Schmutzler v. Workmen's Compensation Bureau

• Decision Date: 31 October 1951
• Docket Number: No. 7218,7218
• Citation: 49 N.W.2d 649,78 N.D. 377
• Parties: SCHMUTZLER v. WORKMEN'S COMPENSATION BUREAU.
• Court: North Dakota Supreme Court

Page 649

49 N.W.2d 649

78 N.D. 377

SCHMUTZLER v. WORKMEN'S COMPENSATION BUREAU.

No. 7218.

Supreme Court of North Dakota.

Oct. 31, 1951.

Syllabus by the Court.

1. The general presumption obtains that the codifiers did not intend to change the law as it formerly existed. State ex rel. Kositzky v. Prater,48 N.D. 1240, 189 N.W. 334.

2. The practical, contemporaneous construction placed by the officers charged with its enforcement upon a statute prior to codification and continued thereafter will be given weight by the courts in determining the meaning of that statute.

3. The North Dakota Workmen's Compensation Act is considered and it is held that under Chapter 337, S.L.1945, the compensation allowed for specific injuries was subject to the same limitations as provided for permanent, partial disability.

E. T. Christianson, Atty. Gen., P. B. Garberg and Paul M. Sand, Asst. Atty. Gen., for appellant.

Ella Van Berkom, Minot, for respondent.

GRIMSON, Judge.

On August 15, 1947, Lawrence Schmutzler, the plaintiff herein was working as a salesman for Sears, Roebuck & Company at Minot, North Dakota. That company had then in all things complied with the provisions of the Workmen's Compensation Act. In the course of his employment that day the suffered an injury to his right eye which resulted in the removal of the eyeball on September 24, 1947. At the time of the injury plaintiff was receiving an average wage of $85 per week. On November 24, 1947, the Workmen's Compensation Bureau awarded plaintiff compensation for temporary, total disability, hospital and medical expenses and emergency allowances as provided by the Workmen's Compensation Act. On March 8, 1948, the Bureau, applying Sec. 65-0511, NDRC 1943, as limitation upon Sec. 65-0513, made a supplemental award to the plaintiff of $2,000 'for loss of right eye, permanent, partial disability' being compensation for a period of 100 weeks from October 26, 1947, to September 24, 1949 at $20 per week. A rehearing was had before the Bureau. The prior award of $2,000, was confirmed. An appeal was taken from that award to the District Court of Ward County. The District Court found that Sec. 65-0513, NDRC 1943 as amended by Chapter 337, S.L. 1945 was not limited by provisions of Sec. 65-0511, as amended by said chapter and that the plaintiff was entitled for the loss of his eye to compensation for 100 weeks at the rate of 66 2/3 percent of his weekly wages of $85 amounting to $5,667 as provided by Sec. 65-0513 without consideration of the limitation provided by Sec. 65-0511 for permanent, partial disability. A stipulation had been entered into that the $2,000 might be paid without any prejudice to the rights of the plaintiff which was done and credited upon the judgment. From that judgment this appeal is taken.

The question at issue in this lawsuit is whether the loss of an eye shall be construed under the Workmen's Compensation Act as permanent, partial disability and subject to the limitations provided therefor. To determine that, it is necessary to give consideration to the Workmen's Compensation Act as it read at the time of this accident as well as the law before codification and the interpretation given that Act by the Workmen's Compensation Bureau in the administration of the provisions thereof governing the matter here at issue.

The North Dakota Workmen's Compensation Act was enacted as Chapter 162 of the Session Laws of 1919. The provisions for compensation from the North Dakota Workmen's Compensation Fund to any employee subject to the Act for injuries arising in the course of his employment were covered in Sec. 3 of that chapter. Subsection A of said Sec. 3 provided for furnishing medical, surgical and hospital services. Subsection B provided that no other payments were allowed unless the period of disability extended beyond seven days, in which case compensation should be paid from the date of injury. Subsection C provided for payments of a weekly compensation equal to 66 2/3 percent of the weekly wages of the disabled employee for total disability. Subsection D provided for temporary, partial disability of a weekly compensation equal to 66 2/3 percent of the disabled employee's loss in earning capacity. Subsection E provided for payments for permanent, partial disability of 66 2/3 percent of the employee's weekly wages for a number of weeks proportional to the percent of disability beginning with 5.2 weeks for a 1 percent disability and up to 468 weeks for a 90 percent disability. The final paragraph of Subsection E provided that 'The bureau shall immediately fix and file its schedule of specific benefits to be allowed for specific injuries.' Subsection F provided that the weekly compensation for either total or partial disability should not exceed $20. A minimum compensation of $6 per week was provided for total disability.

The question immediately arises whether the legislative intent was to limit the specific benefits for specific injuries to a maximum of $20 per week. Such injuries are not specifically mentioned in Subsection F which provides the limitation. Generally in the insurance field specific injuries constitute a separate and distinct classification. In that classification is commonly placed the loss of a member of the body on the theory that such a loss while it may not have an effect in some cases on the earning capacity of the injured person it is always a distinct detriment and handicap from which such person would suffer in all after life. On the other hand in this instance the provision for specific benefits for specific injuries is placed in the subsection (E) providing the allowance for permanent, partial disability and is followed by the subsection (F) providing the minimum and maximum payments for both total and partial disabilities. The interpretation given the section by the Workmen's Compensation Bureau, the body which administers the Workmen's Compensation Act, was from the beginning that specific injuries came under the classification of permanent, partial disability and that the limitations in subsection F applied to the specific benefits for the specific injuries.

In 1927 subsection E of Sec. 3, Chapter 162, S.L. 1919 was amended, Chapter 286, S.L. 1927. The first part of Subsection E was reenacted making only a small change in the number of weeks allowed for the percentage of disability. For a 1 percent disability five weeks were allowed and for a 90 percent disability 450 weeks. The last paragraph of Subsection E, giving the Bureau the authority to fix specific benefits for specific injuries, was omitted and instead a complete schedule of specific benefits to be allowed for specific injuries was enacted. That schedule covered the loss of members of the body. It fixed the time for which compensation should be paid for such losses and provided a maximum and minimum payment. A computation of those payments shows that in each instance the minimum compensation was based on a minimum of $6 per week for the time allowed and the maximum was based upon a compensation of $20 per week for the time allowed. That enactment...