Reay v. Elmira Coal Co.

• Court: Kansas Court of Appeals
• Writing for the Court: BLAND, J.
• Citation: Reay v. Elmira Coal Co., 34 S.W.2d 1015, 225 Mo.App. 102 (Kan. App. 1930)
• Decision Date: 01 December 1930
• Parties: JOHN REAY, APPELLANT, v. ELMIRA COAL COMPANY, RESPONDENT

34 S.W.2d 1015

225 Mo.App. 102

JOHN REAY, APPELLANT, v. ELMIRA COAL COMPANY, RESPONDENT

Court of Appeals of Missouri, Kansas City

December 1, 1930

Appeal from Circuit Court of Ray County.--Hon. Ralph Hughes, Judge.

AFFIRMED.

Judgment affirmed.

Mosman Rogers & Buzard and Donald E. Black for appellant.

Edwin H. Garrett for respondent.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND J.

This is an action under the Workmen's Compensation Act. Claimant, John Reay, was injured on February 22, 1927, while in the employ of the defendant. He sustained accidental injuries by reason of a large rock falling from defendant's mine roof and striking him across the head, shoulders and back, resulting in the fracture of his spinal column. On December 10, 1929, the commission made a final award to the effect that claimant received an injury to his back on February 22, 1927, while in the employ of defendant; that said injury arose out of and in the course of the claimant's employment; that his weekly wages amounted to $ 30.77; that claimant had sustained 96.8 weeks of temporary total disability and an injury to his back resulting in 30 per cent permanent partial disability. The commission awarded claimant the sum of $ 813.30 for medical aid. It also awarded him $ 20 per week for 120 weeks (or 30 per cent of 400 weeks) for permanent partial disability totaling $ 2400 subject, however, to a debit of $ 1936.68. The last mentioned sum was compensation for 96.8 weeks temporary total disability theretofore paid to claimant by defendant. After the award for the temporary total disability had been deducted from the amount of the award for the permanent partial disability there remained the sum of $ 463.32. This last mentioned sum the commission awarded to claimant as being the amount due and owing him as unpaid compensation.

Claimant appealed to the circuit court of Ray county where the award of the Compensation Commission was affirmed. Claimant has appealed the case here.

Claimant has no complaint to make relative to the findings of fact as made by the commission. His complaint is that while the commission found that he had suffered 96.8 weeks temporary total disability and also 30 per cent permanent partial disability it awarded him compensation on the basis of permanent partial disability only and refused to allow him compensation for the period of temporary total disability.

Whether claimant is entitled to an allowance for temporary total disability in addition to permanent partial disability depends upon the proper construction of section 17 (a) of the Workmen's Compensation Act (see Laws 1927, p. 499). Section 13 of the Act provides for medical aid, section 15 for temporary total disability, section 16 for temporary partial disability and section 17 (a) for permanent partial disability. Section 17 (a) reads as follows:

"For permanent partial disability, in lieu of all other compensation except that provided under section 13 of this act, the employer shall pay to the employee 66 2/3 per cent. of his average earnings as computed in accordance with section 22, but not less than six dollars nor more than twenty dollars per week, for the periods hereinafter provided."

Then follows a list of 46 specific members of the human body with the number of weeks that the loss of each should be compensated for. Then immediately follows this provision:

"For permanent injuries other than those specified, the said compensation shall be paid for such periods as are proportionate to the relation which the other injury bears to the injuries above specified, but no such period shall exceed four hundred weeks."

The decision of the case depends upon the proper construction of the "in lieu" clause of section 17 (a). Defendant contends that compensation under section 17 (a) is in lieu of all other compensation, including temporary total disability (as provided in section 15) except medical aid (as provided in section 13), whether the permanent partial disability mentioned in section 17 (a) is ascertainable at the time of the receipt of the injury or otherwise, and that plaintiff is attempting to have us, by way of attempted judicial legislation, amend the clause in question by having it read "in lieu of all other compensation for permanent partial disability," whereas the part in italics does not appear in the clause in controversy.

Plaintiff repudiates the suggestion that he is attempting to have the statute amended in any such wise (but substantially admits that were the statute to be construed as defendant says plaintiff is attempting to have it, it would be, in effect, a judicial amendment), and says, to use his own words, that his "position is this, that at such time during the period of temporary total disability, medical and surgical opinion, upon a fair examination, reaches the conclusion that it is not reasonable to expect a complete recovery or to anticipate any further lessening of the impairment, then, for the first time, can it be said that there exists a permanent partial disability. At that time a payment for such disability is then in lieu of all other compensation; . . . that when a permanent partial disability becomes ascertainable, then the compensation payable for such disability is in lieu of all other compensation. But what of the time between the date of the injury and the time that the permanent partial disability is determined and established? Is compensation to be denied for this period?" Plaintiff answers his query in the negative.

Claimant says that temporary total disability and permanent partial disability are two distinct and separate disabilities; that, consequently, the compensation payable under each disability is limited to such disability or classification, payment under one classification or disability not being payment for the other.

It thus will be seen that the controversy between claimant and defendant is as to what point in the history of the injury the "in lieu" clause terminates the running of the temporary total disability. Claimant claiming that it ends with the ascertainment of the permanent partial disability, which may be as soon as the accident occurs, and defendant that it cuts off all compensation for any other class of disability regardless of the time of the ascertainment of the permanent partial disability.

For the purpose of a decision of this case we will accept claimant's construction of the finding of the commission, that is, that on the date of the award claimant had sustained temporary total disability for 96.8 weeks and that on said date, that is at the conclusion of his period of permanent partial disability, he had sustained injuries to his back resulting in 30 per cent permanent partial disability. There is some controversy between the parties as to of what date the commission found that said permanent partial disability had been sustained or commenced, but for the purpose of the case we will adopt claimant's view of the matter.

While claimant is not attempting to have us read into the "in lieu" clause of section 17 (a) the words that defendant says he is attempting judicially to have inserted therein, we think that plaintiff's contention would require us to read into the statute a clause that would be as much of a radical judicial amendment of the clause as were the additional words inserted which defendant claims that plaintiff would have us insert. Under plaintiff's construction of the section it would read as follows: "For permanent partial disability in lieu of all other compensation after such disability begins," etc. (The part not in the clause appearing in italics).

By the express words of section 17 (a) compensation for the injuries mentioned therein is "in lieu of all other compensation". If claimant can recover compensation under both section 15 and 17 (a) then his compensation under the latter section is not "in lieu of all other compensation." We think there is no doubt but that the language in the "in lieu" clause appearing in section 17 (a) is clear, plain, distinct and unambiguous. When the Legislature plainly and distinctly declares its intention the act is not open to construction and excludes interpretations. [Span v. Jackson, Walker Coal & Mining Co., 16 S.W.2d 190, 196; Sleyster v. Eugene Donzelot & Son, 25 S.W.2d 147; Holmes v. Mack International Truck Co., 28 S.W.2d 446, 447; Stoll v. Frank Adam Elec. Co., 240 S.W. 245, 247.]

However, plaintiff says that such interpretation as we have given the act will "result in the gravest injustice to the employee;" that

"When a loss or impairment is preceded by a long incapacity while efforts are made to care for and heal the injury, the injured employee in a great many instances has suffered far more than the amount to be received for the mere loss or impairment allowed him under section 17 (a).

"Under the commission's ruling, if the payment for the temporary total disability and temporary partial disability preceding the loss or impairment exceeds that provided for permanent partial loss or impairment, the employee must return the excess and go without compensation for the larger part of his loss."

What claimant says may be so. On the other hand the construction that claimant would have us give the clause in controversy would lead to incongruities of the worst kind. For cases might easily arise where two employees sustained similar injuries in the same accident and the extent of the injury to the one might be immediately ascertainable while that to the other could not be ascertained until some future day. Under such circumstances the first mentioned employee would receive less than the second. Cases might be imagined where the disparity in compensation would be marked while...