Spring Canyon Coal Co. v. Industrial Commission of Utah

• Decision Date: 12 April 1929
• Docket Number: 4749
• Citation: 74 Utah 103,277 P. 206
• Court: Utah Supreme Court
• Parties: SPRING CANYON COAL CO. v. INDUSTRIAL COMMISSION OF UTAH et al

277 P. 206

74 Utah 103

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

No. 4749

Supreme Court of Utah

April 12, 1929

Original proceeding by the Spring Canyon Coal Company employer and self-insurer, against the Industrial Commission and Jesus Aspatia, employee, to review an award of compensation.

AWARD ANNULLED, and cause remanded to Industrial Commission.

Cheney Jensen, Marr & Stephens, of Salt Lake City, for plaintiff.

George P. Parker, Atty. Gen., and F. A. Trottier, Asst. Atty. Gen for defendants.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

ELIAS HANSEN, J.

This is a proceeding to review an award of compensation granted to Jesus Aspatia by the Industrial Commission of Utah on account of injuries sustained by him in the course of his employment by the Spring Canyon Coal Company. In this opinion the Spring Canyon Coal Company will be referred to as the company, the Industrial Commission as the commission, and Jesus Aspatia as the applicant.

The company is a self-insurer. It does not deny liability for the injuries suffered by the applicant, but it attacks the authority of the commission, under the facts disclosed by the evidence, to grant the applicant compensation for life.

There is no dispute in the evidence concerning the facts. On August 3, 1925, the applicant was engaged in mining coal in one of the coal mines of the company in Carbon county, Utah. On that day two cars were sent in to where the applicant was at work so fast that they jumped off the track and knocked out the props that were holding the roof rock in place; thereupon the roof rock fell down upon the applicant, seriously injuring his back. In the terminology of the medical profession, he sustained a "fracture spinus process 2nd lumbar vertebra; fracture transverse process of 3rd lumbar vertebra and of body of same (compression fracture)."

The applicant was earning approximately $ 50 per week at the time of his injury; he was removed to a hospital immediately after the accident; he remained in the hospital about five months; after he left the hospital he wore a cast about his body. Under date of September 18, 1926, the commission, by resolution, granted the applicant permission to visit Mexico and remain there a year. The applicant went to Mexico and apparently remained about a year. Upon his return the cast was removed.

Dr. S. C. Baldwin, who attended the applicant, testified at the hearing before the commission. His testimony as to the nature and extent of applicant's injuries is substantially as follows: That the applicant's condition has become fixed; that he had a fractured third lumbar vertebra, which is located a little below the waist of the body; that the injury has left both legs partially paralyzed; one leg is more paralyzed than the other; he can walk with the aid of canes; he can raise his right leg slightly, but the other one he drags along on the ground; he often walks on the street with the aid of canes; it is doubtful if he can go up or down stairs; he was not injured above the third lumbar; his arms were not affected by the injury; his disability is not to exceed 75 per cent., because he still has the use of his body from the waist up, and the use of his arms; he also has the use of his legs to stand on and get around on with the aid of canes; he can do work such as shoe repairing or basket weaving where he can sit down if he knows how to do this class of work. The applicant says he is not in pain. He has lost the use of both legs industrially; that is to say, there is nothing he can do that requires the use of his legs, except to drag himself around. A person who has both legs amputated between the knee and the hip, so that he can wear artificial limbs, is in a better condition than the applicant for performing labor. The applicant cannot walk without the aid of canes, but he can arise from a sitting position in a chair and stand without the use of canes.

The applicant also testified before the commission. His testimony as to his physical condition generally corroborates the testimony of Dr. Baldwin. He further testified that he went to Mexico and returned alone. The conductor helped him get onto the train. He testified that he cannot take a bath without some one to help him; that he has always worked in a mine and has never worked at a job sitting down. When asked by a representative of the company if he would like to go back to work for the company "picking boney," if the company would arrange for him to sit down, he responded that he could not do that work because of stiffness of his back, and because he had to be with his family in Mexico; that he has a wife and six children in Mexico, the oldest of whom is 12 years and the youngest 2 years of age.

It is further made to appear that the company has paid the applicant the maximum compensation allowed by the Workmen's Compensation Law since the time of his injury. Upon substantially the foregoing evidence the commission ordered that the company pay the applicant the sum of $ 16 per week during the remainder of his life. The company here seeks to have the award vacated because, as claimed by it, the evidence does not support the award.

The parties to this proceeding are divided primarily upon the construction that should be given the Workmen's Compensation Law. The provisions involved are Laws Utah 1919, c. 63, §§ 3137, 3138, and 3139. They read as follows:

3137. "In case of temporary disability, the employee shall receive 60 per cent of his average weekly wages so long as such disability is total, not to exceed a maximum of $ 16.00 per week, and not less than a minimum of $ 7.00 per week; but in no case to continue for more than six years from the date of injury, or to exceed $ 5,000.00."

3138. "Where the injury causes partial disability for work, the employee shall receive, during such disability and for a period of not to exceed six years beginning on the fourth day of disability, a weekly compensation equal to 60 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 $ 16.00 a week. In no case shall the weekly payments continue after the disability ends, or death of the injured person, 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 60 per cent of the average weekly wages, but not more than $ 16.00 to be paid weekly for the periods stated against such injuries respectively, and shall be in addition to the compensation hereinbefore provided for temporary total disability, to wit:

"For loss of: * * *"

Then follows a long list of specific amounts to be paid for an arm or a part thereof, a hand or a part thereof, a thumb or a part thereof, a finger or a part thereof, a toe or a part thereof, for one eye by enucleation, an eye by total blindness. Included within the schedule is the following:

"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."

After completing the list, this section continues:

"Any other disfigurement, or the loss of bodily function not otherwise provided for herein, such period of compensation as the commission shall deem equitable and in proportion to compensation in other cases not exceeding two hundred weeks.

"The amounts specified in this section are all subject to the limitation as to the maximum weekly amount payable as hereinbefore specified in this Section, and in no event shall more than a total of $ 5,000.00 be required to be paid."

3139. "In cases of permanent total disability, the award shall be 60 per cent of the average weekly wages for five years from date of injury, and thereafter 45 per cent of such average weekly wages until the death of such person so totally disabled, but not to exceed a maximum of $ 16.00 per week and not less than a minimum of $ 7.00 per week. The loss of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof, shall constitute total and permanent disability, to be compensated according to the provisions of this Section."

It is the company's contention that the injury which the applicant received is compensable under the provisions of section 3138 and not section 3139. It is the applicant's contention that his injuries bring him within the provisions of section 3139, and that he is entitled to the compensation therein provided for.

The commission took the view that the words "loss of both legs" as used in section 3139 should be construed to include and be equivalent to the loss of the use of both legs; that the applicant had lost the use of both legs, and therefore he was entitled to an award of compensation for permanent total disability. The commission based its conclusion upon the language used by this court in the case of the Aetna Life Insurance Co. v Industrial Commission, 64 Utah 230, 228 P. 1081. In that case the stipulated facts showed that Edward Rogers sustained a fracture of the neck of the right femur while he was working for the Ogden Pressed Brick & Tile Company. No other part of his body was injured. As a result of his injury he was confined in bed for approximately 4 weeks, after which he moved about by the use of crutches. The leg was not painful except when he bumped it into something or when he put his weight on it. At the time of the hearing before the commission the condition of Rogers' leg had...