Kellams v. Carolina Metal Products, Inc.

• Decision Date: 09 April 1958
• Docket Number: No. 234,234
• Citation: 248 N.C. 199,102 S.E.2d 841
• Court: North Carolina Supreme Court
• Parties: Viola KELLAMS, Employee, v. CAROLINA METAL PRODUCTS, Inc., Employer; and New York Mutual Casualty Insurance Company, Carrier.

Page 841

102 S.E.2d 841

248 N.C. 199

Viola KELLAMS, Employee, v. CAROLINA METAL PRODUCTS, Inc., Employer; and New York Mutual Casualty Insurance Company, Carrier.

No. 234

Supreme Court of North Carolina.

April 9, 1958

Robert L. Scott, Charlotte, for plaintiff, appellant.

Carpenter & Webb, L. B. Carpenter, Charlotte, for defendants, appellees.

HIGGINS, Justice.

The hearing commissioner determined the plaintiff's average weekly wages before the accident amounted to $46. Under the provisions of G.S. § 97-31(p) she would have been entitled to 60 per cent of her average weekly wages, or $27.60, if the loss of the use of her leg had been total. But inasmuch as she lost only 10 per cent of the use of her leg she was entitled to weekly payments of only 10 per cent of the $27.60, or $2.76. The award required the payment of that amount for a period of 200 weeks. On appeal, the commission and the superior court affirmed the award.

The real controversy in this case turns on the interpretation of the language in G.S. § 97-31(t) as the subsection was written at the date of the injury: 'The compensation for partial loss * * * shall be such proportion of the payments above provided for total loss as such partial loss bears to total loss.' The plaintiff contends the commission made the correct determination as to the weekly wages, ($46) and of the 60 per cent thereof ($27.60), and the per cent disability (10%); and the number of weeks the disability is deemed to continue (200). However, she contends the commission fell into error by awarding her only $2.76 per week instead of $8 as required by G.S. § 97-31(u): 'Weekly compensation payments referred to in this section shall all be subject to the same limitations as to maximum and minimum as set out in G.S. § 97-29.' (Emphasis added.) Section 97-29 fixed the minimum weekly payment at $8. Her contention is, the proper award should have required the payment of $8 per week for 200 weeks.

The defendants are satisfied with the award and they do not object to the method used by the commission in fixing it at $2.76 per week for 200 weeks. They do object to the application of the $8 weekly minimum rule. They contend the minimum as provided in Sec. 97-29 applies only to total disability. The contention is quite correct, but G.S. § 97-31 provides for partial disability and subsection (u) provides the weekly compensation payments thereunder shall all be subject to the minimum fixed in Sec. 97-29; and we must look to that section for the minimum, and for nothing more. The defendants further contend the application of the $8 weekly minimum was never intended in a case like this for the reason that the plaintiff would receive the same award per week for her 10 per cent disability as she would receive had her disability been 29 per cent. The contention is quite correct. On the other hand, if her weekly wages had been $150 and her disability 33 1/3 per cent, she would receive just the same--the maximum $30--as if her disability were fixed at any point above 33 1/3 per cent.

The inevitable effect of any minimum is to permit the same award for a minor injury as for a greater one up to the point where the award is equal to the fixed minimum. Under the maximum and minimum provisions the rule for calculating the award is observed in the ascending scale until the maximum is reached--and there the award stops and the maximum contuols rather than the calculation. In precisely the same way the rule for calculating the award is observed in the descending scale until the minimum is reached--and there it stops and the minimum controls rather than the calculation. The effect of a maximum and minimum provision is to fix a ceiling above which, and a floor below which, an award may not go. The maximum and minimum provisions do not enter into the mathematical stips in making the calculation. However, when the calculation is made, the maximum and minimum provisions come into play to control the award only to the extent that it must not exceed $30 (as of 1953) or it must not fall below $8.

A stronger argument for sustaining the amount of the award can be made out by giving G.S. § 97-31(t) (as of 1953) a different interpretation. That is, by taking 10 per cent of the number of weekly payments rather than 10 per cent of the amount of one such payment. In other words, as contended, the award should be $27.60 per week for 20 weeks rather than $2.76 per week for 200 weeks as actually fixed by the commission. The total would be the same.

In this case the difference in the method of determining the amount of the award, whether $2.76 per week for 200 weeks or $27.60 per week for 20 weeks, becomes important to the parties only by reason of the applicability of the $8 minimum weekly payment provision of G.S. § 97-31 and G.S. § 97-29 constured together.

The method of calculating the award by applying the per cent of disability to the weekly wages rather than to the number of weekly payments during which the disability is presumed to continue has been specifically approved by this Court in the case of Watts v. Brewer, 243 N.C. 422, 90 S.E.2d...