Outlaw v. Johnson Service Co., 19086
Court | United States State Supreme Court of South Carolina |
Citation | 176 S.E.2d 152,254 S.C. 486 |
Docket Number | No. 19086,19086 |
Parties | Dempsey E. OUTLAW, Appellant, v. JOHNSON SERVICE COMPANY and The Travelers Insurance Company, Respondents. |
Decision Date | 24 July 1970 |
Heyward E. McDonald, of Rogers, McDonald, McKenzie & Fuller, Columbia, for appellant.
Hoover C. Blanton, of Whaley, McCutchen, Blanton & Richardson, Columbia, for respondents.
In this workmen's compensation case the claimant, an electician-employee, sustained a back injury in a compensable accident on November 16, 1967. His physician testified to a rating of 30% Permanent, general, overall bodily disability. Based on such rating the South Carolina Industrial Commission awarded him 'compensation at the rate of Thirty-two and 40/100 Dollars per week for a period of two hundred ninety (290) weeks * * * representing a thirty percent (30%) general bodily disability.' Upon appeal to the Richland County Court of Common Pleas the award was set aside. From such order the claimant has appealed.
There is no dispute as to the facts. The claimant is an excellent electrician who has worked for Johnson Service Company for eight years. On November 16, 1967 he sustained an admittedly compensable injury to his back, and was paid ten weeks benefits. Thereafter he returned to work with the same employer and at the time of the hearing was continuing to work on a regular basis, making the same or more money than he made prior to the injury. It is conceded that he is unable to do the more heavy and more strenuous work connected with his employment, but he is doing the same type of work which he was performing prior to his injury. His employer is satisfied with his performance. It is a fair summary to say that he is on the same job for the same pay, but is not physically able to do some of the tasks he performed prior to the accident.
The question for determination by this court is: Does the receipt of post-injury wages equal to pre-injury wages bar a finding of disability as contemplated by the Workmen's Compensation Law where the employee is continuing to work on the same job earning the same or better pay?
At the time of the trial of the case before the single industrial commissioner this court had not decided the case of Owens v. Herndon, 252 S.C. 166, 165 S.E.2d 696 (1969), cited by the lower court. Counsel for the appellant has requested, and been granted, under our rule, permission to argue against that decision.
The rights and liabilities of employees and employers are established by the terms of the Workmen's Compensation Act. The legislature determines what benefits should be conferred and what obligations imposed. Compensation is provided for disability only. The claimant is obviously earning the wages he receives. Section 72--10 of the Code defines disability as: 'The term 'disability' means 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.' In case of partial disability the employee receives 'a weekly compensation equal to sixty percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, * * *.' Section 72--152.
In Owens this court said:
We have re-examined Owens and conclude that the statute requires that we adhere to the ruling made therein. We agree with the circuit judge when he said:
We think that the appellant takes undue comfort in the reasoning of the dissenting opinion in Owens. In that case the facts are more favorable to the claimant than here. Even under the more favorable factual situation, the court was of the opinion that compensation was not warranted under the statute. As pointed out by Mr. Justice Bussey in that dissent, there was evidence that the employee was refused employment because of his back condition and his doctor testified that the claimant had days when he was totally disabled. It was also inferable from the testimony that the post-injury wages were influenced by a change of jobs and by an inflationary trend. Those elements are absent here. The ruling today, because of the facts, is not inconsistent with the dissenting opinion in Owens. The claimant has not suffered a diminution of earning capacity as contemplated by the statute.
In Walker v. City Motor Car Company, 232 S.C. 392, 102 S.E.2d 373 (1958), this court said:
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