In re Denton

• Decision Date: 30 October 1917
• Docket Number: No. 10024.,10024.
• Parties: In re DENTON. In re GOOD.
• Court: Indiana Appellate Court

65 Ind.App. 426

117 N.E. 520

In re DENTON.

In re GOOD.

No. 10024.

Appellate Court of Indiana, Division No. 2.

Oct. 30, 1917.

Certified Questions from State Industrial Board.

Proceedings by Denton and Good for compensation under the Workmen's Compensation Act. On certification of questions to the Appellate Court by the Industrial Board. Questions answered in the affirmative.

CALDWELL, J.

The facts in the Denton Case pending before the Industrial Board, as certified to this court, are in substance as follows: September 2, 1915, Denton, an employé of the Union Hominy Company, suffered in one and the same accident the following physical injuries: First, an injury to the left arm necessitating and resulting in its amputation above the elbow joint; second, a fracture of the sacrum, one of the pelvic bones. The results of the fracture of the sacrum have been as follows, as certified by the board: Denton was confined to his bed for 9 months, and to the hospital for 12 months. Since the accident and by reason of the fractured sacrum, he has continuously been unable to work. He is improving, and in all probability will be sufficiently recovered from said fracture to do work of a light character at the end of 100 weeks from the date of the injury, and at the end of 150 weeks from the date of the injury he will probably be completely recovered from the fracture. The circumstances are such as to entitle Denton to compensation under the Workmen's Compensation Act. Acts 1915, p. 392. In our discussion of this case, we shall assume that probabilities are reduced to certainties, and that there was a partial recovery from the effects of the fracture at the end of 100 weeks, and that there will be a complete recovery at the end of 150 weeks, as indicated.

The facts in the Good Case are in substance as follows: May 15, 1916, Good, an employé of the Dairy Queen Manufacturing Company, suffered in one and the same accident, the following physical injuries: First, dislocation of right elbow joint and certain fractures of the right arm and forearm, as a result of which there is a 75 per cent. permanent impairment of the use and function of said arm. Second, a fracture of the surgical head of the right femur, as a result of which fracture of the femur, Good was totally disabled for work for a period of 22 weeks. The circumstances are such as to entitle Good also to compensation under the Workmen's Compensation Act.

Under the provisions of section 31 of the Workmen's Compensation Act, the Industrial Board propounds to this court the following questions, seeking our opinion for guidance in determining said cases: (1) Is Denton entitled to compensation for 200 weeks for the loss of his arm, and also to the compensation for the period of disability beyond 14 days resulting from the fracture of the sacrum? (2) Is Good entitled to compensation for the 75 per cent. permanent impairment of the use of his right arm, and also to compensation for the period of disability beyond 14 days, resulting from the fracture of the femur? In each of these cases, we are required to deal with a permanent partial disability, based on the loss or impairment of a member, and also with a total temporary disability based on an injury to a distinct member, both disabilities in each case resulting from injuries suffered in one and the same accident. While it is probable that the injury in each case that resulted in such permanent partial disability contributed also to produce total disability for a time, the statement of facts is to the effect that the fracture of the sacrum in the one case and the fracture of the femur in the other case produced such total disability. Section 31 of the Workmen's Compensation Act is in part as follows:

“For injuries in the following schedule the employé shall receive in lien of all other compensation a weekly compensation equal to 55 per cent. of his average weekly wages, for the periods stated against such injuries, respectively, to wit: (a) For the loss by separation of not more than one phalange of a thumb *** 15 weeks. *** (h) For the loss by separation of one arm at or above the elbow joint *** 200 weeks. *** In all other cases of permanent partial disability *** compensation in lieu of all other compensation shall be paid when and in the amount determined by the Industrial Board, not to exceed fifty-five per cent. of average weekly wages per week for a period of two hundred weeks.”

It will be observed that section 31 deals only with injuries which result in permanent partial disability: First, with such a disability based on the loss of a member, as one thumb, finger, arm, eye, etc., or the destruction of the physical sense of hearing. For such a disability based on the loss of a member or the destruction of such physical sense, specifically mentioned, there is provided in each case a fixed period of compensation ranging from 15 weeks to 200 weeks. The section recognizes that there may be cases of permanent partial disability other than those based on injuries specifically mentioned, as, among others, the loss of more than one member of a given class, or the permanent impairment of a member, and as to any such other case the section authorizes the board to fix the period of compensation not exceeding 200 weeks, however. Compensation when so fixed is exclusive of all other compensation for the specific injury that results in permanent partial disability, even though such injury results immediately in temporary, but not permanent, total disability.

[1] Where, in an accident, an employé suffers the loss of a member or the destruction of a physical sense for which provision is specifically made by section 31, or suffers an injury resulting in permanent partial disability for which provision is not specifically made by said section, compensation must be awarded under that section, and when so awarded it is “in lieu of all other compensation for the particular permanent partial disability. The section does not by its terms exclude compensation for other injuries suffered in the same accident for which provision is made by other sections of the act (Marhoffer v. Marhoffer, 220 N. Y. 543, 116 N. E. 379), nor does it purport to cover cases of the loss of two or more members of a particular class, as two eyes, two hands, two or more fingers, etc., unless the injury results only in a permanent partial disability. In the latter case the general provisions of the section are applicable. Specifically, Denton is entitled under section 31 to compensation for 200 weeks for the loss of his arm, and Good under that section is entitled to compensation for such reasonable time as may be fixed by the board for the permanent partial impairment of his arm, but there is nothing in the terms of section 31 that excludes the former's right to compensation based on the disability caused by the fracture of his sacrum, or the latter, to compensation based on the disability resulting from the fracture of his femur.

[2][3] It is apparent from a consideration of the act that had Denton suffered no other injury than the fractured sacrum, and Good no other than the fractured femur, resulting in each case in a temporary total disability, as certified by the board, each would be entitledto compensation under certain sections of the act other than section 31. If then Denton and Good are not entitled to compensation respectively for the temporary total disability involved in the case of each respectively, it must be by reason of the permanent partial disability also involved and the compensation provided therefor by section 31. It will be observed that the period of total disability in the Denton Case, resulting from the fractured sacrum, is shorter than the period of compensation fixed by section 31 for the loss of Denton's arm, and also that in the Good Case, the period of total disability resulting from the fractured femur is shorter than the period of compensation that might reasonably be expected to be determined by the board under the general provision of section 31 for a 75 per cent. permanent impairment of an arm. Under such circumstances, we have determined that section 31 does not by its terms purport to bar either Denton or Good from compensation based on the temporary total disability involved in his case. We proceed to the question whether any provision found elsewhere in the act or whether its general spirit has such effect.

Section 31, as we have said, is confined to cases of permanent partial disability. It covers all cases of that class. Section 29 deals with all cases of total disability, both permanent and temporary, excepting, however, a temporary total disability that might result from an injury that comes within the provisions of section 31, resulting ultimately in a permanent partial disability. Section 29 is to the effect that there shall be paid to the injured workman during total disability, exclusive of the first two weeks, a weekly compensation equal to 55 per cent. of his average weekly wages for a period not to exceed 500 weeks. We construe section 30 as applicable only to cases of temporary partial disability. Otherwise it is in conflict with the general provisions of section 31. Section 30 is to the effect that in cases of partial disability, the injured workman shall be paid “during such disability,” exclusive of the first two weeks, but for a period not exceeding 300 weeks, a weekly compensation equal to half of the differences between his “average weekly wages” and the weekly wages at which he is actually employed after the injury. Sections 33 and 35 deal with successive permanent partial disabilities. The former is to the effect that where, in an employment, a workman receives a permanent injury, and subsequently in some other employment he receives another permanent...