ON REHEARING. Movants insist that the question for determination is whether Roddy should be entitled to recover compensation from March 24, 1934, to December 7, 1934, as for the temporary (total) loss of use of his leg even though during this time he received his wages; and that when the court holds as a matter of *Page 636 law that Roddy is entitled to recover compensation for the functional loss of use of his leg for this period of time, 35 5/6 weeks, at the rate of $15 per week, the court overlooked the fact that the evidence conclusively showed that during this period Roddy was able to work and earn his regular wage. The evidence demands a finding, as a matter of law that Roddy was unable during the 35 5/6 weeks to go about his work and thereby earn his regular weekly wages, but that, confined at home, he did receive his regular weekly wages by reason of the co-operation and assistance of his employer in putting other employees in his territory to work under his direction and secure business in his stead and on his behalf, from which he received the commissions or "wages" additionally to those he was able to "earn" by telephone while confined because of the injuries. Accordingly, the Industrial Board found that Roddy during the 35 5/6 weeks suffered a total loss of use of his left leg; that his earnings were "approximately the same as prior to the accident;" and that after this period of weeks he sustained a permanent, partial industrial handicap of 15 per cent. The evidence sustained these findings.
The Industrial Board, however, further found that, at $15 per week, Roddy was entitled to this rate for the 35 5/6 weeks, and at $2.25 per week he was entitled to this rate for a remaining period of 139 1/6 weeks, — the two periods resulting in a total of 175 weeks. We determine now whether these findings were correct.
Movants contend in effect that whatever may be the right of Roddy to compensation for the permanent, partial industrial handicap of 15 per cent. for the number of weeks provided by the statute, he received his wages during the 35 5/6 weeks and was not entitled to "compensation as for the temporary total loss of his member [leg] (during the healing period and before maximum improvement had been reached)." Movants say that the "language of Code section 114-406 and the history of the amendments to that section, will disclose that the legislature there was dealing only with `permanent, partial industrial handicap,' and that it was never the intention of the legislature to compensate an employee for the temporary loss of use of his leg during that time he was working and earning his regular wage."
The Code, § 114-406, provides for compensation for "permanent partial industrial handicap" in the loss of certain members of the *Page 637 body; compensation is provided for "permanent partial industrial handicap" in the "loss of a leg, 50 per centum of average weekly wages during 175 weeks." But under this section, the total loss of the use of a leg is equivalent to the loss of a leg.Travelers Insurance Co. v. Reid, 49 Ga. App. 317 (175 S.E. 414); Liberty Mutual Insurance Co. v. Clay, 180 Ga. 294,297 (178 S.E. 736). Therefore, for "permanent partial industrial handicap" in the total loss of the use of a leg "50 per centum of average weekly wages during 175 weeks" shall be paid. Inaddition to this period of 175 weeks, this section also provides: "In addition to the compensation provided in the schedule for permanent partial handicap, compensation for total incapacity for work, as provided in section 114-404, shall be paid, but compensation for total incapacity for work shall in no case be paid for a period longer than 10 weeks." The section therefore provides for two separable, distinct periods of compensation, but differently characterized. The first is considered as a healing period (Maryland Casualty Co. v.Smith, 44 Ga. App. 840, 844, 163 S.E. 247; ContinentalCasualty Co. v. Haynie, 182 Ga. 608 (2), 186 S.E. 683) and compensation must be as for "total incapacity for work, as provided in section 114-404," even though basically the injury is that of partial industrial handicap. The second period is grounded alone on permanent partial industrial handicap in the total or partial loss, or loss of the use of, certain specified members of the body, for which the Code, § 114-406, provides compensation specifically, and exclusively of all other compensation. Travelers Insurance Co. v. Reid, 49 Ga. App. 317,320 (175 S.E. 414). The first, or healing, period (whether full ten weeks or less) is not deductible from, but is in addition to, the second or industrial handicap period (LibertyMutual Insurance Co. v. Clay, supra), and is compensable as above indicated without regard to the question whether the injury giving rise to the industrial handicap is the total or thepartial loss of the use of the member. South v. IndemnityInsurance Co., 39 Ga. App. 47 (145 S.E. 45); Liberty MutualInsurance Co. v. Clay, supra. Beyond the first period, compensation as for "total incapacity for work," predicated on an injury giving rise to permanent partial industrial handicap is not extended; the character of the compensation then changes and becomes that specifically provided (Georgia Casualty Co. v.Jones, 156 Ga. 664, 119 S.E. 721) for the handicap.Travelers *Page 638 Insurance Co. v. Reid, and Maryland Casualty Co. v.Smith, supra. During the second period, if the loss of the use is total and constant, or partial and constant, compensation for the full period must be made accordingly (South v. IndemnityIns. Co., supra (1)), but if varying, then according to the actual condition of the injured member to be determined from time to time by the Industrial Board (Liberty Mutual Insurance Co. v. Clay, supra; Continental Casualty Co. v. Haynie, supra), but "An award should not be withheld for the purpose of adjusting the compensation on the basis of the condition of such member after maximum improvement has been reached." Liberty MutualInsurance Co. v. Clay and Travelers Insurance Co. v. Reid, supra.
In the instant case the Industrial Board erred in determining compensation for only 175 weeks, but under the foregoing principles should have applied compensation over a 10 weeks healing period and over a 175 weeks handicap period. The evidence required a finding that the employee sustained a total loss of the use of the leg for 35 5/6 weeks. Over the first 10 weeks compensation must be made as for "total incapacity for work;" the evidence required a finding that the employee was entitled to 10 weeks at $15 per week, or $150. Over the remaining 25 5/6 weeks compensation must be made as for permanent partial industrial handicap in the total loss of the use of the leg; the evidence required a finding that the employee was entitled to 25 5/6 weeks at $15 per week, or $387.50. Deducting 25 5/6 weeks from 175 weeks as the full period of industrial handicap, over the remaining 149 1/6 weeks the employee was entitled to compensation on a 15 per cent. basis as loss of the use of the leg, at $2.25 per week, or $335.62. Accordingly, the award should be in the total of $873.12 less $22.50 representing that sum which arose for the 10 weeks which the Industrial Board failed to apply, since no exceptions are made thereto by the plaintiff in error; leaving the award correctly to remain in the sum as found by the board, in the amount of $850.63.
But the employee for 35 5/6 weeks received his regular wages, by his partial ability to work by telephone and through the assistance of the employer as above indicated. Movants raise two questions: (1) Is the employee entitled to "compensation as for temporary total loss [of the use] of his member during the healing period and before maximum improvement has been reached?" Under *Page 639 the principles already discussed, whether the period in question is the healing period or the industrial handicap period, the answer is in the affirmative. (2) Does the receipt of the regular wages over the 10 weeks healing period and over the 25 5/6 weeks within the industrial handicap period, defeat recovery for those weeks when he was sustaining a "temporary [total] loss of the use of his leg during that time he was working and earning his regular wage?" As to the not over 10 weeks healing period, compensation on the basis provided is mandatory, without reference to the total or partial loss of use of the leg, and without reference to the full or partial ability to earn wages. This period is basically grounded on injury giving rise to industrial handicap, and though compensable as for total incapacity for work, as provided by the Code, § 114-404, it is in no way grounded on injuries characterized by Code, § 114-404, as producing total incapacity for work. As to the succeeding period of 25 5/6 weeks, running as part of the full 175 weeks compensable period, the total loss of the use of the leg for a number of weeks less than the full period in no way prevents such total loss of the use of the leg from being "permanent partial industrial handicap" within Code, § 114-406. Compensation is specifically for the permanent partial industrial handicap,as such (Georgia Casualty Co. v. Jones, supra), without regard to earnings in a greater or less degree than those at the time of the accident or whether earned from the same or other employers.
Castle v. Imperial Laundry Dry-Cleaning Co., 62 Ga. App. 184 (8 S.E.2d 547), is not authority to the contrary of the rulings herein made. Castle received an injury to his hand which totally incapacitated him for a period of two weeks and partially incapacitated him for a period of two weeks. At the end of the first two weeks he returned to work and his hand became cured within ten days. The court held that "the injury did notcome within the schedule of injuries in § 114-406 [italics ours]; for the injury was not the `loss of a hand,' but was an injury to the hand which was cured within ten days after he returned to work." During the first two weeks of total incapacity to work Castle was paid his regular wages. The court said further: "During the period of so-called `partial incapacity' which sometimes follows a `total incapacity' defined in § 114-404 . . the claimant . . received [his regular wages], "and this court had held: `Except as *Page 640 specifically provided in section 32 of the act [Code, § 114-406], such partial incapacity terminates when the employee again becomes capable of earning the same wage he earned before his injury.'"
It is clear that the injury Castle received, though to a member scheduled in Code, § 114-406, was not such as, during the statutory healing period of not over ten weeks, to give rise to a permanent partial industrial handicap either in the loss of, or the loss of the use of, such member. It is equally clear that the court was treating the injury only as that arising within the purview of and requiring compensation directly under the Code, §§ 114-404, 114-405. The loss of the hand would have instantly determined the injury to be that as for permanent partial industrial handicap. The total loss of the use of the hand may, or may not, classify the injury as that of permanent partial industrial handicap; it must become determined whether the injury inherently produces such handicap. It is obvious that Castle was not sustaining any "permanent partial industrial handicap." Accordingly, the fact that Castle received his regular wages over the two two-week periods, for an injury sustained in effect within the purview of Code, §§ 114-404 and 114-405, has no legal bearing upon the question in the instant case, whether the employee is barred, for the period of 35 5/6 weeks, from recovery of compensation under Code, § 114-406, because he earned and received his regular wages. The rule is not altered by the fact that part of the 35 5/6 weeks comprised the full statutory healing period, when during this period the injury was such as gave rise inherently to permanent partial industrial handicap.
The judgment in the case is hereby made to conform to the opinion now rendered on rehearing, and the superior court is hereby directed to remand the case to the Industrial Board with direction that it enter its award to conform to the judgment of this court, to wit: 10 weeks (healing period) at $15 per week, or $150; 25 5/6 weeks at $15 per week, or $387.50; and 149 1/6 weeks at $2.25 per week, or $335.63; or an aggregate of $873.12 less $22.50 deductible for reasons already indicated, or the final sum of $850.63 as the definite amount of the award.
Judgment of reversal, as modified, adhered to, withdirection. Broyles, C. J., and MacIntyre, J., concur. *Page 641