Klippert v. Industrial Ins. Dept. of Washington

• Decision Date: 15 February 1921
• Docket Number: 16081.
• Citation: 196 P. 17,114 Wash. 525
• Parties: KLIPPERT v. INDUSTRIAL INS. DEPARTMENT OF WASHINGTON et al.
• Court: Washington Supreme Court

196 P. 17

114 Wash. 525

KLIPPERT v. INDUSTRIAL INS. DEPARTMENT OF WASHINGTON et al.

No. 16081.

Supreme Court of Washington, En Banc.

February 15, 1921

Appeal from Superior Court, Whatcom County; Ed. E. Hardin, Judge.

Proceeding by Fred Klippert under the Workmen's Compensation Act to obtain compensation for personal injuries. From a judgment reversing the decision of the Industrial Insurance Department of Washington as to the amount of compensation, the latter and the Commissioners thereof appeal. Affirmed.

Mount and Mackintosh, JJ., dissenting.

Lindsay L. Thompson and Frank P. Christensen, both of Olympia, for appellants.

Newman Howard & Kindall, of Bellingham, for respondent.

HOLCOMB J.

On December 4, 1917, respondent while engaged in an extrahazardous occupation received an injury which resulted in the loss of one eye by enucleation, for which he received compensation from the Industrial Insurance Commission in the sum of $1,200. On July 9, 1919, he was again injured while engaged in an extrahazardous occupation which injury resulted in the loss of his major arm at the shoulder. He duly made claim to the appellant commission for compensation for the latter injury, and on November 25, 1919 he was awarded time loss from October 9, 1919, to November 6 1919, in the sum of $48.45, and an award for permanent partial disability in the sum of $800. The commission in making the award for permanent partial disability notified respondent that under the statute the award for the injury would have been $1,900, but by reason of the award of $1,200 previously made for the loss of an eye it was limited to the sum of $800 as compensation for the second injury, since the statute provides that $2,000 is the maximum amount payable by law for a permanent partial disability. Notice of appeal from this final award was given by respondent, and he filed a complaint, setting forth the facts herein stated, praying for judgment reversing the decision of the commission, and that it be directed by the court to award respondent the sum of $1,900 for the loss of his major arm, and for time loss in the sum of $48.45.

Appellant's demurrer to the respondent's complaint was by the court overruled, and judgment reversing the decision of the commission and directing it to award to respondent the sum of $1,900 for the loss of his major arm, and the sum of $48.45 for time loss, was entered upon appellant's announcement that it would stand upon its demurrer and decline to further plead. From this judgment entered July 27, 1920, the commission appeals to this court, and contends that the lower court erred in (1) overruling defendant's demurrer to the claimant's complaint, and (2) in directing that an award be made to plaintiff in any sum in excess of $800 for the loss of his major arm.

Workmen's Compensation Act, § 5, as originally enacted (Laws 1911, p. 345), provided as follows:

'(f) Permanent partial disability means the loss of either one foot, one leg, one hand, one arm, one eye, one or more fingers, one or more toes, any dislocation where ligaments are severed, or any other injury known in surgery to be permanent partial disability. For any permanent partial disability resulting from an injury, the workman shall receive compensation in a lump sum in an amount equal to the extent of the injury, to be decided in the first instance by the department, but not in any case to exceed the sum of $1,500.00. The loss of one major arm at or above the elbow shall be deemed the maximum permanent partial disability. * * *

'(g) Should a further accident occur to a workman already receiving a monthly payment under this section for a temporary disability, or who has been previously the recipient of a lump sum payment under this act, his future compensation shall be adjusted according to the other provisions of this section and with regard to the combined effect of his injuries, and his past receipt of money under this act.'

These two sections were before this court in the case of Biglan v. Industrial Insurance Commission, 108 Wash. 8, 182 P. 934, '(f) Permanent partial disability means the loss of either one foot, one leg, one hand, one arm, one eye, one or more fingers, one or more toes, any dislocation where ligaments were severed where repair is not complete, or any other injury known in surgery to be permanent partial disability. For the permanent partial disabilities here specifically described, the injured workman shall receive compensation as follows:

Loss of one leg amputated so near the hip

that an artificial limb cannot be worn ....... $2,000.00

Loss of one leg at or above the knee so that

an artificial limb can be worn ............... $1,900.00

Loss of one leg below the knee ................ $1,300.00

Loss of the major arm at or above the

elbow ........................................ $1,900.00

Loss of major hand at wrist ................... $1,600.00

Loss of one eye by enucleation ................ $1,200.00

Loss of sight of one eye ....................... $ 900.00

Complete loss of hearing in both ears ......... $1,900.00

Complete loss of hearing in one ear ............ $ 500.00

'Compensation for any other permanent partial disability shall be in the proportion which the extent of such other disability shall bear to that permanent partial disability above specified which most closely resembles and approximates in degree of disability such other disability, but not in any case to exceed the sum of two thousand dollars ($2,000.00). * * *

'(g) Should a further accident occur to a workman who has been previously the recipient of a lump sum payment under this act, his future compensation shall be adjudged according to the other provisions of this section and with regard to the combined effect of his injuries, and his past receipt of money under this act.

'Should such further accident result in the permanent total disability of such injured workman, he shall receive the pension to which he would be entitled notwithstanding the payment of a lump sum for his prior injury.'

Section 4, c. 131, Laws 1919.

The amendment last quoted above is the same as that amendment made to the 1911 law and subdivisions (f) and (g), section 1, by chapter 28, Laws of 1917, and appellants contend that these amendments are substantially the same as the 1911 act, except that the law now specifies and sets forth a schedule of awards to be made by the commission for the specific injury, and that the maximum amount to be received is raised from $1,500 to $2,000. In the 1911 act it is specified that the loss of one major arm above the elbow shall be deemed a permanent partial disability. The 1919 act does not specify what injury constitutes a maximum, but it is therein...