Northern Indiana Power Company v. Hawkins
| Decision Date | 17 March 1925 |
| Docket Number | 12,161 |
| Citation | 146 N.E. 879,82 Ind.App. 552 |
| Parties | NORTHERN INDIANA POWER COMPANY v. HAWKINS |
| Court | Indiana Appellate Court |
From Industrial Board of Indiana.
Application for compensation under the Workmen's Compensation Act by Evan Hawkins against the Northern Indiana Power Company. From an award for claimant, the defendant appeals.
Reversed.
Bell Kirkpatrick, McClure & Elliott, for appellant.
Overton & Manning and Turner, Adams, Merrell & Locke, for appellee.
OPINION
This is an appeal from the Industrial Board. In accordance with an agreement, appellee was awarded compensation during total disability. Later appellant filed an application for a review on account of a change in condition, alleging that the disability of appellee had ended. Appellee also filed an application to review on the ground that his injury had resulted in a permanent partial impairment.
A hearing on these applications was had before a single member and on September 12, 1924, the full board on review made a finding that appellee's injury had resulted in an eighty per cent. "permanent impairment as a man, that is he is 80 per cent. impaired to work and earn wages." Appellee was awarded 400 weeks compensation at the rate of $ 13.20 per week, the total not to exceed $ 5,000. On September 17, appellant filed a verified petition to vacate and set aside the award, for certain specified reasons. This motion was dismissed by the board on its own motion. The errors assigned are that the board erred in overruling the motion to vacate the award, and that the award is contrary to law.
Having come to the conclusion that the award must be reversed because of the insufficiency of the finding to sustain the award, we need not, and do not, pass upon the question relating to the dismissal of the motion to vacate the award.
Clauses (a), (b), (c), (e), (f), and (g) of § 31 of the Workmen's Compensation Act, as amended Acts 1919 p. 158, § 8020o1 Burns' Supp. 1921, fix definitely the compensation to be awarded for certain specified permanent partial impairments of the body. Clause "h" provides that, in all other cases of permanent partial impairment, there shall be allowed compensation proportionate to the degree of such permanent partial impairment, in the discretion of the Industrial Board, not exceeding five hundred weeks. Clause (d) provides for compensation in cases of total permanent disability. Clause (i) provides for compensation for permanent disfigurement, and clauses (j), (k) and (l), for temporary disability, whether total or partial. The only provisions in the act for compensation are those just enumerated. There is no provision authorizing compensation for permanent partial disability or incapacity "to work and earn wages."
There is some confusion in our Workmen's Compensation Act (supra) in the use of the words "impairment" and "disability," and this confusion is carried into some of the opinions of this court. Strictly speaking, the word "disability" as used in our Workmen's Compensation Act, (supra) means inability to work, while "impairment" refers to the total or partial loss of the function of a member or of the body as a whole. Edward Iron Works v. Thompson (1923), 80 Ind.App. 577, 141 N.E. 530. The court of appeals of New York, speaking on this subject, said: "The word 'disability' in the law as we read it, therefore, means 'impairment of earning capacity' and 'loss of a member.'" Marhoffer v. Marhoffer (1917), 220 N.Y. 543, 116 N.E. 379. See, also, Moses v. National, etc., Co. (1921), 194 Iowa 819, 184 N.W. 746; Employers' Mut. Ins. Co. v. Industrial Comm. (1921), 70 Colo. 228, 199 P. 482.
This distinction must be kept in mind at all times in proceedings before the Industrial Board. In all cases arising under clause "h" of the act, there must be a finding that the injury has resulted in a permanent partial impairment. Whether it is necessary that the per cent. of such impairment be stated in the finding is not involved in this appeal, and we express no opinion on that question. In the instant case, if the board had found that the injury had "resulted in an 80 per cent. permanent impairment as a man" and stopped with that statement, without qualifying it by adding the words, "that is he is 80 per cent. permanently impaired to work and earn wages," the finding would have been sufficient to sustain the award. The board, by the use of the qualifying expression, clearly indicates that the award is based upon a diminution in earning power instead of upon a permanent partial impairment of a bodily function. Centlivre Beverage Co. v. Ross (1919), 71 Ind.App. 343, 125 N.E. 220, is not applicable to the statute as amended by Acts 1919 p. 158.
In Smith v. Brown (1924), 81 Ind.App. 667, 144 N.E. 849, this court, in speaking of an award based on a permanent partial impairment of a member, said: "* * * An award, based on such an injury, is made...
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