In re McConnell, 1797

• Decision Date: 24 January 1933
• Docket Number: 1797
• Citation: In re McConnell, 45 Wyo. 289, 18 P.2d 629 (Wyo. 1933)
• Parties: IN RE McCONNELL; v. MURPHY BROS., ET AL McCONNELL
• Court: Wyoming Supreme Court

18 P.2d 629

45 Wyo. 289

IN RE McCONNELL;

McCONNELL v. MURPHY BROS., ET AL

No. 1797

Supreme Court of Wyoming

January 24, 1933

APPEAL from the District Court, Natrona County; C. D. MURANE, Judge.

Proceedings under the Workmen's Compensation Law by Henry McConnell employee, against Murphy Bros., employer.The District Court awarded compensation, and from an order denying the petition of H. R. Weston, State Treasurer, to re-open the case, the Treasurer appeals.

Affirmed.

For the appellant there was a brief by J. A. Greenwood, Attorney General, Richard J. Jackson, Deputy Attorney General, George W. Ferguson, Assistant Attorney General and R. Dwight Wallace, Assistant Attorney General, all of Cheyenne Wyoming, and oral argument by Mr. Wallace.

Claimant was awarded relief for temporary total disability aggregating the sum of $ 817.32; hospital and medical expenses in the amount of $ 300.00 were also paid.Thereafter, claimant filed his supplementary application alleging forty per cent of permanent total disability upon which a hearing was had and an order made awarding claimant $ 600.00.Thereafter, the State Treasurer petitioned for the re-opening of the case alleging that error had been committed in allowing the said award of $ 600.00 and contending that the payments made the claimant should be deducted from the permanent award.The court below denied said petition and the State Treasurer appealed.The petition of the Treasurer was based on Section 124-137, R. S. 1931.Rules of construction of Workmen's Compensation Acts require liberal construction to effectuate the purpose of the law and carry out the intent of the legislature.Also such acts must be construed as a whole.Schneider, Vol. 2, P. 2130, 28 R. C. L. 758;Klippert v. Ind. Ins. Dept., (Wash.)196 P. 17;In re Cannon, (Ind.)117 N.E. 658;Exchange v. Chicago R. R. Co.,43 F.2d 885;Surety Co. v. Ragle, (Texas)40 S.W.2d 63.Payments made for total temporary disability should be deducted from awards made for permanent disability.Sakamoto v. Coal Co.,36 Wyo. 325;Marsh v. Aljoe,41 Wyo. 220.Double compensation was not intended.Section 124-120, Section124-121 R. S.;Hardin v. Fuel Co., (La.)85 So. 202;Spring Canyon Coal Co. v. Comm., (Utah)193 P. 821;Caus. Co. v. Jones, (Ga.)157 S.E. 904;Coal Co. v. Comm., (Ill.)127 N.E. 751;Marhoffer v. Marhoffer, (N. Y.)116 N.E. 379;Stand. Cabinet Co. v. Landgrave, (Ind.)132 N.E. 661.A contrary result is stated in a Colorado case, due to a statute, Ind. Co. v. Guar. Co., (Colo.)180 P. 568, but the later case of Mutual Ins. Co. v. Comm.,3 P.2d 1079 seems to be in accord with the weight of authority.The award was apparently intended to be for permanent partial disability.The case did not come within the rule relating to permanent total disability.The court erred in refusing to re-open the case.

For the respondent there was a brief and also oral argument by Fred W. Layman, of Casper, Wyoming.

The issue of fact is clearly stated in appellant's brief.Appellant's contentions are not supported by the Sakamoto and Marsh case cited in his brief.The Colorado case of Comm. v. Co.,180 P. 561 has not been overruled.There was an amendment of the statute and that influenced the decision of the Ins. Co. v. Comm.,3 P.2d 1079.The Kentucky case of Wirth v. Meece,277 S.W. 834 is based upon the peculiar provisions of the Kentucky statutes.See also, Workmen's Compensation Bd. v. Coke Co., (Ky.)245 S.W. 900.In the case of Addison v. Wood Co.,174 N.W. 151, the court refused to read into the acts the principle propounded by the appellant.This court in Marsh v. Aljoe, said: "Courts are not agreed as to whether or not total temporary disability may be compensated in addition to permanent partial disability."The following cases support the decision of the court below: Armstrong Co. v. Brook, (Ky.)10 S.W.2d 478;Uphoff v. Ind. Co., (Ill.)111 N.E. 128.The Kentucky legislature provided that compensation for permanent partial disability as specified, shall be in lieu of all other compensation, but where the permanent partial disability is of a kind not specified by the legislature, claimant is entitled to receive compensation for permanent partial disability in addition to compensation for temporary total disability.This is clearly in keeping with the general rule of liberal interpretation.Addison v. Wood, supra.

RINER, Justice.KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

On April 23, 1931, the District Court of Natrona County made an order of award in favor of Henry McConnell, hereinafter generally referred to as the employee, under the Workmen's Compensation Laws of this state.Rev. St. 1931, Sec. 124-101 et seq.The order, in brief, recited that McConnell had two minor children dependent upon him; that he had suffered an injury on February 9, 1931, in the course of his employment whereby his left leg below the knee was fractured; that he was entitled to disability compensation, the monthly amount prescribed by law being stated and that the disability still continued.Subsequent follow-up orders continued the monthly payments.Neither these nor the original award appear to have been questioned.

On May 31, 1932, the court made another order of award reciting in effect that the employee had received compensation payments for temporary total disability since February 9, 1931--the sum of such payments being $ 817.32; that he had suffered in consequence of the injury aforesaid a 40 per cent. "permanent total disability" of the left leg below the knee and that, accordingly, for this he was awarded the further sum of $ 600 to be paid by the Industrial Accident fund.The word "total" appears to have been inadvertently used for the word "partial" in the last clause above.

In due time, the State Treasurer filed his petition to reopen the case, asserting that the District Court was without jurisdiction to make an award for any sum whatsoever as permanent total disability, and that the aggregate allowance to the employee for temporary total disability was in excess of the full amount authorized by statute to be paid to him for his injury.On August 9, 1932, the matter of this petition was heard and an order was entered by the court declining to grant the prayer thereof.The Treasurer has brought the record here for review by direct appeal from the order last mentioned.

Appellant in his brief reiterates the contentions set out in his petition as detailed above and asserts that the court should have deducted from the amount found to be due the employee as permanent partial disability, the sums received as temporary total disability awards.Whether this criticism of the order of award made May 31, as aforesaid, is correct appears to be the sole controverted question submitted for decision.

It is to be noted that no attack is here made upon the orders awarding temporary total disability in this case.So far, too, as the authority of the court to enter an order awarding compensation for permanent partial disability is concerned, there can hardly be any serious doubt, for the statute expressly confers upon the court the right to make such an order.Wyo. Rev. St. 1931, § 124-120, subdivision (a).As remarked above, the problem to be disposed of is whether the order as made is correct.

We approach its solution with the principle in mind that statutes of the character under consideration should be interpreted with reasonable liberality, that the benefits they were intended to secure may be accomplished.This view was intimated in Sakamoto v. Kemmerer Coal Co.,36 Wyo. 325, 255 P. 356, through quotation from appellate state courts of high authority.And the court of last resort of the nation, relative to the same matter, has recently said:

"Such laws operate to relieve persons suffering such misfortunes of a part of the burden and to distribute it to the industries and mediately to those served by them.They are deemed to be in the public interest and should be construed liberally in furtherance of the purpose for which they were enacted and, if possible, so as to avoid incongruous or harsh results."Baltimore & Philadelphia Steamboat Co. v. Norton,284 U.S. 408, 52 S.Ct. 187, 76 L.Ed. 366.

It is conceded by counsel for the parties that the point for decision has never been directly determined here.However, we are reminded of the case of Sakamoto v. Kemmerer Coal Co., supra, where it was held that a payment to a workman of an award for temporary total disability should be deducted from a subsequent amount awarded for total permanent disability, and Marsh v. Aljoe,41 Wyo. 220, 284 P. 260, 263, where that rule was re-affirmed.In the case last cited, this court remarked on the disagreement in the decisions of appellate courts concerning the question "whether or not total temporary disability may be compensated in addition to permanent partial disability, some holding that a workman's temporary total disability is distinct from permanent partial disability, even though arising out of the same injury."Appellant seeks to bring the instant case within this rule of deduction announced in these two prior decisions of this court.We are asked to consider a number of cases from other jurisdictions which, it is said, "support the contention that payments for temporary total disability should not be made or if made, should be deducted where the injury falls under a schedule of stated payments for specific injuries and allows for their payment as permanent partial disability."

Other than as indicating the views of lawmaking bodies and courts as to whether an award for temporary total disability may be followed by an additional award for permanent partial disability, all growing out of the same injury, is a wise...