I find myself unable to agree with the majority and respectfully dissent.
The industrial commissioner and the district court found that the second operation was due to the original injury, and with this I agree. In fact, it seems to me appellants so concede in their brief and argument. I quote:
"Contrary to the statement made by the Deputy Industrial Commissioner in his Reopening Decision the appellants do not contend that the second operation was not due to the original injury. The appellants admit and the record so shows that the Chopart's stump was unsatisfactory; that good surgery dictated that the entire foot be amputated at a point of election calculated to give the claimant a serviceable foot; that whatever the ultimate loss may be it was attributable to the original injury."
The second operation was necessitated by the fact that a serviceable foot could not be given this claimant without it.
The issue in this case does not seem to be in dispute. Appellant states it:
"Was more than the claimant's right foot amputated at the time of the second amputation within the true meaning and intent of Section 1396 (14)?"
It is stated in the same way by the industrial commissioner, although he uses different words in so doing. Paragraph 14 of section 1396, 1939 Code, is the section of the Workmen's Compensation Act that provides for 125 weeks for the loss of a foot. Then follows paragraph 15 of section 1396, which states:
"The loss of two-thirds of that part of a leg between the hip joint and the knee joint shall equal the loss of a leg, and the *Page 428 compensation therefor shall be weekly compensation during two hundred weeks."
Paragraph 20 of section 1396 of the 1939 Code is as follows:
"In all other cases of permanent partial disability, the compensation shall bear such relation to the periods of compensation stated in the above schedule as the disability bears to those produced by the injuries named in the schedule."
Thus we find that paragraph 20 provides that in all cases of partial permanent disability not listed, the compensation allowed shall bear such relation to the period of compensation stated as the disability bears to those produced by the injuries specifically named. Claimant contends that he has lost more than a foot and less than the legal leg, and is entitled to additional compensation, the amount thereof to be determined by applying paragraph 20 to ascertain the per cent of the loss of the leg.
It seems to me that this court has already determined this question. In the case of Pappas v. North Iowa Brick Tile Co.,201 Iowa 607, 611, 206 N.W. 146, 148, this court said:
"By reference to Paragraphs 12 and 13 of the schedule, Section 2477-m9 (j), it is seen that the compensation for the loss of a hand is for 150 weeks, and for the loss of an arm two thirds of the way up on the upper bone, it is for 225 weeks. It therefore follows that in the case at bar the compensation must be for less than 225 weeks. The statute provides (Section 2477-m9 [j]) that, in such cases as are not specifically provided for in the schedule, such compensation shall be paid as the loss sustained bears to the enumerated losses; and therefore it became the duty of the commissioner to determine the compensation when more than the hand has been taken, but less than an arm. In other words, he is to determine how much should be added to the hand schedule, and how much deducted from the arm schedule, in arriving at the compensation to be allowed. The commissioner determined that 200 weeks, or 8/9ths of the time named in Paragraph 13, should be the basis."
If we substitute foot for hand and leg for arm in the above quotation, the statement seems entirely applicable to the case at bar. *Page 429
Claimant has suffered, due to the injury which he received, an actual loss of the foot and part of the leg. He has not suffered the whole loss of the leg for the reason that an amputation or loss of two thirds of that part of a leg between the hip joint and the knee joint is required to equal the loss of a leg. In this case the amputation was at a point about seven inches below the knee joint, or through the upper part of the middle third of the lower leg. The loss is more than the loss of a foot and less than the loss of a leg. The industrial commissioner reached the conclusion, and the district court affirmed him, that a fair allowance to the claimant would be an increase of 25 weeks over the compensation period formerly allowed, or one third of the aforesaid variance, which seems to me fair and reasonable, and I would affirm the lower court.
I am authorized to state that JUSTICES OLIVER and GARFIELD join in this dissent.