Spring Canyon Coal Co. v. Industrial Commission of Utah

• Decision Date: 12 November 1920
• Docket Number: 3505
• Citation: 57 Utah 208,193 P. 821
• Court: Utah Supreme Court
• Parties: SPRING CANYON COAL CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

193 P. 821

57 Utah 208

SPRING CANYON COAL CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

No. 3505

Supreme Court of Utah

November 12, 1920

Action by the Spring Canyon Coal Company, the employer, and others against the Industrial Commission of Utah to review its award of compensation under the Industrial Act in favor of Irvin Wimber, the employe.

The authorities cited in plaintiff's brief were: In re Maranovitch, 65 Ind.App. 489, 117 N.E. 530; Stefan v. Red Star Mill & Elev. Co., 106 Kan. 369, 187 P. 861; Kramer v. Sargent & Co., 93 Conn. 26, 104 A. 490; Hull v. U.S. Fidelity & Guaranty Co., 102 Neb. 246 166 N.W. 628; In re Denton, 65 Ind.App. 426, 117 N.E. 520; Morck v. White, 41 Utah 480, 126 P. 330.

The authorities cited in defendant's brief were Marhoffer v. Marhoffer, 220 N.Y. 543, 116 N.E. 379; Limron v. Blair, 181 Mich. 76, 147 N.W. 546, 5 N. C C. A. 866; Nitram Co. v. Creagh, 84 N.J.L. 243, 86 A. 435, 3 N. C. C. A. 587; George W. Helme Co. v. Middlesex Common Pleas, 84 N.J.L. 531, 87 A. 72, 4 N. C. C. A. 674; Stubbs v. Industrial Board, 280 Ill. 208, 117 N.E. 419; Wells v. Industrial Commission, 285 Ill. 647, 121 N.E. 256; Industrial Coal & Mine Co. v. Industrial Commission, 293 Ill. 524, 127 N.E. 703; Franko v. Wm. Schallhorn & Co., 93 Conn. 13, 104 A. 485; Kramer v. Sargent & Co., 93 Conn. 26, 104 A. 490; Industrial Commission of Colorado v. Ocean Accident & Guarantee Corporation (Colo.) 180 P. 568; Slago v. Industrial Commission, 293 Ill. 271, 127 N.E. 751; Holt v. Wood Bros., 5 N. C. C. A. 870; Bonaldi v. Hamburg American Line, 36 N. J. Law J. 302; Loughman v. Home Brewing Co., 36 N. J. Law J. 113.

AWARD AS MADE ORDERED SET ASIDE, and defendant directed to proceed in accordance with the opinion.

De Vine, Stine & Gwilliam, of Ogden, for plaintiff.

Dan B. Shields, Atty. Gen., and Jas. H. Wolfe, Asst. Atty. Gen., for defendant.

THURMAN, J. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

There is no controversy in this case concerning the facts. On October 8, 1918, one Irvin Wimber, while in the employ of the plaintiff coal company, was severely injured in his left leg resulting in the complete loss thereof. Two days afterwards the limb was amputated at the knee joint, and a period of total temporary disability ensued from the date of the accident to and including November 15, 1919.

The applicant filed his petition under the Industrial Act for compensation. The commission found the above facts, and made its award for the sum of $ 12 per week from October 19, 1918, to and including November 15, 1919, in the sum of $ 674.38 on account of temporary total disability, and in addition thereto awarded compensation for the loss of the limb for a period of 150 weeks at $ 12 per week, not to exceed the sum of $ 1,800. Other allowances were made, but they are not involved in the question presented for our consideration.

This is an action to review the proceeding. But one question is involved, Did the commission exceed its jurisdiction in allowing compensation for the loss of the leg and in addition thereto compensation for temporary total disability? Plaintiffs strenuously contend that the law as it existed at the date of the accident permitted only compensation for the loss of the leg, as specifically provided in Comp. Laws Utah 1917, § 3138. Defendant contends that compensation should also be allowed as provided in section 3137. A solution of the question can best be determined by quoting in full the sections referred to and interpreting their meaning. We have italicized such portions of the sections as we deem of special significance in view of the argument and matter to be determined.

3137. "In case of temporary disability, the employe shall receive 55 per cent. of his average weekly wages so long as such disability is total, not to exceed a maximum of $ 12 per week, and not less than a minimum of $ 7 per week; but in no case to continue for fore than six years from the date of the injury, or to exceed $ 4,500."

3138. "Where the injury causes partial disability for work, the employe shall receive, during such disability and for a period of not to exceed six years beginning on the eleventh day of disability, a weekly compensation equal to 55 per cent. of the difference between his average weekly wages before the accident and the weekly wages he is able to earn thereafter, but not more than $ 12 a week. In no case shall the weekly payments continue after the disability ends, and in case the partial disability begins after a period of total disability the period of total disability shall be deducted from such total period of compensation. In the case of the following injuries the compensation shall be 55 per cent. of the average weekly wages, but not more than $ 12 to be paid weekly for the periods stated against such injuries respectively, to wit:

"For loss of:

One arm at or near shoulder

200

weeks

One arm at the elbow

180

weeks

One arm between the wrist and the elbow

160

weeks

One hand

150

weeks

One thumb and the metacarpal bone thereof

60

weeks

One thumb at the proximal joint

30

weeks

One thumb at the second distal joint

20

weeks

One first finger and the metacarpal bone thereof

30

weeks

One first finger at the proximal joint

20

weeks

One first finger at the second joint

15

weeks

One first finger at the distal joint

10

weeks

One second finger and the metacarpal bone thereof

30

weeks

One second finger at the proximal joint

15

weeks

One second finger at the second joint

10

weeks

One second finger at the distal joint

5

weeks

One third finger at the metacarpal bone thereof

20

weeks

One third finger at the proximal joint

12

weeks

One third finger at the second joint

8

weeks

One third finger at the distal joint

4

weeks

One fourth finger and the metacarpal bone thereof

12

weeks

One fourth finger at the proximal joint

9

weeks

One fourth finger at the second joint

6

weeks

One fourth finger at the second joint

6

weeks

One fourth finger at the distal joint

3

weeks

One leg at or so near the hip joint as to preclude the

use of an artificial limb

180

weeks

One leg at or above the knee where stump remains

sufficient to permit the use of an artificial limb

150

weeks

One leg between the knee and ankle

140

weeks

One foot at the ankle

125

weeks

One great toe with the metatarsal bone thereof

30

weeks

One great toe at the proximal joint

15

weeks

One great toe at the second joint

10

weeks

One toe other than the great toe with the metatarsal bone

thereof

12

weeks

One toe other than the great toe at proximal joint

6

weeks

One toe other than the great toe at second or distal joint

3

weeks

One eye by enucleation

120

weeks

Total blindness of one eye

100

weeks

"The amounts specified in this section are all subject to the limitation as to the maximum weekly amount payable as herein before specified in this section, and in no event shall more than a total of $ 4,500 be required to be paid."

It will be noted that the first sentence of section 3138, down to and including the word "compensation" relates to partial disability on account of injuries not resulting in the loss of a member, and allows compensation therefor at $ 12 per week while the disability continues, not exceeding six years, while the remainder of the section relates to permanent partial disability on account of the loss of a member and allows as compensation therefor a fixed and definite amount. As to these amounts the commission has no discretion; when the loss of the member is ascertained the law specifically determines the compensation. As to injuries of this character the section last quoted reads:

"In the case of the following injuries the compensation shall be 55 per cent. of the average weekly wages, but not more than $ 12 to be paid weekly for the periods stated against such injuries respectively, to wit."

Then follows an enumeration of specific injuries, consisting in each case of the loss of a member, and the number of weeks for which the person injured is entitled to compensation.

The meaning of the language last quoted, together with the enumeration following, standing alone, seems to the writer to be plain and unambiguous. It means that for the injuries specified a definite sum is allowed, payable in weekly installments for a fixed and definite period. As applicable to the case at bar, the section provides that for the loss of a leg at or above the knee where the stump remains sufficient to permit the use of an artificial limb the compensation shall be $ 12 per week for a period of 150 weeks.

The Attorney General, appearing for the defendant, ingeniously contends that, inasmuch as the latter part of the section contemplates that the total sum of $ 4,500 may be paid in some cases while the maximum allowed for the loss of a member, as in the case of an arm at or near the shoulder, is only $ 2,400, therefore it must have been contemplated by the Legislature that other compensation than that specified in the schedule might be allowed not exceeding the sum of $ 4,500. Just why the amount "$ 4,500" was used is difficult to explain, in view of the other provisions of the law. The amount is not referable to any other provision of the statute relating to compensation. It is certainly not referable to any maximum appearing in the schedule, for, as contended by the Attorney General, the maximum therein stated is $ 2,400. It is not referable to the class of injuries covered by the first part of section 3138 for the maximum therein stated is $ 12 per week for a period of not exceeding six years, which, when calculated, is shown to be only $ 3,744. The same is true of section 3137. The maximum in that section for a period of six years is exactly the same as...