Moses v. National Union Coal Mining Co.

• Decision Date: 19 October 1921
• Docket Number: 34200
• Citation: 184 N.W. 746,194 Iowa 819
• Parties: ALFRED MOSES, Appellant, v. NATIONAL UNION COAL MINING COMPANY et al., Appellees
• Court: Iowa Supreme Court

184 N.W. 746

194 Iowa 819

ALFRED MOSES, Appellant, v. NATIONAL UNION COAL MINING COMPANY et al., Appellees

No. 34200

Supreme Court of Iowa, Des Moines

October 19, 1921

REHEARING DENIED NOVEMBER 21, 1922.

Appeal from Monroe District Court.--D. M. ANDERSON, Judge.

BOTH parties appeal from an award by the court below, in a proceeding under the Workmen's Compensation Act.--Affirmed on plaintiff's appeal; reversed on cross-appeal.

Affirmed on plaintiff's appeal; reversed on cross-appeal.

Clarkson & Huebner, for appellant.

J. F Dammann, Jr., and D. W. Bates, for appellees.

STEVENS J. EVANS, C. J., ARTHUR and FAVILLE, JJ., concur.

OPINION

STEVENS, J.

I.

Both parties have appealed from the judgment of the court below in a proceeding under the Workmen's Compensation Act. As the claimant first gave notice, he will be designated as the appellant. The subject of compensation alone is involved.

Appellant, a coal miner employed by the National Union Coal Mining Company of Albia, on or about July 21, 1917, was injured by slate falling from the roof of his working place in the mine and striking him on the right shoulder and right leg. His injuries consisted of a fracture of the shoulder blade and a compound fracture of the tibia at its lowermost extremity. The injury to the shoulder completely healed, without resulting disability, and is not involved herein. On August 7, 1918, appellant entered into a stipulation with the National Union Coal Mining Company, as employer, and the Maryland Casualty Company, as insurer, by the terms of which appellee agreed to pay him $ 623 in full of compensation for the disability incurred,--that is, at the rate of $ 6.23 per week for 100 weeks. This stipulation was duly filed in the office of the industrial commissioner. The last payment was due and paid August 27, 1919, when a final receipt and release were executed to the company by appellant.

On July 18, 1919, appellant filed a petition, under the provisions of Section 2477-m34 of the 1913 Supplement, with the industrial commissioner, asking that the settlement be reopened and the case reviewed. A hearing was had before the commissioner, resulting in the setting aside of the settlement, and an award of compensation for a period of 125 weeks at $ 6.23 per week, with provision for credit of payments previously made.

Upon appeal to the district court, the finding of the commissioner was set aside, and an award was made by the court of $ 6.23 per week for the entire period of disability, not, however, exceeding 300 weeks. Both parties concede that the allowance made by the commissioner for 125 weeks was proper, and should have been sustained. Appellant, however, further contends that he is entitled to compensation under Paragraph 14. Subdivision j, of Section 2477-m9, and also under Subdivision h thereof. The injury to appellant's leg resulted in complete and permanent ankylosis, or stiffening of the ankle. There is also a sinus above each malleolus, from which a thin pus is discharged. This discharge is caused by a decayed condition of the bone. The physicians who testified before the industrial commissioner gave it as their opinion that the sinuses will ultimately completely heal.

Subdivision h of Section 2477-m9, as amended by Chapter 270 of the Acts of the Thirty-seventh General Assembly, is as follows:

"For injury producing temporary disability, 50 per cent of the average weekly wages received at the time of injury, subject to a maximum compensation of $ 15 and a minimum of $ 6.00 per week; provided, that if at the time of injury the employee receives wages less than $ 6.00 per week, then he shall receive the full amount of wages per week. This compensation shall be paid during the period of such disability, not, however, beyond 300 weeks."

Subdivision j, as amended by Chapter 270 of the Acts of the Thirty-seventh General Assembly, and Paragraph 14 thereof, is as follows:

"For disability partial in character and permanent in quality, the compensation shall be as follows: * * *

"(14) For the loss of a foot, 50 per cent of daily wages during 125 weeks."

No specific provision is to be found in the Workmen's Compensation Act for disability resulting from the loss of the use of a foot. Section 18 (Section 19, as renumbered by Chapter 270, Acts of the Thirty-seventh General Assembly) of Subdivision j, Section 2477-m9, is as follows:

"In all other cases in this, clause (j), the compensation shall bear such relation to the amount stated in the above schedule as the disability bears to those produced by the injuries named in the schedule. Should the employee and employer be unable to agree upon the amount of compensation to be paid in cases not specifically covered by the schedule, the amount of compensation shall be settled according to provisions of this act as in other cases of disagreement. "

The commissioner found that the disability resulting from the injury to appellant's ankle was partial in character and permanent in quality; and, as compensation for the permanent loss of the use of a foot is not otherwise provided by statute he classified the disability as one coming under the provision of Paragraph 18, and allowed compensation for the same number of weeks as is provided in Paragraph 14 for the loss of a foot. That is, he found that the relation the compensation for the disability shown bore to the disability resulting from the loss of a foot was 100 per cent. The statutes of several of the stats specifically provide that "loss of the use" of a member shall be equivalent to the "loss" of the member, and in a few cases, the disability has been so treated, in the absence of statute. Clarke. Kennebec Journal Co. (Me.), 113 A. 51; Kramer v. Sargent & Co., 93 Conn. 26 (104 A. 490); McLean's Case, 119 Me. 322 (111 A. 383); Bristow Cotton Oil Co. v. State Indus. Com., 77 Okla. 316 (188 P. 658); Choctaw Portland Cem. Co. v. Lamb, 79 Okla. 109 (189 P. 750); Ballou v. Industrial Com., 296 Ill. 434 (129 N.E. 755); Mark Mfg. Co. v. Industrial Com., 286 Ill. 620 (122 N.E. 84); Spring Canyon Coal Co. v. Industrial Com. (Utah), 193 P. 821; Chicago Home for Friendless v. Industrial Com., 297 Ill. 286 (130 N.E. 756).

It was the opinion of some, at least, of the medical witnesses that the disability resulting from the ankylosis of the ankle was, in reality, greater than would have resulted from the amputation of the foot, after an artificial member had been provided. It seems to us that the classification adopted by the commissioner and the method of computation is correct, and that the compensation awarded by him for 125 weeks should have been sustained by the court below. Upon this point the parties are agreed, at least as to the amount allowed.

II. It is, however, contended by counsel for appellant that the injury was also compensable under Subdivision h. This contention presents a more difficult question for decision. The act nowhere provides that, in case of the loss of a member, compensation shall be allowed therefor and also for the loss of earning capacity under Subdivision h, nor does it specifically deny compensation for both. The compensation provided in the several paragraphs under Subdivision j is for "disability." The whole theory and purpose of our Workmen's Compensation Act is to provide partial compensation to an injured employee during the period of disability resulting from such injury, not however, in excess of a designated number of weeks. The word "disability," as here used, certainly means impairment or lessening of earning capacity,...