Keeter v. Clifton Mfg. Co.

• Citation: 225 S.C. 389,82 S.E.2d 520
• Decision Date: 14 June 1954
• Docket Number: No. 16880,16880
• Parties: KEETER v. CLIFTON MFG. CO. et al.
• Court: United States State Supreme Court of South Carolina

Page 520

82 S.E.2d 520

225 S.C. 389

KEETER v. CLIFTON MFG. CO. et al.

No. 16880.

Supreme Court of South Carolina.

June 14, 1954.

C. Yates Brown, Spartanburg, for appellant.

Thomas B. Butler, Spartanburg, for respondents.

OXNER, Justice.

This is an apeal from an order of the Circuit Court reversing in part an award of the Industrial Commission.

While employed as a doffer by the Clifton Manufacturing Company, claimant sustained an injury by accident on March 19, 1952, which arose out of and in the course of his employment. He returned to work on April 29, 1952, and was given a job somewhat lighter than his previous work but with no decrease in wages. Around October 1st he went back to doffing and was so engaged on October 15, 1952, when his claim for compensation was heard by the single Commissioner. It is undisputed that from April 29th to October 15, 1952, his average weekly wage exceeded that received at the time he sustained his injury. He has been paid temporary total disability during the period he was unable to work and the insurance carrier has also paid his medical expenses. In an award filed on May 4, 1953, the single Commissioner found that as a result of the accident, claimant 'had a general disability of 25%', but was 'performing the same type of work that he performed before the accident and that his average weekly wage has not been lessened by reason of the accident.' The award relating to partial disability was as follows:

'It is ordered, that the defendants shall pay to the claimant, J. C. Keeter, compensation at sixty (60%) per cent of the difference between his average weekly wage before the injury and the average weekly wage which he is able to earn thereafter, but not more than Twenty-five ($25.00) Dollars per week, and in no case the period covered be more than three hundred (300) weeks from the date of the injury, less the number of weeks paid for temporary total disability.'

The foregoing award was affirmed by a majority of the full Commission on August 10, 1953. It is conceded that its effect is to render the employer and carrier liable for partial disability if at any time during the period of 300 weeks, claimant is unable because of his injury to earn as much as he did before the accident.

The Circuit Judge reversed that portion of the award relating to future liability. He held that inasmuch as at the time of the hearing before the Industrial Commission claimant was earning as much or more than he did prior to the accident, there was no basis for allowing compensation; that the authority of the Industrial Commission only extended to passing upon the status of the claim as it stood at the time of the hearing; and that it was not empowered to make an anticipatory finding that claimant's physicial impairment may develop into a compensable disability.

'Disability' is defined in the Act, Section 72-10 of the 1952 Code, as 'incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.' After providing compensation for total disability in Section 72-151, it is provided in Section 72-152 that when the incapacity for work resulting from the injury is partial, there shall be paid 'to the injured employee during such disability a weekly compensation equal to sixty per cent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter * * *.'

With certain exceptions with which we are not now concerned, compensation under the Act is not awarded for the physicial injury as such, but for 'disability' produced by such injury. The disability is to be measured by the employee's capacity or incapacity to earn the wages which he was receiving at the time of his injury. Loss of earning capacity is the criterion. There is no recognition of the elements of pain and suffering, or of increased discomfort and difficulty in performing the work, as long as there is no diminution in earning capacity. Parrott v. Barfield Used Parts, 206 S.C. 381, 34 S.E.2d 802; Dameron v. Spartan Mills, 211 S.C. 217, 44 S.E.2d 465.

It is suggested in the circuit decree and strenuously argued by claimant's counsel that earnings equal to those received prior to the injury are not conclusive of non-impairment of capacity, but at most create a presumption of such non-impairment which may be overcome by other evidence showing that post-injury wages received by an employee are not actually earned. A number of circumstances are called to our attention ad demonstrating the unreliability of post-injury earnings as a fair criterion of earning capacity in every case. This is an interesting question which need not be pursued here. In the instant case, the Industrial Commission has not found as a fact that cl...