Stanley v. Hyman-Michaels Co.
| Decision Date | 11 November 1942 |
| Docket Number | 104. |
| Citation | 22 S.E.2d 570,222 N.C. 257 |
| Parties | STANLEY v. HYMAN-MICHAELS CO. et al. |
| Court | North Carolina Supreme Court |
Plaintiff employee, brings this action under the provisions of the Workmen's Compensation Act, against the employer and insurance carrier, to obtain compensation for injuries.
The Industrial Commission, in addition to jurisdictional determinations, made the following pertinent findings of fact:
1. The plaintiff, as the result of his injury by accident on December 21, 1939, has sustained the complete loss of his left leg, and 50 per cent permanent disability or loss of the use of his right foot, which said disability includes the loss of his great toe and three other toes on his right foot.
2. That as a result of said accident the plaintiff has been totally disabled for the period from December 21, 1939, to the date of the hearing; namely, March 25, 1941, but that on said date of March 25, 1941, his total disability ended.
3. The plaintiff, as the result of his injury by accident on December 21, 1939, has no disfiguring scars or blemishes on his body, except normal operative scars occasioned by the amputation of his left leg and the operation on his right foot.
4. That the plaintiff, as the result of his injuries referred to herein, has no permanent total disability as said term is defined by the provisions of the N. C. Workmen's Compensation Act.
Compensation for disfigurement was denied.
Compensation was awarded as provided in the schedules, Section 31, Public Laws of 1929, Chap. 120, as amended by Public Laws of 1931 Chap. 164, Sec. 8081(mm), N.C.Code of 1939 (Michie).
On appeal to the Superior Court by the plaintiff, the court held that so much of the judgment of the Commission as holds that the plaintiff is not entitled to an award of compensation for total permanent disability is correct and approved and affirmed the award of the Commission; the court reversed so much of the judgment of the Commission as holds that as a matter of law the plaintiff is not entitled to compensation for disfigurement; that the findings of fact by the Hearing Commissioner are incomplete and inadequate in that there is no finding of fact with respect to plaintiff's allegation and contention that he has suffered a diminution of earning capacity resulting from his disfigurement and is therefore entitled to specific additional compensation therefor. His Honor remanded the cause to the Industrial Commission with directions to make further findings as directed, and to make an award to compensate for disfigurement in accord with its findings pursuant to the provisions of the statute.
From the judgment entered, plaintiff and defendants appealed to the Supreme Court, assigning errors.
Battle Winslow & Merrell, of Rocky Mount, for plaintiff.
Wilkinson & King, of Rocky Mount, for defendants.
Plaintiff's appeal.
The plaintiff's first assignment of error is to the conclusion of law of the Commissioner, affirmed by the Commission and by the court below, that the Workmen's Compensation Act does not permit a finding of total disability for the loss of one leg and the partial loss of the other foot, regardless of actual incapacity for work.
The statute construed, Section 8081 (mm), subsection (t), N.C.Code, 1939 (Michie), Public Laws of 1929, Chap. 120, as amended by Public Laws of 1931, Chap. 164, reads as follows:
The Commissioner stated in his conclusions of law, in considering the above statute,
The findings of fact that the plaintiff, as the result of his injury by accident, has sustained the complete loss of his left leg, 50 per cent permanent disability or loss of his right foot, and that he was totally disabled for the period from December 21, 1939 until March 25, 1941, are supported by competent evidence and are conclusive on appeal Lassiter v. Lassiter Telephone & Telegraph Co., 215 N.C. 227, 1 S.E.2d 542.
While the construction placed on the statute by the Commission did not affect the award made in the instant case, in accord with the findings of fact, we think it proper to call attention to that construction or interpretation of the statute as set forth in the conclusions of law.
The Commission says: The fact that the Workmen's Compensation Act states that certain injuries shall be deemed permanent and total disability, does not mean that permanent total disability can be found to occur only in those cases where the injuries come strictly within the enumerated class. The loss of both arms, hands, legs or vision in both eyes, under the statute, is conclusively presumed to be permanent total disability, and the Commission is directed so to find; however, the Commission still has power to find that other injuries or combination of injuries occurring in the same accident may result in permanent total disability and when the Commission so finds, the injured employee should be compensated as provided in Section 29 of the Workmen's Compensation Act, Code 1939, § 8081(kk). What constitutes permanent and total disability is a fact for the determination of the Commission, except in those cases where the injuries are conclusively presumed by the statute to result in permanent total disability. As stated in 71 C.J., page 842: "An award for permanent total disability is not limited to cases in which the employee suffers actual loss of members of the body, although the provision for compensation for total disability specifies that loss of said members shall be total disability, as this is not exclusive," citing Safety Insulated Wire & Cable Co. v. Court of Common Pleas, 90 N.J.L. 114, 100 A. 846; Maryland Casualty Co. v. Mueller, Tex.Civ.App., 247 S.W. 609; Spring Canyon Coal Co. v. Industrial Commission of Utah, 74 Utah 103, 277 P. 206.
We think, exclusive of the question of disfigurement, the award of the Commission was correct. One member was lost, but the other suffered only 50 per cent impairment; therefore the Commission properly awarded compensation, not for total disability, but for injuries compensable under the schedules.
Weekly compensation under the schedules cannot be increased by the inclusion of compensation for disfigurement. Compensation for disfigurement, if allowed, must be a separate award and the aggregate awards in no case may exceed the total compensation fixed in the Act. Arp v. E. A. Wood & Co., 207 N.C. 41, 175 S.E. 719.
The second exception is to the findings of fact of the Commissioner, affirmed by the Commission and the court below, in that there is no finding of fact as to whether or not the plaintiff employee is able to follow with reasonable continuity such work as he is qualified, physically and mentally, to do. We think it is elementary where an award is properly made under specific schedules and the Commission has found as a fact that the employee is not totally and permanently disabled, as in the instant case, the Commission is only required to find the percentage of disability of the member or members effected. Therefore this exception cannot be sustained.
Defendants' appeal.
The defendants appeal from that portion of the judgment entered in the Superior Court, which holds that so much of the judgment of the Commission as stated as a matter of law that the plaintiff is not entitled to compensation for disfigurement resulting from the loss of members for which compensation was awarded, is erroneous; and that the findings of fact by the Hearing Commissioner are incomplete and inadequate in that there is no finding of fact with respect to the plaintiff's allegation and contention that he has suffered a diminution of earning capacity resulting from his disfigurement and is, therefore, entitled to specific additional compensation therefor; and remands the same to the Industrial Commission with directions to make further findings as therein directed and to make an award with respect to compensation for disfigurement in accord with its findings pursuant to the provision of the statute.
The question involved here is this: Do the provisions of our Workmen's Compensation ...
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