Utica-Mohawk Mills v. Orr

• Decision Date: 26 May 1955
• Docket Number: UTICA-MOHAWK,No. 17007,17007
• Citation: 87 S.E.2d 589,227 S.C. 226
• Parties: MILLS and Utica Mutual Insurance Company, Appellants, v. Curtis ORR, Respondent.
• Court: South Carolina Supreme Court

Page 589

87 S.E.2d 589

227 S.C. 226

UTICA-MOHAWK MILLS and Utica Mutual Insurance Company, Appellants, v. Curtis ORR, Respondent.

No. 17007.

Supreme Court of South Carolina.

May 26, 1955.

Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellants.

Charles & Charles, Greenwood, for respondent.

STUKES, Justice.

This action (under the Declaratory Judgment Act, Sec. 10-2001 et seq., Code of 1952) is for the construction of, and judgment upon, an unappealed award of workmen's compensation to respondent by the Industrial Commission which was made on Sept. 28, 1953, when respondent was not employed, as follows:

'It is ordered that the defendants shall pay to the claimant, Curtis Orr, compensation equal to sixty (60%) per cent of the difference between the average weekly wage he earned before the injury and the average weekly wage which he is physically able to earn after the injury for thirty (30%) per cent permanent disability to the body as a whole, not to exceed the compensable rate of Twenty-five and no/100 ($25.00) Dollars per week.'

Respondent suffered a compensable back injury on April 14, 1951. He underwent an operation, after which he returned to work on December 3, 1951, having meanwhile received weekly compensation for temporary total disability. Upon return to work he was paid slightly higher wages than before his injury until June 7, 1952, when he was put on lighter work and his wages were decreased. He continued at this new job until February 5, 1953, since which he has not worked and has therefore earned no wages.

During the period June 7, 1952-Feb. 5, 1953, respondent was paid weekly compensation at the rate of 60% of the difference (decrease) in his weekly wages. However, after respondent quit work on Feb. 5, 1953, appellants paid him $25 per week until Feb. 19, 1954 as for total disability, to which he was not entitled under the award. (The case arose before the amendment of 1953, 48 Stat. 103, which increased the maximum weekly compensation from $25 to $35).

The trial court reached the following conclusion which is quoted from the judgment under appeal, with our insertions in parentheses:

'The Commission has found as a fact that Defendant (claimant) has sustained a thirty (30%) per cent disability to the body as a whole. We must therefore arrive at the diminution of wages in dollars and cents as produced by the accident.

'The record reveals that at the time of the injury, the Defendant (claimant) was earning Fifty-six and 05/100 ($56.05) Dollars per week; a loss of thirty (30%) per cent earning power (disability) would reduce these wages by $16.815 per week, but the Act (Code Sec. 72-152) allows recovery of only sixty (60%) per cent of this loss or $10.089 per week which fixes Defendant's (claimant's) compensable rate.

'The accident having occurred on April 14, 1951, there has accrued to August 6th, 1954, a total of one hundred seventy-three (173) weeks, of which, one hundred twenty-four (124) weeks, have been paid, leaving due as of August 16, 1954, Four Hundred Ninety Four and 35/100 ($494.35) Dollars, being the compensable rate of $10.089 per week multiplied by fifty (50) (forty-nine-interpolated) weeks. The remaining one hundred twenty-six (126) (one hundred twenty-seven-interpolated) weeks, which will complete the three hundred (300) weeks from the date of the injury provided under the Act has not accrued, and will be payable only in case no wages are earned by the Defendant (claimant) during said time, or if wages are earned, in the ratio such wages reduces defendant's (claimant's) earning capacity as fixed by his compensable wages. 'The disability is to be measured by the employee's capacity or incapacity to earn the wages which he was receiving at the time of his injury.' Keeter v. Clifton Manufacturing Company, et al., supra. (225 S.C. 389, 82 S.E.2d 520.)'

We think that the principle applied in the decision is correct because it follows the terms of the act as will be seen, but the court fell into error in failing to allow appellants credit for the overpayment of compensation as for total disability instead of partial, which was the award. This refers to the period of Feb. 5, 1953-Feb. 19, 1954. The court simply applied the percentage of partial disability to respondent's wages at the time of the accident and took 60% of it to arrive at the weekly compensation when respondent was not working.

The principal question involved in the appeal is the interpretation of the provision of the Workmen's Compensation Act for compensation for partial disability, which is Section 72-152 of the Code of 1952, as follows (before the aforementioned inapplicable amendment of 1953):

'Except as otherwise provided in § 72-153, when the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as provided in this chapter, to the injured employee during such disability a weekly compensation equal to sixty per cent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than twenty-five dollars a week. In no case shall the period covered by such compensation be greater than three hundred weeks from the date of injury. In case the partial disability begins after a period of total disability, the latter period shall be deducted from the maximum period allowed in this section for partial disability.'

Section 72-153 provides certain awards for specific injuries to various members of the body, which is of no present application.

The employer and insurer contend that the percentage of partial...