Congoleum Nairn, Inc. v. Brown

Boxd, C. J,. delivered the opinion of the Court. Brown, the appellee, was awarded by the State Industrial Accident Commission compensation for permanent partial disability from the severance of the whole of the third and fourth fingers, and two-thirds of the second finger, of his right hand. And, on appeal by him, the action of the commission was reversed, and compensation was allowed for permanent total disability as a consequence of the combined effect of this last injury and another one sustained to his other hand four years earlier. The appeal of the employer and insurer to this court presents for review an exception to the allowance by the trial court of an issue framed by the claimant to be.submitted to the jury, and an exception to rulings of the court on prayers for instructions; and there is also a motion in arrest of judgment on the ground of inconsistency between the issues and the verdict.

The claimant was a man sixty-two years of age. Thirty-eight or forty years ago he had lost the lower part of one leg, below the knee joint, and he wore an artificial portion of leg in its place. In May, 1921, while working for the same employer, Congoleum Nairn, Inc., he lost the index finger ²⁸⁷ and second finger from bis left band, and be received compensation for permanent partial disability resulting from tbat loss. His most recent accident was in June, 1928.

And, as has been said, be was awarded by tbe commission compensation for permanent partial disability resulting from it, and, by tbe trial court, compensation for total disability. At tbe bearing in court, physicians testified tbat tbe right band, last injured, was still useful for some pursuits, which they specified; and Brown, on tbe other band, testified tbat tbe fingers remaining were stiff and of no practical use, and tbat, besides, in view of bis maimed condition and bis age together, further employment was practically unobtainable. Tbe objection to tbe contested issue submitted to tbe jury, and tbat to a first prayer of tbe claimant’s which was granted, are tbe same. Tbe issue, tbe claimant’s eighth, was whether tbe injury to tbe right band rendered him totally incapacitated from performing “such work as be was accustomed and qualified to perform, at tbe time of tbe accident.” And on bis first prayer tbe jury were instructed tbat they might find tbe permanent total disability referred to in tbe eighth issue if they found tbat previous to tbe last accident tbe claimant was able to do tbe regular work assigned to him, but after tbat accident “was totally and permanently incapacitated to do said work or any other work tbat be was accustomed and qualified at the time of the accident to perform.” The objection is tbat total disability in tbe Compensation Act means incapacity to do further work of any kind, not only of the kind be was accustomed and qualified to perform at tbe time of tbe accident, as tbe issue and tbe prayer assumed.

And we think the objection well taken. Tbe statute, Code, art. 101, sec. 36, does not contain in terms tbe addition or qualification to tbe total disability provided for. In respect to permanent partial disabilities other than those specified, the compensation is, by tbe express terms, to be measured by subsequent wage-earning capacity “in tbe same employment or otherwise”; and it seems unlikely tbat a different measure, or only wage-earning capacity in tbe same employment, ²⁸⁸ should be intended for total disability. If it should be, then ability which was merely reduced by the accident might be taken as totally lost, and a workman who still possessed a high degree of capacity might be entitled to compensation for total disability because no longer capable of performing the kind or grade of work he was previously capable of performing.

Or, in this' particular case, the claimant, although he may have been considered by the jury as able to perform the duties of some' occupations as testified, was, under the instruction, to be compensated as totally disabled if the work for which he was previously qualified was of a higher grade or materially different in other respects. In the opinion of this court that was not the purpose of the compensation statute. Downey, Workmen’s Compensation, 43; Schneider, Workmen’s Compensation, 1046; Grammici v. Zinn, 219 N. Y. 322 ; Myers v. Louisiana Co., 140 La. 937 ; Connelly’s Case, 122 Me. 289 ; Leitz v. Labadie Co., 211 Mich. 565 . Error is therefore found in the trial court’s rulings on this point.

The eighth issue having been granted, and evidence having been taken on it, the employer and insurer objected that the evidence was not legally sufficient to enable the jury to find the total disability supposed, and that therefore the issue must be answered, “Efo.” The claim for a classification of total disability as a consequence of the loss of fingers in 1924 and in 1928, combined, is based in argument on the provision-in the Code, art. 101, sec. 36, that “loss of use of both hands * * * shall, in the absence of conclusive proof to the contrary, constitute permanent total disability.” And the objection to the classification in this case is, more specifically, that the undisputed evidence showed the use of neither hand had been lost, and that, if the use of both had been lost, the results of the two accidents in which the losses occurred could not be combined to form a loss from the later accident for which compensation is now to be made. A prayer of the employer and insurer marked “A” asked an instruction that the jury must answer “ETo” to the claimant’s eighth issue, be ²⁸⁹ cause on the undisputed evidence there was some use left in the right hand, and a fourth prayer requested that the same answer to the issue be directed because there was no legally sufficient evidence to show that the claimant suffered any injury on the date of the last accident to render him totally and permanently disabled. While there was evidence of some usefulness left in the right hand, and testimony that the claimant could still engage in some employments with his thumb 'and forefinger, this court is of opinion that the question of ability would fairly admit of another answer, from the knowledge which a •jury