(concurring).
I am in agreement with the opinion of Mr. Justice GRIFFIN. However, the dissent of the Chief Justice raises certain matters which may properly be discussed. The conclusion is expressed in this dissent that the two clauses of the paragraph in question1 are utterly incompatible and repugnant and hence the entire paragraph should be declared meaningless and void.
To me this is a stare decisis case and “we do not write on a clean slate.” Massachusetts v. United States, 333 U.S. 611, 68 S.Ct. 747, 92 L.Ed. 968. Much of what was recently said by us in Moss v. Gibbs, Tex.Sup., 370 S.W.2d 452 (1963) has application here.
Texas Employers Ins. Ass’n v. Patterson, 144 Tex. 573, 192 S.W.2d 255 (1946), is a decision of this Court and an application for writ of error was refused by this Court in Texas Employers Ins. Ass’n v. Hollingshead, Tex.Civ.App., 282 S.W.2d 305 (1955). Since these decisions, the paragraph here involved was re-enacted as a part of Article 8306, § 12, Vernon’s Ann.Tex.Stats. with no change in wording. Acts 1957, 55th Leg., Reg. Session, Ch. 397, p. 1186. It is a recognized rule of general application that when a statute which has been construed by the court of last resort, is reenacted without substantial change of verbiage, the court’s construction of the statute is adopted and confirmed. Lane v. Ross, 151 Tex. 268, 249 S.W.2d 591 (1952); Texas Employers’ Ins. Ass’n v. Holmes, 145 Tex. 158, 196 S.W.2d 390 (1946). This rule is one of general and not invariable application however.2 It is based upon the theory that when the courts construe a legislative act, such construction, if it be considered a mistake by the Legislature, may be corrected, hence if there be no legislative change it will be assumed that the Legislature approved the judicial construction particularly when the statute has been reenacted without substantial change in wording. However, when the court construes a portion of a statute and such construction, if applied to all portions of the statute, would render the legislative enactment absurd and unworkable, the force of the stare decisis argument based upon legislative inaction or failure to substantially amend, is measurably diminished.
It is my thesis that the paragraph may be properly construed in accordance with the Patterson opinion so that it will be neither repugnant as to terms nor meaningless. Admittedly the wording of the paragraph leaves much to be desired from the standpoint of clarity. However, if we can see what the Legislature is driving at and recognize a feasible workable plan under which the paragraph may be given meaning, we should not ignore this portion of the enactment as being contradictory and hence without force. Cf. Johnson v. United States, 1st Ct. of App., 163 F. 30, 181 L.R.A.,N.S., 1194.
While the Patterson case was concerned with temporary partial injuries to three fingers, the dominant holdings of the case *305were that the first clause of the paragraph in question applied to temporary losses of use of specific members of the body and that the second clause of the paragraph applied to permanent losses or losses of use of specific members.
Such difficulty as is encountered in the application of the two clauses in the paragraph to various factual situations lies in selecting extreme examples such as seldom, if ever, arise. Further, most of the difficulties of application even in these extreme factual situations do not arise from the application of the holdings of Patterson, but rather from the decisions contained in Lumbermen’s Reciprocal Ass’n v. Pollard, Tex.Com.App., 10 S.W.2d 982 (1928) and Petroleum Casualty Co. v. Seale, Tex.Com.App., 13 S.W.2d 364 (1929) which introduced the concept of partial or percentage loss of use of a specific member of the body. No difficulty is encountered when losses or total losses of use are involved.
We first examine cases of permanent and total losses and losses of use.
Article 8306, § 12, Vernon’s Ann.Tex. Stats, provides for compensation for partial incapacities occasioned by the loss or loss of use of specific members of the body.3 If a leg be lost, the partial incapacity occasioned thereby is compensated by paying the injured workman 60% of his average weekly wage for 200 weeks. If a hand be lost the partial incapacity occasioned thereby is compensated by paying the injured workman 60% of his average weekly wage for 150 weeks.4 Obviously, a loss of a member is a permanent and not a temporary condition. (The same may be said of a permanent and total loss of use of a member.) In the case of the loss of a leg and a hand, the second clause of the paragraph would apply and the workman would receive 60% of his average weekly wage for a total of 350 weeks. In rare instances compensation payable for a combination of losses of specific members might add up to more than 401 weekly installments of 60% of the average weekly wage. As 401 weeks is the outside limit for permanent and total disability, I would not attribute to the Legislature an intention to compensate a workman for a number of partial incapacities (represented by the loss of a number of specific members) in an amount greater than that provided for total and permanent disability. To do so would be in effect to recognize that the parts may be greater than the whole and would not be in keeping with the plan or scheme of the Workmen’s Compensation Act. I would say then that the outside limit for a combination of losses of specific members of the body would be 60% of the average weekly wage for a period of 401 weeks.
Similarly, permanent partial losses of use of specific members present no great problem insofar as the second clause of the paragraph is concerned. It could well be that at the time the Workmen’s Compensation Act was originally passed the Legislature did not contemplate that what is now Article 8306, § 12 would be applied to partial losses of use of specific members. However that may be, the Pollard and Seale cases held that the partial incapacity occasioned by a partial loss of use of a specific member should be compensated by paying to the injured workman the amount of compensation provided for a loss or total loss of use of the member, multiplied by the percentage of the partial loss of use of the member. That is, if a workman suffered s-*30675% loss of use of his hand he would he entitled to receive 75% (or %) of 60% of his average weekly wage for 150 weeks.
In cases of permanent partial losses of use of a member, this same percentage formula could be applied consistently with the provisions of the second clause of the paragraph here involved. Compensation for the loss paying the greater amount of money per week would first be paid, followed by the partial loss of use carrying the next highest weekly rate, etc. It would be an extremely rare case where the compensation paying period for a combination of permanent partial losses of use would exceed 401 weeks, particularly as the number of weeks specified as the limit for a loss of a member would set a similar limit for the partial loss of use of a member. However, in view of an unlikely occurrence where the limit of weeks would exceed 401, I would not say this was the outside limit of compensation for permanent partial losses of use of several members, but that the amount paid could not exceed the amount realized from 401 payments of 60% of the average weekly wage or the statutory maximum of $35.00 per week. A 3% loss of the use of the hand (150 weeks) plus a 10% loss of a leg (200 weeks) plus a 15% loss of the sight of one eye (100 weeks) would call for payments extending over 450 weeks. The amount paid, however, would be far below the maximum in money allowed for total and permanent incapacity. Obviously, the schedules contained in Article 8306, § 12 providing for a combination of losses of specific members such as the loss of an eye and leg above the knee have no application to partial losses of use of members.
We now consider temporary total losses of use. It was the holding of the Patterson case that the first clause of the paragraph in question applied Only to cases involving temporary losses of use of specific members of the body. If we have a temporary total loss of use of more than one specific member, no difficulty is encountered. If a workman suffers a temporary total loss of the use of a leg of 15 weeks duration and a temporary total loss of use of a hand for 75 weeks duration, he is entitled to recover compensation at the rate of 60% of his average weekly wage for 75 weeks and not 90 weeks. This because at the end of 75 weeks he is ready to return to work and he has drawn the allowable maximum in compensation for the period of time he was not working. When compensation is paid for the loss or loss of use of specific members, such compensation under the statute is paid for a partial incapacity measured by a fixed standard or schedule which arbitrarily treats a loss or loss of a member as being a “partial incapacity” entitling him to compensation for so many weeks. In cases of temporary total losses of use, when the “loss of use” comes to an end and the member of the body again becomes usable, it is obvious that the partial incapacity (loss of use of the member) comes to an end and hence the compensation likewise ceases. Such was the holding of the Patterson case and it presents no great difficulty of application insofar as temporary total incapacities are concerned. Of course, as pointed out in Patterson, compensation for a temporary total loss of use of a member cannot exceed the amount paid for a permanent total loss of use of a member.
We next consider temporary partial losses of use and here we encounter the only real difficulty involved in the construction problem. This clause provides that the workman shall receive compensation only for the injury which produces the longest period of incapacity. It is possible that in cases of temporary partial losses of use of more than one member the greater amount of money may not be paid for the incapacity of the longest duration when the compensation payable is measured under the holdings of the Pollard and Seale cases. For example, a workman may suffer an 85% loss of use of a hand of 50 weeks duration and a 10% loss of the use of a leg for 70 weeks duration. The amount of *307money payable for the temporary partial loss of use of the hand would be much greater than the amount of money payable for the temporary partial loss of use of the leg, — this because of the percentage of the losses of use involved. It was the obvious purpose of the clause to prevent double payments for partial incapacities which are temporary in nature. The maximum rate of compensation is 60% of the average weekly wage subject to the overall limit of $35.00 per week. It was not contemplated that one who suffered a temporary loss of the use of a hand and the concurrent temporary loss of a leg should be compensated for both temporary losses of use, but that compensation should cease when the “loss of use of both members” — the partial incapacity — came to an end. Since the prevention of the culmination of payments for temporary losses of use is the prime objective of the clause, it would seem entirely consistent with the spirit and purposes of the Act to say that in cases of temporary partial incapacities where compensation is measured by a percentage of losses of use of specific members, the workman should be paid the greatest weekly amount to which he would be entitled by reason of the respective losses of uses suffered by him, followed by the lesser weekly amounts if there be other losses of use extending over a greater period of time. To return to the example given, I would say that the workman would be entitled to 85% of 60% of the weekly wage for 50 weeks to be followed by 10% of 60% of the average weekly wage for an additional period of 20 weeks.
As heretofore stated, it seems clear that the practical difficulty of application of the first clause of the paragraph does not arise from the holdings in Patterson but rather from the decisions in the Pollard and Seale cases and it is not suggested that the holdings of Pollard and Seale and the long line of cases following them be overruled.
I would further say that where a permanent partial loss of use follows a temporary total or partial loss of use, that the permanent partial loss of use carrying the greater amount of weekly compensation would run concurrently with the compensation paid for the temporary total loss of use. Obviously, if a workman suffered an injury resulting in a temporary total loss of use of a leg for 15 weeks followed by a permanent 50% loss of the use of leg, his compensation would be 60% of his average weekly wage for 15 weeks followed by 50% of 60% of the average weekly wage for 185 weeks so as to reach the 200 week statutory limit. The situation would not be changed if he suffered an additional injury to the hand resulting in a temporary total disability of 10 weeks followed by a permanent 15% loss of the use of the hand. His compensation would be 60% of his average weekly wage for 15 weeks followed by 50% of 60% of the average weekly wage for 185 weeks, followed by 15% of 60% of the average weekly wage for a period of 150 weeks, the statutory limit set for the loss of a hand. If the original temporary loss of use was partial only, say 90%, the principle of compensation would be the same, i. e., 90% of 60%.
In my opinion the paragraph in issue can be given a meaningful construction in accordance with the Patterson, Pollard and Seale cases. This is a matter of statutory construction and if a reasonable construction of the paragraph can be set forth which is consistent with our prior decisions, that construction should be followed.
The result may then be examined by the Legislature and proper action taken, should the legislative branch believe that the objectives of the Workmen’s Compensation Law could be better served by a re-writing of the paragraph discussed in the opinions handed down in this case.
. For a discussion of this doctrine, see the majority and minority opinions in United States v. South Buffalo Railway Company, 333 U.S. 771, 68 S.Ct. 868, 92 L.Ed. 1077.
. The distinction between a “partial incapacity” and a “partial loss of use” of a member must be kept in mind. Under the statute a total loss of the use of the hand is a “partial incapacity.” Likewise a partial loss of the use of the hand is a “partial incapacity.”
. The combinations of injuries given herein are illustrative only and relate to the provisions of Article 8306, § 12. The loss of a leg and the loss of a hand -would seem to be a more serious injury than the loss of a hand and the loss of a foot, Article 8306, § 11a, hut would draw more compensation than that paid for total and permanent incapacity.