This is an application by the Galloway Coal Company, a corporation, for writ of certiorari to review the judgment and proceedings in the case of James T. Stanford against it under the Workmen's Compensation Act.
The Galloway Coal Company admits that the plaintiff was injured in an accident while in the employ of the defendant about December 20, 1923, and plaintiff was disabled as a result of the injuries received for a certain length of time, and its insurance carrier has paid plaintiff the sum of $572.50, and it refused to pay any more, because it was advised that it had paid plaintiff all that was due him. So this suit arose over a dispute between the plaintiff and defendant in regard to the extent of the disability of the plaintiff from the injuries, and this was the only question at issue.
The court found the injuries of plaintiff consisted of a broken bone in his left leg below the knee and the fracture of two of the bones in his left foot; that his average weekly wage was $26.22; and that he has more than three (six) totally dependent children. The court further found the plaintiff from these injuries in his foot was totally disabled temporarily from December 20, 1923, to April 1, 1924, and awarded him $15 per week during that time as compensation, which aggregated $216.22. This award was correct, as 50 per cent. ($13.11) of the average weekly earnings received ($26.22) would exceed the maximum compensation of $12 per week allowed, and this maximum per week is allowed to be increased from $12 to $15, the amount fixed by the court when the employé, as in this instance, has three or more totally dependent children. The statute provides:
"This compensation shall be paid during the time of such disability, not, however, beyond 300 weeks." Section 7551, subd. (a) and (h).
The court also found this injury to plaintiff's foot partially disabled him temporarily for 13 weeks from April 1, 1924, to July 1, 1924, and that his earning capacity was decreased 80 per cent. during that time on account of said injuries, and awarded him $12.59 per week during that time which aggregated $163.67. This award was correct. This 80 per cent. of $26.22, the average weekly earnings, would make his average weekly earnings $20.98 on account of this partial disability, and 50 per cent. of this $20.98 would be $10.49. This 50 per cent. maximum for the employé is allowed to be increased to a 60 per cent. maximum, as he has more than three totally dependent children. Under this statute (subd. [h]) the 50 per cent. maximum may be increased 5 per cent. for each totally dependent child until such per cent. shall reach a maximum of 60 per cent. Sixty per cent. of $20.98, the average weekly earnings, would be $12.59 per week, the amount fixed by the court.
This statute (section 7551, Code 1923, subd. [b]), provides:
"In all cases of temporary partial disability the compensation shall be fifty per cent. of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition. And this compensation shall be paid during the period of such disability, not, however, beyond three hundred weeks." *Page 84
This 50 per cent. did not make the weekly compensation allowable reach the maximum of $12 or over per week allowed to the employé. So he was entitled to 50 per cent. of this $20.98. This 50 per cent. under subdivision (h) of this section could be increased to a maximum of 60 per cent. for the employé, as he had at the time of the injury, and during that time, more than three totally dependent children under the age limit. This part of subdivision (h) provides:
"Wherever in this section there is a provision for 50 per cent., such per cent. shall be increased five per cent. for each totally dependent child of the employé under the age of eighteen years at the time of the injury to the employé until such per cent. shall reach a maximum of sixty per cent."
In this award the court followed the statute. Section 7551, Code 1923, subds. (b), (h).
The court also found this injury to plaintiff's foot caused a permanent partial disability, and his earning capacity will be thereby permanently decreased to the extent of 30 per cent., and awarded him compensation from July 1, 1924, for a period of 97 4/7 weeks at the rate of $4.72 per week.
Under the statute (section 7551, subd. [c]), "for permanent partial disability the compensation shall be based upon the extent of such disability." The court by its order fixed from the evidence the extent of the permanent partial disability at 30 per cent. decrease. This was the proper method in order to arrive at the compensation. This subdivision (c) also provides:
"In cases of permanent disability, due to injury to a member resulting in less than total loss of use of such member, not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member, which the extent of the injury to the member bears to its total loss."
The time and compensation fixed for the loss of a foot is 50 per cent. of the average weekly earnings during 125 weeks. Subdivision (c) of section 7551, Code 1923.
The court had fixed compensation for the temporary total disability for a period of 14 3/7 weeks from December 20, 1925, to April 1, 1926, and for temporary partial disability for a period of 13 weeks from April 1st to July 1st, and there remained only 97 4/7 weeks of the 125 weeks' period for compensation for the permanent partial disability, which was the proper time therefor, as fixed by the court under the statute. The court fixed the compensation for the permanent partial disability at $4.72 per week for 97 4/7 weeks. In this the court did not err. The 30 per cent. decrease by the permanent partial disability in the average weekly earnings of $26.22 would be $7.87, and of this $7.87 he was entitled to 50 per cent. weekly, plus the per cent. allowable for the total dependent children, which would make the maximum per cent. allowable 60 per cent., as hereinabove shown; and 60 per cent. of $7.87 would be $4.72, the amount allowed by the court to plaintiff per week for 97 4/7 weeks. The court allowed the defendant credit for the full amount paid by it to plaintiff, and ordered it to pay the balance to the plaintiff at times and in amounts not necessary to be mentioned herein, as no objection is raised to that part of the judgment.
There is no permanent and total loss of the use of this foot of plaintiff from the injury, but there was an immediate, temporary total disability from it for a period of 14 3/7 weeks, and there was immediately thereafter a temporary partial disability from it to the extent of 80 per cent. decrease for 13 weeks, and thereafter there was a permanent partial disability from it to the extent of 30 per cent. decrease in the average weekly earning for 97 4/7 weeks and longer. It will be observed the court allowed for temporary total disability under subdivision (a), and for temporary partial disability under subdivision (b), which in extent exceeded the permanent partial disability, and for permanent partial disability under subdivision (c), which was less in extent than the temporary partial disability. The court allowed the compensation permitted by the statute for each disability, but the time of neither overlapped the other, and the entire time for which compensation was allowed did not exceed any of the periods fixed therefor by the statute. Section 7551, Code 1923, subds. (a), (b), (c), (h).
This judgment under the facts found is in accord with the intent and purpose of the statute, and the interpretation placed on it by this court in Tennessee C. I. Co. v. Shelby,106 So. 499.1 But the rule laid down in Ex parte Diniaco Bros.,207 Ala. 685, 93 So. 388, and followed in Ex parte Jefferson Slag Co., 209 Ala. 263, 96 So. 138, for fixing the time and awarding compensation in case of permanent partial disability, when there is a temporary total disability, concurrent in part, is contrary to the statute, and contrary to this construction of it, and the holdings in those cases to that extent should be overruled. The maximum time (125 weeks) for compensation for permanent partial disability fixed by the statute cannot be reduced, except by deducting therefrom the time, if any, allowed compensation for either temporary total disability or temporary partial disability, or both. The percentage of loss in the average weekly earnings caused by the permanent partial disability from the injury can be used only in ascertaining the amount of compensation, which should be awarded, and has no bearing on, and no place in, fixing the time for which the compensation should be paid. Authorities, supra.
The construction of this statute (section *Page 85 7551 [a], [b], [c], Code 1923) by the writer as applied to the facts of this case will produce the following results:
[a] Temporary partial disability for 14 3/7 wks. at $15 per wk. .................................. $216 22
[b] Temporary total disability for 13 wks. at $12.59 per wk. .................................. 163 67
[c] Permanent partial disability for 97 4/7 wks. at $4.72 per wk. ................................ 460 53
Total weeks, 125; total pay ................... $840 42
The practical application of the construction given this statute by this court in the case of Diniaco Bros., supra, as applied to the facts in this case, would produce the following results:
[a] Temporary total disability for 14 3/7 wks. at $15 per wk. ..................................... $216 22
[b] Temporary partial disability for 13 wks. at $12.59 per wk. ............................... 163 67
[c] Permanent partial disability for 9.07 wks. at $15 per wk. .................................. 136 05
Total weeks, 37.50; total pay ................. $515 94
By this construction the injured employé will lose $840.42, less $515.94, making $324.48. The actual loss to this employé by this rule is the sum of $324.48. It will be observed by this construction of the statute that this employé receives for total disability $15 per week, and for temporary partial disability, which decreases his earning capacity 80 per cent., the sum of $12.59 per week, and for a 30 per cent. permanent partial disability he receives $15 per week. Under subdivision, (b) for temporary partial disability decreasing his weekly earnings 80 per cent. he will receive weekly pay the sum of $12.59, and yet under subdivision (c) for permanent partial disability decreasing his weekly earnings only 30 per cent. he will receive the sum of $15 per week, the same pay as for total disability. This construction of the statute leads to a result contrary to the intent of the Legislature when given a practical application. As his ability from the injury to work increases, his compensation per week is increased instead of diminished. The time is computed under that rule in the Diniaco Bros. Case, supra, in this case thus: 30 per cent. of 125 weeks is ascertained, which is 47 1/2 weeks, and from this 47 1/2 is then deducted the 14 3/7 weeks and the 13 weeks, and compensation is allowed for the remaining time (9.07 weeks) for permanent partial disability.
This construction of this statute by this rule as to compensation and time for payment for permanent partial disability was not intended by the Legislature. It works a great injustice to this employé. It deprives him of $324.48, which is justly due him under the statute. Authorities supra.
This court, in Ex parte Cent. I. C. Co. 209 Ala. 22,95 So. 472, in writing of this act, correctly stated:
"This Act, being remedial in nature, will be given a liberal construction to accomplish the purpose of the enactment. Ex parte Majestic Coal Co., 208 Ala. 86 [93 So. 728]."
This rule in the Diniaco Bros. Case, 207 Ala. 685,93 So. 388, and followed by the court in this case, is not a liberal, but is a strained, construction of the act, which results in great injury to the rights of the employé.
The judgment is free from error. It should be affirmed and the writ denied.
SAYRE, J., concurs with this dissenting opinion.
1 214 Ala. 87.