Opinion
No. 28912
Decided April 29, 1942.
Workmen's compensation — Loss of leg — Section 1465-80, General Code — Two-thirds of average weekly wage for 175 weeks — Payable in addition to temporary total, temporary partial and $3,750 maximum allowances — Period of 175 weeks begins to run from amputation, when.
1. Under Section 1465-80, General Code (110 Ohio Laws, 225), the specific allowance of sixty-six and two-thirds per cent of the average weekly wages during one hundred and seventy-five weeks for the loss of a leg is in addition to the compensation allowed for temporary total disability and is not limited to or included in the maximum of $3,750 for impairment of earning capacity during the continuance of partial disability.
2. When a claimant is entitled to compensation for loss of a leg by amputation more than a week after injury is sustained, the period of one hundred and seventy-five weeks begins to run immediately upon amputation.
IN MANDAMUS.
This proceeding in mandamus, brought originally in this court, is submitted finally on a general demurrer to the petition. The essential facts alleged in the petition may be thus stated:
The relator, Charles Young, was injured in the course of his employment on May 8, 1931, while he and a fellow workman, employees of Harry Bourke, were carrying a crosstie. The fellow workman dropped his end of the crosstie, the relator was thrown down and "the end of the crosstie struck * * * [him] on the right leg." As a direct result of being so thrown down and struck, osteomyelitis developed in that leg below the knee and in time the disease became chronic. Numerous surgical operations were performed on the injured leg and small pieces of bone were removed therefrom. In the latter part of 1937, osteomyelitis developed in the humerus or large bone of his right arm as a result of such injury and the osteomyelitis in his right leg and thereupon the relator underwent an operation on his right arm.
Prior to September 22, 1931, relator filed with the respondent a claim for compensation for disability arising from such injury and was awarded and received compensation for temporary total disability to July 31, 1936 (the date shown in the order hereinafter quoted is January 31, 1936), in the amount of $3,750 and for the impairment of earning capacity from July 31, 1936, to March 2, 1941, in the amount of $3,350. In addition he received medical and hospital expenses for the treatment of osteomyelitis in his right leg and right arm.
In September, 1938, as a direct result of such injury, the femur of his right leg became affected and his attending physician asked respondent for authority to amputate it. After some treatment such authority was given and the right leg was amputated about two inches above the knee on or about July 18, 1940. The wound resulting from the amputation healed on or about March 2, 1941.
At the time of relator's injury his average weekly wage was $21.
The respondent gave further consideration to relator's claim and made an order on March 25, 1941, which reads as follows:
"It appears from proof of record herein that as a result of the injury in question claimant has heretofore been paid temporary total compensation from date of injury to January 31, 1936, in the maximum amount of $3,750; that thereafter claimant has been awarded temporary partial compensation up to the present time, his present award not expiring until March 2, 1941, at which time claimant will have been paid $3,350 for partial disability.
"It further appears that the claimant submitted to operative procedure on June 18, 1940, at which time the injured right leg was amputated, and that according to reports of recent examination, the site of the amputation is now well healed, and the claimant is ready for an artificial appliance, and that his disability at the present time consists of loss of the right leg by amputation. The commission further finds that under schedule for loss of members in effect at the time of the injury in question, claimant would be entitled to 175 weeks for the loss of leg, but that to award the claimant such amount of compensation would result in the compensation for partial disability exceeding the maximum of $3,750 as provided by Section 1465-80.
"The commission, therefore, orders that the claimant be paid permanent partial compensation for the disability resulting from the amputated leg, at two-thirds of his average weekly wage, beginning as of about February 6, 1941, and continuing until the maximum amount of $3,750, in the aggregate, for partial disability, has been paid.
"This upon motion of Mr. Blake, seconded by Mr. White, and voted upon as follows: Mr. White aye. Mr. Blake aye.
"On above motion, Mr. Knisley voted nay, with the following dissenting opinion:
"I wish to dissent from the opinion of the majority, as expressed in its order with reference to the limitation of the authority of the commission to make an award for 175 weeks for the amputation of the claimant's leg on June 18, 1940, under the provisions of Section 1465-80, General Code.
"I hold that in case of injury, where compensation has been paid for temporary total disability and for temporary partial disability, in part or in full, and the said injury then results in the loss of the injured leg, it is mandatory on the commission that it pay compensation for the full number of 175 weeks, as provided by Section 1465-80, General Code, as in effect at the time of this injury."
Within thirty days relator filed an application for rehearing which was dismissed by the respondent.
The relator seeks a writ of mandamus to compel the respondent to grant him compensation in the amount of $14 a week for 175 weeks from and after March 2, 1941, for loss of his right leg by amputation as a direct result of his injury.
Mr. Joseph H. Harper and Mr. Stanley S. Stewart, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for respondent.
These questions are raised by the general demurrer to the petition: (1) Is a claimant, who has received the maximum of $3,750 for temporary total disability and has also been allowed and paid $3,350 ($400 less than the maximum) for partial disability, resulting in the impairment of his earning capacity, entitled further to the full allowance for the loss of a leg from the same injury, amounting, in this case, to $2,457 (2) Is the commencement of the allowance for loss of the leg deferred until the end of the healing period after amputation?
A determination of the problems requires a construction of Section 1465-80, General Code, effective January 1, 1924 (110 Ohio Laws, 225), which in its material parts reads:
"In case of injury resulting in partial disability, the employee shall receive sixty-six and two-thirds per cent of the impairment of his earning capacity during the continuance thereof, not to exceed a maximum of eighteen dollars and seventy-five cents per week, nor a greater sum in the aggregate than thirty-seven hundred and fifty dollars, and such compensation shall be in addition to the compensation allowed to the claimant for the period of temporary total disability resulting from such injury. In cases included in the following schedule, the disability in each case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified herein, and shall be in addition to the compensation allowed to the claimant for the period of temporary total disability resulting from such injury, to wit: * * *
"For the loss of a leg, 66 2/3 per cent of the average weekly wages during one hundred and seventy-five weeks. * * *
"The amounts specified in this clause are all subject to the limitation as to the maximum weekly amount payable as hereinbefore specified in this section."
This section is divided into two parts which are wholly separate. The first refers to partial disability and the second to a schedule in which are enumerated certain specific disabilities for which compensation is paid at a fixed rate for a specified time. In this schedule is enumerated the loss of a leg for which compensation is allowed to a claimant amounting to 66 2/3 per cent of his average weekly wages during 175 weeks. The closing paragraph of the section makes all the allowances provided for in the schedule subject to the maximum weekly amount specified in the first part, namely, $18.75 per week, but contains no reference to the aggregate maximum of $3,750. Such language clearly shows the intent of the Legislature to be that such aggregate maximum should not apply to the disabilities specifically enumerated in the schedule. Therefore the maximum of $3,750 provided for partial disability has no application to the amount of compensation payable for the loss of a leg. Nor does the previous allowance and payment of $3,750 for temporary total disability have any bearing for the simple reason that the statute expressly provides that compensation specified in the schedule shall be "in addition to the compensation" allowed for temporary total disability. The relator is therefore entitled to receive the full amount specified in the schedule for the loss of his leg.
When does an allowance for loss of a leg begin to run?
Relator's contention is that the time for commencement is the end of the healing period after amputation.
Relator has received the maximum for temporary total disability; so that kind of allowance need not be considered in this connection. He has been allowed compensation for partial disability from a stated time in 1936 to March 2, 1941 — the end of the healing period. This allowance covered the time between the amputation and the time the wound therefrom healed — a period of over seven months. The question arises whether, during these seven months and more, he was entitled to both the weekly compensation for impairment of earning capacity and the specific weekly allowance for the loss of his leg. During the period he was unable to work after the amputation he would not be entitled to compensation for partial disability based on impairment of earning capacity because his disability was total, not partial, and he had no earning capacity. The amounts received by him during that period were therefore improperly paid to him and the respondent in paying compensation hereafter must take that fact into consideration and make proper deductions so that relator will receive only that to which he is entitled.
Such deductions, however, should be made with due regard to relator's rights as well as respondent's duties. After the leg was taken off, relator could never again receive compensation for partial disability arising solely from the loss of his leg. After full recovery so that he could work again, he would be entitled to compensation for partial disability directly caused by the original injury but not such as arose from the amputation of the leg. That is to say that if the same injury caused osteomyelitis in his right arm, which impaired his earning capacity, he would, after he was able to work again, be entitled to compensation for that partial disability.
The statute does not authorize or permit the postponement of the time that compensation for the loss of a leg begins to run except in case the amputation takes place within a week from the injury; then compensation begins to run upon the expiration of the first week after the injury. Section 1465-78, General Code. In the instant case compensation for loss of the leg shall be awarded as beginning not after the lapse of the healing period but upon amputation. With respect to the payments for partial disability during the healing time the respondent will make such order of adjustment as the circumstances require.
The demurrer to the petition is overruled and, the respondent not desiring to plead further, a writ of mandamus is allowed directing the commission to grant the specified compensation for loss of leg for a period of one hundred and seventy-five weeks beginning with the date of amputation.
Writ allowed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.