Opinion
6 Div. 883.
April 19, 1923.
Petition for Certiorari to Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
Smith Morrow, of Birmingham, for petitioner.
The permanent partial disability and temporary total disability in this case being concurrent and overlapping, plaintiff should have been awarded compensation for disability extending over the greatest number of weeks only, and not for both.
Goodwyn Ross, of Bessemer, opposed.
The judgment rendered was proper and correct.
Under the rule laid down by this court in Ex parte Diniaco Bros., 207 Ala. 685, 93 So. 388, for awarding compensation under the Workmen's Compensation Act (Acts 1919, p. 206) in cases where there is a total temporary disability, which is concurrent, in whole or in part, with a permanent partial disability, the award in this case for the plaintiff's permanent partial disability is erroneous, and must be set aside. The period of compensation for the total permanent loss of a foot is 125 weeks. The proportionate period for a 35 per cent. loss of that member is 43.75 weeks. Deducting the 24 weeks for which the plaintiff has been compensated as for total temporary disability, there remains a period of 19.75 weeks, for which compensation should be awarded at the rate of $5.50 per week.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.