State ex rel. Kinzig v. Industrial Commission

DISSENTING OPINION

By GEIGER, J.

I find myself unable to' agree with my associates. I believe that an examination cf the Workmen’s Compensation Law will disclose their erroneous position. We turn first to the Constitution, Sec 35, Art. 2. It provides in substance that for the purpose of providing compensation for injuries occasioned in the course of employment, a State fund may be created by compulsory compensation administered by the State, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in heu of all other rights to compensation and every employer who pays the premium shall not be liable to respond in damages lor the injuries suffered by his employee. Laws may be passed establishing a Board empowered to classify all occupations according to their degree of hazard, to fix lates of contribution to such fund according to such classification.

I think that it clearly appears that while the employer provides the fund necessary to compensate the injured laborer, yet the laborer has as a matter of fact made a contribution to the fund in that no matter how negligent the employer may have been m causing the injury the employee has no option but to accept the sum prescribed by the law in compensation for the loss which may greatly exceed the sum paid under the statute.

Sec 1465-69 GC provides that every employer will pay into the State Insurance Fund the amount of premiums determined and fixed by the Commission, such amount to be determined by the classification, rules and rates made by such Commission and thereafter pay such further sum of money into the Insurance Fund as may be ascertained to be due. This provision is referred to only to question the assertion of the majority that the employer by continuing to pay wages after his employee has been injured thereby places himself in a more favorable position in reference to future payments to be made by him to the fund. We only need to consider that this payment is to be made according to classifications.

According to the Constitution, the law shall be passed to classify ail occupations according to their degree of hazard and fix the rates of contribution to such fund according to the classification. It is true that the “hazard” may be determined by the amount drawn from the fund to pay employees falling within any given classification, but the reduction of the contribution would necessarily be so infinitesimal as the result of the wage that may be paid to an injured workman, that it can scarcely be urged that the employer in the payment of such workman had any thought of the ultimate saving to himself by virtue of bis commendable action in paying an amount based upon wages to one who, due to his injury, was not able to earn wages.

The position of the majority is based upon their construction of §1465-68 GC pointing to. the fact that the section provides that the injured employee is only entitled to receive compensation “for loss” sustained on account of such injury and they hold that so long as the employee received his wages from his employer, even though he was injured, that he has suffered no “loss” and therefore is not entitled to be compensated by the State.

It will be noted that the employee is entitled to receive such compensation for “loss” sustained as -provided in §§1465-79 to 1465-87 GC inclusive.

Sec 1465-79 GC provides for a payment of 66 2-3% of his “average weekly wages” so long as such disability is total.

Sec 1465-80 GC has a long schedule of compensations in case of partial disability, all of them based upon “average weekly wages”. This is also true as to .§§1465-81, J465-82, 1465-84 and 1465-85 GC. In none of these sections or numerous subdivisions is there any repetition of the word “loss” and reading 1465-63 in reference to the. other sections, it clearly appears that the legislative intent was that the “loss” was to be computed by these later sections, ail based upon “average weekly wages”.

The same is true for the allowance under §1465-68a GC in reference to occupational diseases, the payment to be based upon the same sections controlling the compensation for injuries and consequently based upon “average weekly wages”.

See 1465-84 GC being short is quoted:

“The average weekly wage of the injured person at the time of the injury *26shall be taken as the basis upon which to compute the benefits.”

That Section does not say a word about the “loss” that may have accrued. We may justly infer that the measure of the “loss” as adopted by the statute is the “average weekly wage”. The weekly wage measures the “loss” and fixes the amount to be paid without any diminution.

In only one §1465-61 GC, is there any reference to a diminution of the sum paid by reason of other sources of income. This section relates to policemen and firemen, where it is provided that if there be a municipal fund out of which these employees are paid, this may be considered in reducing the payment made out of the fund.

WAS THE RELATOR PAID WAGES?

It is urged that the relator was paid wages by his employer from the day of his injury. What are' wages? Wages are pay given for labor, usually mechanical, at short stated intervals, as distinguished from salaries or fees. Wages denote the price paid for labor, especially by the day or week and differ from salary. Webster’s Unabridged Dictionary.

Manifestly the employer was not paying wages to the injured man because he was not paying for labor. The employee being totally incapacitated and unable to perform any labor, it is clear that the statement made tnat it was a gratuity paid to a faithful employee is a correct description of the contribution. It is urged by the majority that inasmuch as this payment was represented to the Commission as a payment of wages and was carried on the book as such, it is as a matter of fact a payment of wages, which is the basis of the compensation out of the fund and that there being no loss of such, there could he no compensation demanded. It seems tc me that this is only a matter of bookkeeping. Had the employer wished to set up a special account labeled “Contribution” or “Gratuity” and carried the payment under that heading it would have made no difference. It was much more convenient and much simpler bookkeeping to continue it in the account where it had been carried when the money was actually paid to the employee as wages. The fact that it was so carried does not make it a payment of wages when no wages were earned and no wages due, nor take it out of the classification of a gift willingly given to an employee who had suffered a serious accident and was deserving of kindly treatment. To hold as the majority does would make any payment to an injured workman either out of a welfare fund providted by the employer or a benefit fund provided by employees mean a diminution, o! the loss and therefore a credit upon the sum due from the State fund. Such a construction would permit the state to profit by those benevolent actions toward the afflicted which are so highly commended and absorb the same by a petty, penny-pinching policy, to enrich the funds provided under the Constitution and the law to pay 'njured workmen.

I can not give my approval to a view of the law that would make it possible for the fund to be conserved to the extent of contributions to humanitarian purposes made either by the employer or by a group of1 employees or by a fraternal organization to ease the burden of one afflicted by a sudden disaster. Anyone having had experience with hospitalization and serious sickness is fully aware that expenses increase at an alarming rate and that the wage that would be sufficient to care for the workman and his family during health shrinks to an alarming extent. The afflicted workman and his family need aid from every available source. This workman is deserving and his employer kindly disposed to help, and it was no doubt remote from his thought that his beneficence would be tortured into a hard bargaining by which he was to have his'contribution to the fund ultimately reduced.

The action of the State in attempting to profit by this is. in my judgment, unjustified and would lead to the withholding of funds nec-ded by the injured workman, because the employer would realize that whatever he paid to him would not inure to his benefit but to the benefit of the' State.

Twenty years ago the writer of this dissent, rendered an opinion in the case of Brunk v R. R. Co., 20 N.P. (N.S.) 360. I still think that the case is a correct statement of the principles there involved. It has stood for many years, without any criticism known to me. While the principles are not identical with those involved in this case, yet it is not without value in considering the matter now before us. The right to be compensated out of the fund accrued to the workman the instant of his injury, and payments made by others, including his employer, will not diminish the obligation of the fund to respond in the amount fixed by the statute.