

On March 7, 1961, claimant suffered compensable injuries to his left foot which necessitated amputation of the left leg six and one-fourth inches below the knee. On May 1, 1961, he was fitted with a prosthetic leg and on that date began wearing it and was, on May 13, 1961, 'capable of returning to work, at least on a somewhat limited basis.'

The insurance carrier admitted liability and offered to pay and is willing to pay to claimant compensation at the miximum weekly rate for 139 weeks as provided by CRS '53, 81-12-4, which provides:

'In case an injury results in a loss set forth in the following schedule, the injured employee, in addition to compensation to be paid for temporary disability, shall receive compensation for the period as specified:

The * *

Loss of a leg at or above the knee, where the stump remains sufficient to permit the use of an artificial limb . . . 139 weeks.

'(3) Whenever amputation is made between any two joints mentioned in this schedule * * * the resulting loss shall be estimated as if the amputation had been made at the joint nearest thereto [here the knee]. * * *'

Medical testimony offered by the claimant was to the effect that claimant 'had a normal recovery, * * * somewhat faster than the average'; that on May 1, 1961, he was wearing his prosthetic leg, was doing very well and able to return to work;

'I would estimate his disability as a working unit on the basis of the average disability for an amputation at this level being, 70% disability for the leg and 28% disability for the man. * * *. I would estimate that his disability might well run somewhat more than average, perhaps 30 to 35% for the man.'

On June 30, 1961, the referee entered his order directing the insurance carrier to pay temporary disability through April 30, 1961, and:

'* * * thereafter to pay compensation at that same weekly rate [$40.25] until the additional sum of $10,465.00 shall have been paid, for and on account of maximum permanent partial disability.'

The insurance carrier contends that claimant's rights to permanent disability are limited, as provided by 81-12-4, supra. It had the order of award reviewed by the referee, the commission and the district court. All affirmed the order.

The employer and his insurance carrier are here by writ of error seeking reversal, contending that the commission's award of June 30, 1961, is erroneous, and that under the statute claimant is entitled to compensation for 139 weeks at the maximum rate of permanent disability.

Only one question is presented for our consideration, and that is whether claimant under the facts as presented may be awarded compensation in excess of that provided by 81-12-4.

Claimant contends that the commission in its discretion may make an award as provided in 81-12-9, and this even though 81-12-9 at the outset provides that:

'Where an accident causes injury resulting in permanent partial disability, except the sustaining of any one of the injuries specifically covered by sections 81-12-4 to 81-12-7 inclusive, the injured employee shall be deemed to be permanently disabled * * *.' (Emphasis supplied).

It is difficult to conceive of a situation more clearly covered by 81-12-4 than is that of claimant. One might conclude that the statute was written for the express purpose of defining the rights and duties of the parties before us. If it does not cover claimant's situation, then it does not cover any specific injury and is meaningless and a nullity. The statute is not ambiguous or indefinite. It needs no interpretation or construction.

Nearly all compensation acts have provisions for 'scheduled injuries' similar to 81-12-4.

The general rule governing cases such as we have here is stated in 99 C.J.S. Workmen's Compensation § 306, p. 1104:

'* * * the compensation acts ordinarily contain a schedule of specific injuries to which attach specific awards of compensation, and any award of compensation as to an injury included in the schedule is limited and determined thereby, * * *.

* * *

* * * 'Scheduled compensation for a specific injury is in the nature of damages or indemnity for the physical or functional loss and is to be awarded even though there is no loss of earning power or wages, and without regard to the extent of the disability suffered. * * *'

And, § 310, page 1118:

'Thus, it is generally held that for a specific injury relating solely to the injured member claimant cannot have compensation for disability, either total or partial. To obtain compensation in addition to that scheduled for the injured member, claimant must show that some other part of his body is affected. Where the injury is confined to the scheduled member, and there is no impairment of any other part of the body because of such injury, the employee is limited to the scheduled compensation even though other considerations, such as age, lack of training, or other conditions peculiar to the individual effect a total or partial industrial incapacity.'

Here, the injured member is claimant's leg. There is no proof of injury to any other member of claimant's body nor is there any proof of injury to claimant's leg above the point of amputation.

In Cresson Consol. Gold Min. & Mill. Co. v. Industrial Comm., 90 Colo. 353, 9 P.2d 295, the claimant suffered injuries which resulted in the amputation of the little finger of his left hand, and amputation...