Schwartz v. Mount Vernon-Woodberry Mills

• Decision Date: 22 March 1945
• Docket Number: 15725.
• Parties: SCHWARTZ v. MOUNT VERNON-WOODBERRY MILLS, Inc.
• Court: South Carolina Supreme Court

33 S.E.2d 517

206 S.C. 227

SCHWARTZ v. MOUNT VERNON-WOODBERRY MILLS, Inc.

No. 15725.

Supreme Court of South Carolina

March 22, 1945

Henry H. Edens and Edith Pratt Breeden, both of Columbia, for appellant.

McKay & McKay, of Columbia, for respondent.

STUKES Justice.

In this workmen's compensation case both employee and employer appealed from the award of the Industrial Commission and the Circuit Court overruled that of the employee and favorably acted upon that of the employer by undertaking to reduce the award for disfigurement from $2,000 to $500. Thereupon the claimant prosecuted this appeal from the judgment of the court, wherein the employer is altogether respondent.

After long experience in textile work, claimant entered the night employ of respondent and on his second shift suffered a traumatic injury to his left eye which had the unusual effect of obstructing the exist tear duct so that instead of its natural discharge of necessary fluid in and about the eye, tears well up in the gland until it overflows meanwhile dimming the normal vision of the eye. The accumulated tears are then discharged over claimant's check and the whole process starts over again. The condition appears to be permanent. Before this compensable accident and entirely independent of it, claimant had (and has) cataracts in both eyes, whereby the vision in the injured eye was reduced to twenty per cent of normal and in the right uninjured eye, to the extent that the vision was (and is) impaired ninety per cent.

The Commission found that half of the pre-existing vision (equal to ten per cent of normal) in the injured eye has been lost as the result of the accident and pursuant to section 7035-34 of the 1942 Code awarded him the specific compensation thereby provided, following the language of the statute, subsec. (t): 'The compensation for partial loss of or for partial loss of use of a member or for partial loss of vision of an eye shall be such proportion of the payments above provided for total loss as such partial loss bears to total loss.'

Claimant's zealous counsel (one, a fair Portia!) have argued that since the disability found is permanent and to the extent of fifty per cent of former vision the award should have been for fifty per cent of the loss of an eye of normal vision, and they say in attempted substantiation of this claim that had the eye been a normal one, fifty per cent disability would have resulted from the accident, but there is found in the record no justification for this assumption of fact. The express provision of section 7035-36 is interesting in this connection, to the effect that an employee who had a prior permanent, partial disability and is afterward injured by a compensable accident (such as specified in sec. 7035-34), 'he shall be entitled to compensation only for the degree of disability which would have resulted from the later (COMPENSABLE) ACCIDENT IF THE EARLIER DISability or injury had not existed.'

The transcript of record for appeal contains the required statement, an additional agreed statement of facts and the Hearing Commissioner's findings and award (which it is said were affirmed and adopted by the Industrial Commission), together with the decree of the Circuit Court upon appeal thereto. Of course, we are confined in our consideration to the facts contained in these documents; and since the testimony was not included in the appeal record, we can entertain no question relating to the propriety of the factual findings of the Commission. Such are binding upon the courts if founded upon substantial, supporting evidence; and the presence of the latter is presumed in view of the stated contents of the record before us. Sec. 7035-63.

Appellant's interesting argument is based, as said above, upon the premise that the accident would have resulted in fifty per cent impairment of a normal eye, but no such finding is apparent in the record. In the 'statement' in the agreed transcript for appeal it is said that the Commission found that appellant 'sustained a ten per cent permanent disability to his left eye, being one-half of the 20/200 vision of that eye prior to claimant's injury.' The concluding words of the additional 'Agreed Statement of Facts' are as follows: 'The welling of tears because of the obstructed duct reduced such vision as claimant had in his left eye by half.' And earlier in this factual statement it was said that the vision in that eye had already been reduced by cataract to 20/200. Clearer even than these quotations is the following finding of fact by the Hearing Commissioner: '3. It is found as a fact that as the result of said accident, the claimant has sustained a 10 per cent permanent disability to his left eye, the 10 per cent being one-half of the 20/200 vision had by the claimant at the time of his entry of employment with the defendant * * *.'

These excerpts from the record leave no room for argument other than that the Commission has found the facts against claimant's contentions in this respect; and we are bound by them, as has been said. This phase of the claimant's appeal must be, and is, overruled, we think without necessity for extended discussion or the citation of authority over than the Compensation Law itself, to the several pertinent provisions of which we have referred.

The remaining branch of the appeal, however, presents difficulty. The persistent and permanent affliction of appellant which resulted from the accident has been described. The Commission found that since the accident the claimant is practically blind (also called 'industrially blind'), cannot do ordinary work, is unable to read at all and, quoting, 'now walks with a halting, shuffling gait, feeling his way along with head bowed and arms outstretched when approaching steps or buildings. His left eye constantly waters, overflows or is on the verge of overflowing. His appearance is extremely unsightly and pathetic.' And in the findings of fact of the Commission is the following: '5. It is found as a fact that the claimant has a serious facial disfigurement extremely noticeable to view and paralyzing to the prospects of the claimant's future employment, such disfigurement entitling the claimant to the sum of Two Thousand ($2,000.00) Dollars.'

The Circuit Court, upon appeal to it, found and ordered as follows:

'This Court concludes that under the evidence before it, including its opportunity to have viewed the claimant, that the award made by the Commission of $2,000.00 is legally excessive, inequitable and to allow this award to stand in the sum awarded would work an injustice. However, as heretofore stated, the claimant is entitled to some compensation for his facial disfigurement, and in view of all of the evidence in the case this Court is satisfied that the sum of $500.00 for facial disfigurement would be an equitable and just sum.

'It is therefore,

'Ordered, Adjudged and Decreed:

* * *

* * *

'(2) That the award of $2,000.00 for facial disfigurement be and the same is hereby reduced to the sum of $500.00.'

Appropriate exceptions by claimant in his appeal to this court challenge the propriety of the foregoing judgment of the lower court in view of the factual findings in the record and the action of the Industrial Commission thereon.

It is of the utmost significance that the learned trial judge cited not one decision of any court in which an award of workmen's compensation for disfigurement was reduced by the court; the briefs of counsel are similarly barren of any such precedent; and we know of none. Contrary trend is illustrated by the following: Arrow Gasoline Co. v. Holloway, 122 Okl. 257, 254 P. 98; Noel v. Cottrell, 156 Okl. 161, 10 P.2d 254; Red Rover Copper Co. v. Industrial Commission, 58 Ariz. 203, 118 P.2d 1102, 137 A.L.R. 740; State ex rel. Butram v. Industrial Commission, 124 Ohio St. 589, 180 N.E. 61; and Sinnes v. Daggett, 80 Wash. 673, 142 P. 5.

An illuminating discussion is found in the opinion by Mr. Justice Cardozo (who afterward made a highly enviable record on the Supreme Court of the United States) in Sweeting v. American Knife Co., 226 N.Y. 199, 123 N.E. 82, 83, from which the following is quoted:

'The commission has found that there has been serious facial disfigurement, and that an award of $2,500 is fair and equitable. Those are the ultimate facts to be embodied in the decision. The capacities and opportunities of the individual claimant have at the utmost an evidential value. It is true that the commission has a wide discretion, and in fixing a fair and equitable compensation it may inquire into all the circumstances that will help to guide its judgment. But those circumstances, however pertinent as evidence, have no place in the findings. The mutilated face, like the mutilated arm or leg, is the capital fact upon which liability depends. The injury alone, without other proof of loss, makes out the claimant's handicap in the struggle for existence. Given the fact of injury, the commission is to assess the damages. The presumption is that all relevant circumstances have been weighed in the assessment. These findings, therefore, would be adequate even if the commission were a court. But in truth it is not a court, and the niceties of code practice have no place in its procedure. Its decision states the facts essential to liability. No more should be exacted. * * *

'Nor does the statute become invalid because the commission has some discretion in fixing the amount. The Legislature may provide for such a method of 'adjustment, determination and settlement' as it will. There is reason for...