W. Condensing Co. v. Indus. Comm'n

• Citation: 291 N.W. 339,234 Wis. 452
• Parties: WESTERN CONDENSING CO. et al. v. INDUSTRIAL COMMISSION et al.
• Decision Date: 09 April 1940
• Court: United States State Supreme Court of Wisconsin

234 Wis. 452

291 N.W. 339

WESTERN CONDENSING CO. et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

April 9, 1940.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed.

Action by Western Condensing Company and its insurer against the Industrial Commission and another to review an order of the Industrial Commission awarding compensation under the Workmen's Compensation Act. From a judgment of the circuit court confirming the award the plaintiffs appeal. The facts are stated in the opinion.Quarles, Spence & Quarles, of Milwaukee (Kenneth P. Grubb, of Milwaukee, of counsel), for appellants.

John E. Martin, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondents.

FOWLER, Justice.

This is a workmen's compensation case. The only point at issue is the method of computing the applicant's compensation for partial permanent disability. The injuries and the extent thereof are stipulated. The injuries were to the index, middle, ring and little fingers of the right hand, all of which were injured. The injuries occurred in 1938, so that the 1937 statutes apply. The citations herein are all to those statutes.

Partial permanent disabilities are classified by the statutes as major and minor. Secs. 102.52, 102.54, Stats. Injuries to the fingers are in the minor class. Sec. 102.54. The statutes base the computation for specificinjuries on a specified number of weeks. Sec. 102.55 specifies how in computing weeks. Sec. 102.54, covering injuries to the fingers, shall be applied. The three sections of the statutes above cited, so far as material under the contentions made, are set out in the margin,¹ as is sec. 102.555, which we later refer to.

[1][2]Whenever the statutes prescribe the basis of computation for an injury, the statutory basis must be applied. Rhinelander Paper Co. v. Industrial Comm., 216 Wis. 623, 258 N.W. 384;Consumers Oil & Fuel Co. v. Industrial Comm., 224 Wis. 363, 271 N.W. 641, 272 N.W. 463. Applying sec. 102.54, Stats. according to sec. 102.55 to the stipulated instant injuries, there is no difficulty or doubt how the weekly loss attributable to the applicant's injuries to his ring, little and index fingers must be computed. These fingers were not amputated and 80% of the weeks designated by subsec. (2) of sec. 102.55 is taken. Sec. 102.55(5). For the loss of a single finger at the proximal joint the statute fixes the loss at a specified number of weeks. See. 102.54. In case of injury to two fingers, for the greater injury 10% is added to the amount the injury would carry if it were the only injury. Sec. 102.55 (2). Where there are more than two fingers injured, 20% is added to the amount the finger would carry if it were the only one injured. Sec. 102.55 (2). On this basis the allowance for the stipulated losses, attributable to these three fingers, expressed in weeks, is as follows: Ring finger: The loss is stipulated at 65% of the loss at the proximal joint. Loss at proximal joint is 15 weeks. Sec. 102.54, subd. 11. Sixty-five per cent. times 15 times 80% equals 7.8 weeks; Little finger: The loss is stipulated at 70% of loss at proximal joint. Loss at proximal joint is 16 weeks. Sec. 102.54, subd. 15. Seventy per cent. times 16 equals 11.20 weeks. Add to this 1.12 weeks (10%) equals 12.32 weeks. Eighty per cent. of 12.32 weeks equals 9.856 weeks; Index finger: The loss is stipulated at 45% of loss at proximal joint. Loss at proximal joint is 35 weeks. Sec. 102.54, subd. 3. Forty-five per cent. times 35 equals 15.75 weeks. Add 3.15 (20%) equals 18.90 weeks. Eighty per cent. times 18.90 equals 15.12 weeks.

[3][4][5]Computation of the loss consequent on amputation of the middle finger is more difficult. The finger being amputated, it is a specified schedule injury and must be computed under sec. 102.55 (3), Stats. Rhinelander Paper Co. v. Industrial Comm., supra. It is stipulated by the parties that the loss due to the amputation was that at “amputation of the second joint plus 3/5th of the phalanx, and a 15% permanent disability to the remaining portion of the proximal phalanx.” The loss attributable to amputation at the proximal joint is 25 weeks, Sec. 102.54, subd. 7; that attributable to amputation at the second joint is 14 weeks. Sec. 102.54, subd. 8. Thus 11 weeks are attributable to the loss of the proximal phalanx. As by stipulation the amputation took off 3/5ths or 60% of the proximal phalanx,60% of 11 weeks, or 6.6 weeks must be added to the 14 weeks, which gives 20.6 weeks. As 2/5ths or 40% of the phalanx remained and this was disabled 15%, to get the loss attributable to this we must take 40% of 11 weeks times 15%, or .66 weeks; .66 weeks times 80% equals .528 as the loss attributable to this item; 20.6 weeks plus .528 weeks, equals 21.128 weeks. Adding 20%, 4.2256, gives 25.353 weeks, the total attributable to the amputated middle finger. The total number of weeks attributable to all fingers is 7.8 weeks plus 9.856 plus 25.353 plus 15.12 equals 58.129 weeks. The injury occurred in 1938. The applicant's compensation is fixed by the statute then existing, sec. 102.52, Stats. 1937, by multiplying 65% of his weekly wage, which was $19.60 by the total number of weeks as above computed.

[6]The Commission did not compute the award according to the statutory schedules, but followed a schedule of its own creation, and did as it did in Consumers Oil & Fuel Co. v. Industrial Comm., supra. We there held that the Commission must follow the statutory method of computation. The like was held in Rhinelander Paper Co. v. Industrial Comm., supra. Justification for using the method here taken is urged on the ground that it has been followed for twenty-two years. This contention was made and rejected in the Consumers Oil & Fuel Co. case, supra. The departure there involved not being justifiable, that here involved is not. As the Commission departed from the statutes in making its computation, its computation was necessarily wrong.

[7][8][9][10]Although the above is sufficient to rule the case we should perhaps refer to the reason of the Commission for departure from the statutory schedule for minor permanent disabilities. It construed subsec. (5) of sec. 102.55, Stats., to authorize it to consider the injuries to the fingers in the instant case as injuries to the whole hand and to compute them according to the major partial permanent disability schedule which allows 140 weeks for loss of all fingers at the proximal joint, leaving only the thumb and palm. We can not construe this provision as so permitting. Sec. 102.55 declares how the schedule for minor injuries shall be applied. So far as it expressly refers to specific injuries, it first declares by subsec. (2) how the allowance for injuries to more than one finger shall be computed. It next by subsec. (3) declares how amputation of fingers between joints shall be computed. It next by subsec. (4) declares how total permanent paralysis of fingers shall be computed. Subsec. (5) then provides that in case of all other injuries to the fingers resulting in permanent disability, though the fingers be not amputated or their faculties be not wholly lost, the compensation shall be proportionate to the injuries specifically named in the schedules. The only specific injuries to the fingers named in the schedule is loss at a joint. It follows that injuries to fingers not constituting loss at a joint must be computed proportionately to those named in the schedule. Indemnity in such cases “shall be determined by allowing *** the percentage of permanent disability resulting thereafter as found by the commission.” When the Commission has found the percentage of permanent disability resulting from an injury to a finger it has exhausted its power to determine the proportionate loss conferred upon it by the statute, and from...