I do not agree with the majority that the question certified should be answered in the affirmative, nor that the last paragraph of section 12 of article 8306 has any application in this case. On the contrary, I think that it has been definitely settled by prior decisions of this court that the question here involved is not controlled by that paragraph at all but by four other paragraphs of that section. They are as follows:
"For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent of the average weekly wages of such employee, but not less than $7.00 per week nor exceeding $20.00 per week, for the respective periods stated herein, to-wit:
"* * *
"For the loss of a leg at or above the knee, sixty per cent of the average weekly wages during two hundred weeks.
"* * *
"In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member.
"* * *
"In all cases of permanent partial incapacity it shall be considered that the permanent loss of the use of the member is equivalent to, and shall draw the same compensation as, the *Page 177 loss of that member; but the compensation in and by said schedule provided shall be in lieu of all other compensation in such cases."
It must be kept in mind that we are dealing with a specific injury to claimant's leg which resulted in his total incapacity for 8 weeks, followed by a permanent partial loss of the use of the leg of 35 per cent. It was agreed that the compensation period is 200 weeks, which, incidentally, conforms to the period fixed in the second paragraph above quoted for the loss of the leg, and not to the maximum of 300 weeks provided in the last paragraph of section 12. His average weekly wages were $95.24. The trial court found that claimant was entitled to 8 weeks of compensation at the rate of $20.00 per week for the total loss of the use of his leg and 192 weeks of compensation at the rate of $20.00 per week for the 35 per cent. permanent partial loss of his leg. The question presented is whether the trial court correctly calculated the compensation for the partial loss of the use of his leg.
It will be noted that section 12 embraces nineteen specific injuries, followed by 5 concurrent specific injuries, each of which prescribes a definite number of weeks for the compensation period. All of these specified injuries I think are governed not by the last paragraph of section 12, but by the first paragraph thereof and such intervening paragraphs as become pertinent from the nature of the injury. However, it being practically impossible to forecast and include every conceivable injury of similar nature which might arise in the course of employment, the legislature no doubt added the last paragraph of section 12 in order to provide some reasonable compensation for such other injuries, less than general, as might occur but which were not included in the previous paragraph of the section. Such paragraph is as follows:
"In all other cases of partial incapacity, including any disfigurement which will impair the future usefulness or occupational opportunities of the injured employee, compensation shall be determined according to the percentage of incapacity, taking into account among other things any previous incapacity, the nature of the physical injury or disfigurement, the occupation of the injured employee, and the age at the time of injury. The compensation paid therefor shall be sixty per cent of the average weekly wages of the employees but not to exceed $20.00 per week, multiplied by the percentage of incapacity caused by the injury for such period not exceeding three hundred weeks *Page 178 as the board may determine. Whenever the weekly payments under this paragraph would be less than $3.00 per week, the period may be shortened, and the payments correspondingly increased by the board."
It is evident from the reference to "all other cases of partial incapacity" in the opening words of the paragraph that its application is limited to those injuries not theretofore mentioned, which includes "any disfigurement which will impair the future usefulness or occupational opportunities of the injured employee." For the injuries thus included, but not specified by name, it is provided that the compensation shall be determined according to the percentage of incapacity and that in determining the same the board may take into account, among other things, "any previous incapacity, the nature of the physical injury or disfigurement, the occupation of the injured employee, and the age at the time of injury." Consequently, in determining the compensation for these "other cases of partial incapacity," certain factors are to be considered which are immaterial in determining the compensation for the injuries specified in other paragraphs of section 12. In other words, for such injuries as the loss of a leg or arm, or the loss of the use thereof, whether total or partial, as well as any other injury specified in the section, the compensation does not depend upon, nor is it affected by, any of the factors mentioned in the last paragraph, but the compensation remains the same for a definite term irrespective of these elements. The last paragraph further provides that the compensation shall be "sixty per cent of the average weekly wages of the employee but not to exceed $20.00 per week, multiplied by the percentage of incapacity caused by the injury for such period not exceeding three hundred weeks as the board may determine." (Italics supplied.) The compensation period so provided is not of a fixed and rigid duration as that for the injuries theretofore specified in the section, but is one of flexible and changing duration as the facts in each case may justify, ranging from none to a maximum of 300 weeks, which not only allows a greater period than that specified for the single injuries theretofore enumerated, but places a discretion in the board which it does not have with reference to the injuries specified. It is also provided that whenever "the weekly paymentsunder this paragraph would be less than $3.00 per week, the period may be shortened, and the payments correspondingly increased by the board", which again segregates and differentiates this paragraph from any of the others which precede it. (Emphasis again supplied.) *Page 179
It is therefore obvious that the last paragraph of section 12 is an independent provision intended to apply only to such cases of partial incapacity as are not specified in other portions of the section. If I may be permitted to speculate, when we have some injury less than general, such as the amputation of an ear or a nose, or where some similar injury or disfigurement not specified in the section impairs the future usefulness or occupational opportunities of an employee, then, and not until then, will the last paragraph of section 12 become pertinent.
That the injury here involved is not governed by the last paragraph of the section, but by previous paragraphs thereof, is no longer an open question in this state. This has been definitely settled by decisions which have the express or implied approval of this court, and all of which involve the same character of injury with which we are presently dealing. Lumbermen's Reciprocal Ass'n. v. Pollard, Tex. Com. App., 10 S.W.2d 982; Petroleum Casualty Co. v. Seale, Tex. Com. App.,13 S.W.2d 364; Texas Employers' Ins. Ass'n. v. Maledon, Tex. Com. App., 27 S.W.2d 151; Fidelity Union Casualty Co. v. Munday, Tex. Com. App., 44 S.W.2d 926.
In the Pollard case the claimant suffered 75 per cent. disability of his right hand and 65 per cent. disability of his right arm, each of which was permanent. The trial court rendered judgment for both injuries, the first covering 150 weeks and the second 50 weeks. The court of civil appeals held that since the claimant had lost neither hand nor arm, nor suffered the total loss of the use of either, the recovery could not be had under the specific injury provision of the statute, but should be governed by the last paragraph of section 12, as the majority opinion concludes in the instant case. The defendant insurance company contended that the compensation should have been fixed under the provisions of section 11 of article 8306. The Commission of Appeals held that neither contention was correct, but that the injury came under "next to the last paragraph of section 12 of article 8306," and quoted the same. Since the use of the plaintiff's arm was only impaired by reason of the injury to his hand, both of the judgments of the lower courts were reformed so as to allow a recovery for 75 per cent. of 60 per cent. of his average weekly wages for 150 weeks, which period of compensation was that fixed for the loss of a hand in the specific injury portions of section 12.
In the Seale case the claimant received an injury to his right foot resulting in permanent partial loss of the use thereof of *Page 180 85 per cent. From the opinion of the Commission of Appeals and that of the Court of Civil Appeals, 4 S.W.2d 90, 91, it appears that the claimant was awarded judgment in the trial court "for 60 per cent. of his average weekly wages for 300 weeks, as in compliance with the last paragraph of section 12 of R.S. 1925, art. 8306." The following significant language is found in the opinion of the Court of Civil Appeals in that case:
"We think the pleadings and evidence thus outlined definitely and plainly take this case out of the class of `specific injuries' scheduled in section 12, where appellant contends it alone should go, and bring it squarely within the `other cases of partial incapacity,' as classified by the Commission of Appeals in the Moreno Case, supra, and for which the maximum period of 300 weeks' compensation is prescribed in the last paragraph of that section."
The theory thus expressed is identical with that of the majority opinion in this case with reference to the application of the last paragraph of section 12. With that thought in mind let us examine the opinion of the Commission of Appeals when the Seale case reached this court. From it we quote:
"We do not think the trial court submitted the issue made by the pleadings in this case. Most favorably construed, defendant in error's petition alleged only an injury to the foot. Having set out no other injury, the allegation that his injuries were permanent is referable to the specific injury alleged. * * *
"Under the pleadings, the court should have submitted separately the issues as to the duration and extent of defendant in error's injury to the specific member alleged, and also directed the jury to determine the percentage of incapacity sustained by reason of the injury to the foot, and in entering judgment should have awarded compensation under section 12 of the Workmen's Compensation Act (Rev. St. 1925, art. 8306, sec. 12).
"Under the pleadings, defendant in error was entitled to be compensated for a permanent partial incapacity to his foot. If the issue thus made by the pleadings had been properly submitted to the jury and a finding returned that the injury was partial and permanent, and the percentage of incapacity had been found, defendant in error would have been entitled to have received a sum equal to the percentage so found, multiplied by 60 per cent. of his average weekly wages for a period of 125 weeks.
"* * * *Page 181
"The manifest injustice of the rule contended for by defendant in error is made apparent by the recovery permitted in this case. If one of his colaborers had been injured at the same time defendant in error received his injury, which had resulted in the amputation of his foot, or in the complete loss of the use thereof, the recovery would have been confined under the plain provisions of section 12 of the act, to 60 per cent. of his average weekly wages for a period of 125 weeks, while defendant in error, who suffered a lesser injury, was allowed the same amount of compensation for a period of 300 weeks. In other words, he has been allowed more than twice as much compensation for a permanent partial incapacity to his foot as his colaborer could have been allowed for the complete loss of the use of his foot. We do not think, when the act is considered as a whole, that we are justified in imputing to the Legislature an intention to work such an injustice and inequality upon those entitled to receive benefits under the act."
The opinion in the Seale case stated that the court was following the rule laid down in the Pollard case and recommended that both judgments of the courts below be reversed and the cause remanded for trial "not inconsistent with the views herein expressed," and the Supreme Court not only followed the recommendation of the Commission of Appeals but expressly approved "the holding of the Commission of Appeals on the questions discussed in its opinion." Therefore, this court has affirmatively committed itself to the proposition that the last paragraph of section 12 has no application to the kind of injury we now have under consideration.
In the Maledon case the claimant sustained the total loss of the use of his hand for 20 weeks which was followed by a permanent partial incapacity to the extent of 40 per cent. It was agreed in the trial court that the compensation rate was $13.85, which was 60 per cent. of his average weekly wages, and, further, that he was not entitled to compensation for the first week of disability under the then existing law. The recovery in the trial court was for 19 weeks at $13.85 for the total incapacity, and 40 per cent. of the compensation rate, or $5.54, for the permanent partial incapacity for a period of 131 weeks, the remainder of the period specified in section 12 for the loss of a hand. The court of civil appeals reached the conclusion that under sections 10, 11 and 12 of article 8306, and with particular reference to the last paragraph of section 12, the claimant was entitled to $5.54 for 300 weeks for his partial incapacity, and reformed *Page 182 the judgment of the trial court and rendered judgment in keeping with its opinion in that respect. 11 S.W.2d 627. When the case reached this court the Commission of Appeals held that the claim was governed by the following portions of section 12: (1) The first paragraph of section 12; (2) the paragraph of such section specifying compensation of 60 per cent. of the average weekly wages during 150 weeks for the loss of a hand; and (3) next to the last paragraph of section 12. In keeping therewith the court reversed the judgment of the court of civil appeals and affirmed that of the trial court. That decision was expressly predicated upon the Pollard and the Seale cases.
In the Munday case the claimant sustained the total loss of the use of his right hand for a period of 15 weeks which was followed by permanent partial loss of the use of his right hand to the extent of 75 per cent. His wages were $10.00 per day. The trial court entered judgment for weekly compensation at the rate of $20.00 per week for 15 weeks for the total loss of the use of the hand and $15.00 per week for the 135 succeeding weeks of partial loss of its use, which was 75 per cent. of the amount allowed for the total loss of its use. That recovery was affirmed by the Commission of Appeals. It was held that the compensation for temporary total loss of the use of a member came under the same provisions of section 12 as that for permanent partial loss of the member, and for the same reasons announced in the Pollard, Seale and Maledon cases. The contention was made that nowhere in the workmen's compensation law is the temporary total loss of the use of a hand, or a permanent partial loss of the use of that member, made compensable in the absence of an affirmative showing of the fact that incapacity for work, of some degree or duration, resulted therefrom. That contention was overruled. The opinion quoted portions of section 12, not including the last paragraph, and then stated:
"With regard to a permanent partial loss of the use of a hand, it has been repeatedly held, in effect that such a loss comes within the purview of the above provisions and that payment of compensation each week, as there provided, is required to be made in the proportion that the use of the hand is permanently lost. Petroleum Casualty Co. v. Seale (Tex. Com. App.)13 S.W.2d 364; Lumbermen's Reciprocal Ass'n. v. Pollard (Tex. Com. App.)10 S.W.2d 982; Texas Employers' Ass'n. v. Maledon (Tex. Com. App.) 27 S.W.2d 151. That holding was expressly approved by the Supreme Court in the Seale Case, and impliedly approved in the other two. In conference with the Supreme *Page 183 Court, we have been authorized to declare all holdings to the contrary, in other cases, overruled." (Emphasis mine.)
From the language quoted we need not speculate as to what cases were intended to be overruled by the Supreme Court in the Munday case. The refusal of the writ of error by this court in Great American Indemnity Co. v. Stultz, 56 S.W.2d 200, furnishes the answer. In that case the claimant suffered the total loss of the use of his eye for 4 weeks which was followed by its permanent partial incapacity of 25 per cent. He contended that he was entitled to "compensation under the specific injury statute" for 300 weeks. The court of civil appeals overruled his contention and limited him to the period of 100 weeks specified in section 12 for the loss of an eye. The decision was based upon the Munday case and the opinion stated that if there was anything to the contrary in Travelers' Ins. Co. v. Richmond, Tex. Com. App.,291 S.W. 1085, that it had been overruled by the Munday case. The Richmond case, like the majority opinion in this case, held that compensation for the partial loss of a member was governed by the last paragraph of section 12. The Stultz case expressly disapproved the Richmond case and refused to follow it. Thus, by refusal of the writ of error in the Stultz case, this court again expressly approved the principle that compensation for injuries like the one here involved is governed by the antecedent paragraphs of section 12, and repudiated the theory that the last paragraph has any application.
In the Pollard, Seale, Maledon and Munday cases the employee sustained an injury to a specific member of his body resulting in permanent partial loss of the use of such member, which is precisely the situation in this case. In the Maledon and Munday cases the period of permanent partial incapacity was preceded by the total loss of the use of the member. For such total or partial loss these cases definitely decide that we must look not to the last paragraph of section 12 but to the antecedent paragraphs for the correct method of computing the compensation. For the total loss of the use of a member section 12 clearly provides that the compensation is the same as if the member had been amputated. No one seems to question that construction and the authorities mentioned definitely support it. The only difficulty presented is in determining the amount of compensation to be paid for permanent partial incapacity, particularly when 60 per cent. of the average weekly wages exceeds $20.00, as in this case. In other words, should we take 60 per cent. of $95.24 and multiply that by the percentage of incapacity, thus arriving at exactly $20.00 per week for the partial *Page 184 incapacity, or should we multiply what the claimant would be entitled to for the complete loss of his leg, that is $20.00, by the percentage of incapacity (35 per cent.) and thus arrive at the sum of $7.00 per week? The answer to this question is also found in the Pollard, Seale and Munday cases.
After quoting next to the last paragraph of section 12, the opinion in the Pollard case states:
"* * Following this specific compensation for the loss of the use of a member, we think it was contemplated by the provision above quoted that, if a person lost the complete use of a member, it should be considered the same as if the member had been amputated, and further, that, if the person had a permanent partial incapacity to a member, he should receive the compensation provided in section 12 for the loss of the specific member proportioned to the percentage of incapacity which theloss sustained would bear to the total loss of the member." (Italics supplied.)
From the Seale case the following paragraph is both interesting and illuminating:
"Under the terms of the Workmen's Compensation Act, defendant in error cannot, by alleging incapacity to labor on account of injuries received to his foot, be entitled to receive a greater compensation than the percentage of his incapacity bears to theamount he would have been permitted to recover if he hadsustained a complete loss of his foot." Any other construction of the act would permit an employee to recover more for the partial loss of the use of a member of his body than he could recover for the complete loss of the same. Such a construction of the act can only be arrived at by considering isolated portions thereof. In order to fairly arrive at the intention of the Legislature as to the compensation to be awarded an injured person, the act must be construed as a whole. When so considered, it is clear that it was never contemplated that one employee who has received a permanent partial incapacity to a specific member of the body should receive more compensation than another employee who has sustained a complete loss of the same member of the body. The result of so construing the act would do violence to the plainest principles of justice, and should not be indulged unless the language thereof compels such construction. This interpretation can be avoided by indulging the implication that a permanent partialincapacity to a specific member of the body must be compensatedat the same rate provided for *Page 185 a loss of the member, multiplied by the percentage of incapacityfound to exist." (Emphasis supplied.)
In the Munday case is found other very significant language. There the recovery for the 75 per cent. partial incapacity was $15.00 per week, which was 75 per cent. of the amount allowed for the total incapacity of the member. From the wage scale of the claimant, as stated in the opinion, it is obvious that he would have been entitled to $20.00 per week for his partial incapacity if the method of computation urged by the majority herein is the correct one. After quoting pertinent paragraphs of section 12, which, as above stated, did not include the last paragraph of the same, the court makes this very relevant observation:
"* * * the payment of compensation as provided in the judgment of the trial court is, in all respects, in accordance with thequoted statutory provisions, and the implications arisingtherefrom." (Italics supplied.)
The "payment" thus alluded to included the $15.00 per week for partial incapacity, which was 75 per cent. of the $20.00 per week allowed for the total loss of the use of the member.
From the quotations next above, particularly those portions which are emphasized, it is affirmatively stated in unmistakable language that for partial incapacity a claimant is entitled to no greater compensation than the percentage of his incapacity bears to the amount he would have been permitted to recover if he had sustained a complete loss of the member, or, as otherwise stated, that "permanent partial incapacity to a specific member of the body must be compensated at the same rate provided for a loss of the member, multiplied by the percentage of incapacity found to exist." The amount due in this case for the complete loss of the use of the member is indisputably only $20.00 per week, and that amount multiplied by the percentage of incapacity (35 per cent.) results in $7.00 per week as the compensation due for the partial incapacity, which process follows the rule so clearly announced in the Pollard, Seale and Munday cases, and which was applied in one of them where 60 per cent. of the average weekly wages also exceeded $20.00 per week.
I am not concerned with the conflicting opinions in Western Indemnity Co. v. Milam, 230 S.W. 825, and Maryland Casualty Co. v. Ferguson, 252 S.W. 854. Those cases were decided long prior to the authorities above mentioned and if they contain *Page 186 anything in conflict with the views herein expressed they have been overruled by the later decisions which have the express or implied approval of this court. I think this court is not only bound by these later decisions but under the doctrine of stare decisis should be bound by them; yet the majority opinion completely ignores their holdings.
Not only does the majority opinion ignore prior decisions of this court, but in my view it runs counter to the certain spirit and purpose of the workmen's compensation law, in that it grants a benefit in a case of this nature to an employee who receives high wages that is denied to one who receives low wages. When this law was enacted, and thereafter until recent months, the great bulk of employees received wages not exceeding $33 1/3 per week. That was the principal class of employees affected by the law. By limiting the amount of recovery for total loss to $20.00 per week regardless of the actual wage, the legislature placed a restriction upon high salaried employees. The majority recognizes that restriction in a case of total loss, but reverses the order in case of partial loss and enlarges the benefits of high salaried employees over those of the low salaried class. Under the holding of the majority, had the employee in this case been in the low wage bracket he would have been limited to 35 per cent. of the amount of compensation which would have been due him for the total loss of his leg, but since he falls within the higher wage brackets, he is permitted to recover 100 per cent. of the amount which would have been due him had his leg been totally lost. If his leg had been a total loss his compensation would have been the same as that of an employee suffering the same loss whose weekly wage was $33 1/3. In each case the basis of compensation would have been $20.00 per week. For the purpose of this law no weekly wage exceeds $33 1/3, since 60 per cent. thereof is $20.00. For total loss an employee receiving $95.24 per week is placed in exactly the same category as one receiving $33 1/3 per week. If the two receive the same compensation for the total loss of the use of a leg, it must follow that they should receive the same for a loss of 35 per cent. of its use. The majority would employ a ceiling of $33 1/3 for computing compensation for total loss. That is correct because it is in harmony with the compensation law; yet for computing compensation for partial loss the majority would increase the ceiling from $33 1/3 to $95.24, the wages actually received by the employee. Such construction offends against both the letter and spirit of the law as well as against the prior decisions of this court. *Page 187
I respectfully enter my dissent from the conclusions of the majority, and the reasons stated insist that the certified question should be answered in the negative. Justice Hickman and Brewster join me in this dissent.
Opinion delivered June 19, 1946.