The object of Workmen's Compensation Acts is to compensate for loss of earning power resulting from industrial accidents. While it is not necessary that there should be a showing of an actual loss of earning power before compensation can be made for a disfigurement about the face or head, the evidence ought to show that the disfigurement for which compensation is sought bears some relation to the capacity to earn and to secure profitable employment. People v. Koloski, 309 Ill. 468, 141 N.E. 163. The provision of our statute for additional compensation for facial disfigurement appears in the subsection (b) of section 156-117, Comp. St. 1929, which provides for "disability" partial in character but permanent in quality. There are abundant other indications in the act that this "disability" is the disability to earn wages. Our legislation pertaining to facial or head disfigurement makes affirmative findings in two respects necessary, before the claimant may receive an award thereunder. The disfigurement must be serious and permanent. The presence of these conditions must be shown, in each case, to come within its terms, and are matters properly for the determination of the trial judge on the evidence produced, subject to review. Simon v. Maryland Battery Service Co., 276 Pa. 473, 120 A. 469.
In the subsection of our statute above cited, there is a schedule of 43 "cases" in which the compensation shall be 55 per cent. of the earnings of the workman subject to the limitations of the act as to maximum and minimum payments. Then follows the schedule of the number of weeks the workman may have compensation for the loss of arms, hands, fingers, legs, toes. This enumeration consumes 39 of the 43 "cases" specified. It provides also that for total deafness in one ear compensation for 35 weeks, total deafness in both ears 135 weeks, and total blindness of one eye 100 weeks. These instances with those heretofore referred to embrace 43 of the 43 cases for which specific and arbitrary provision is made. It is plainly apparent that injuries to arms, hands, fingers, legs, feet, and toes might occur without resulting disfigurement to the face or head. It is also *Page 323 apparent that the injury might cause total deafness in one or both ears without resulting facial or head disfigurement. Although more rarely, perhaps, it is also true that the injury might cause total blindness of one eye without a resulting disfigurement of the face or head. This was developed in the House of Lords opinions in Ball v. Hunt Sons, 1912 A.C. 496, cited by Pound, J., in Sweeting v. American Knife Co., 226 N.Y. 199, 123 N.E. 82.
So far, then, it appears that in 42 of the 43 "cases" the "additional sum for compensation on account" of face or head disfigurement is for additional impairment of earning power resulting from serious and permanent disfigurement "about the face or head." In other words, it must be shown by the claimant that he is "seriously permanently disfigured about the face or head" "in addition" to having experienced the loss of the use of any of the 42 members listed in the schedule for which he may be compensated before he can successfully claim an "additional sum for compensation on account thereof."
There is but one remaining specific case listed in the schedule, to wit: "For the loss of * * * one eye by enucleation, 110 weeks."
It is this clause which requires a search for the legislative intent which when ascertained is the law.
It seems to be plain that so far as disability for work is considered merely as inability to work the workman with a sightless eye will be no worse off if the loss of sight is occasioned by enucleation of the eye than if it be otherwise totally blind. The Legislature was doubtless familiar with the very reasonable exposition of the theory of Workmen's Compensation Acts as expounded in Ball v. Hunt Sons, supra, that, "The injury for which the statute gives compensation is not mutilation or disfigurement or loss of physical power, but loss or diminution of the capacity to earn wages," and that impaired ability to get work is compensable if such impairment results from an injury. In that case (which is approvingly cited by American courts) the court said: "About fifteen years ago the appellant, who is an edge tool moulder, suffered an injury to his left eye, the ball of which was penetrated by a steel chip. The accident resulted in the blindness of that eye, but did not produce any disfigurement in the workman's appearance, whichremained unchanged. On September 7, 1910, however, the appellant, being engaged in cutting out brick-work, was struck in the same eye by a piece of brick. The result of this accident was that the eye had to be removed. A marked disfigurement has consequently resulted from the mutilation. With regard to the power to do work, it remains as before; but with regard to the power to get work, that appears to have been lost, or at least diminished." This being a fair argument to apply to such a situation, the first thing one has to do is to apply one's mind to what is the substantive intention of the Legislature in saying that: "If any workman is seriously permanently disfigured about the face or head, the court may allow such additional sum for compensation on account thereof as it may deem just, but not to exceed a maximum of seven hundred *Page 324 fifty ($750.00) dollars" and in the same subsection saying that compensation shall be for "total blindness of one eye, 100 weeks" and "For the loss of * * * one eye by enucleation, 110 weeks."
It seems plain to me that the Legislature knew that enucleation of the eye would not diminish the power to work any more than total blindness of the eye, but considered that the enucleation of an eye would necessarily result in a facial disfigurement which would diminish the power to get work and therefore in a "case" so apparent provided for compensation for 10 additional weeks "on account thereof." Since in such case the disfigurement would be inevitable and similar in disfiguring effect in most cases, the Legislature withdrew from the courts the power to deal with it.
The maximum compensation which a workman might receive for loss of an eye by enucleation in excess of loss of the sight of an eye by other means would be $15 per week for an additional 10 weeks — a total of $150. I cannot trace this additional allowance by the Legislature to anything else than the facial disfigurement incident to the enucleation, since the enucleation does not diminish the power to work beyond the blindness which is compensated by compensation for only 100 weeks. No satisfactory explanation of any other purpose has been suggested.
I do not mean, of course, that the workman may not have an"additional sum for compensation" on account of serious permanent disfigurement about the face or head if such disfigurement is in addition to that necessarily consequent upon enucleation of an eye. But in the case at bar, as stated by the majority: "There is no dispute between the parties relative to the disfigurement. There is none except that consequent on the loss of the eye by enucleation." It is no sufficient answer to say that 10 weeks' additional recovery on the basis of the maximum wage allowance is disproportionate to the maximum amount the court might allow under the general clause. It is at least certain. All of the specific allowances in the schedule are arbitrary. In cases of additional allowance under the general clause the claimant might get nothing or he might receive anywhere from one dollar up to $750.
The construction of the statute which I here affirm as the correct one as applied to the facts, in the case at bar, was that urged upon the trial court by the appellant. The appellee apparently ignored it in the trial court. He did not claim compensation for loss of his eye by enucleation and also for compensation for facial disfigurement. To the contrary, he claimed for "total blindness of the left eye and by reason of said injury the undersigned is seriously permanently disfigured about the face on account thereof." His theory was that he was entitled to recover compensation for total blindness of one eye for 100 weeks and for the facial disfigurement in addition thereto. The court declined to make a finding of fact requested by appellant: "That the plaintiff suffered no facial disfigurement permanent or otherwise except resulting from the loss of his left eye," perhaps deeming such requested finding immaterial. *Page 325
The court found: "That while so working, a piece of steel flew into the eye of the plaintiff, totally destroying the eyesight of said eye." And further, "That said injury caused total blindness of the left eye," and: "That by reason of said injury the plaintiff was seriously, permanently disfigured about the face."
Upon the foregoing and other findings the court concluded that the plaintiff was entitled to recover of the defendants weekly compensation for 100 weeks, and also the "sum of $750.00 on account of the disfigurement occasioned by the injury to said eye."
The judgment followed the conclusions.
I concur in affirming the judgment.