Austin Bros. Bridge Co. v. Whitmire , 31 Ga. App. 560 ( 1924 )

Luke, J.

(After stating the foregoing facts.)

From prior decisions of this court, and from the decisions of other jurisdictions having laws similar to the Georgia workmen’s compensation act, the rule seems to be well settled that, although such acts are in derogation of the common law, yet, in view of their beneficent purpose and remedial character, they are to be so liberally and broadly construed as to effect their general purpose in every instance in which the language is such as to render judicial interpretation necessary. Jones v. Georgia Casualty Co., 30 Ga. App. 207 (117 S. E. 467); New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786); 28 R. C. L. 739, 755.

The amount of compensation to which this employee is entitled (which is the whole case in so far as its merits are concerned) turns mainly upon the question: What constitutes the periods of “total incapacity” and of “partial incapacity,” under the facts of this case and within the meaning of the Georgia workmen’s Compensation act? The statute itself does not expressly define either of these periods, except as to the partial incapacity resulting solely from the specific injuries scheduled in section 32 of 'the act. This case, however, involves some injuries which are not scheduled in section 32, the most serious of which is the injury to the employee’s head, as well as some which are scheduled in section 32, all of which together render him permanently unfit for.a resumption of his former employment, but not wholly incapacitated for every other kind of work. Such is the commission’s finding of fact, and is the only inference reasonably and fairly deducible from the evidence in point.

The answer to the foregoing question must be found in sections 30, 31, 33, and 33 of the workmen’s compensation act. In Jones v. Georgia Casualty Co., supra, this court construed sections 30, 31, and 33 of the act with respect to the amount of compensation payable where the periods of disability are determined. That decision does not, however, deal with the rules for determining either of such periods. But from that decision and the express provisions of the act, it appears that, with these periods of disability determined, the rules for determining the amount of compensation payable are, briefly stated, as follows: For the period of total disability, whether resulting from injuries specifically mentioned in section 33 or from those covered only by section 31, the employee is entitled to the compensation provided by section 30 of the act. For the succeeding period of partial disability, if resulting solely from one or more of the injuries specifically mentioned in section 33, the compensation shall be as provided by section 33; if resulting solely from such injuries as are covered only by section 31,. then thé compensation shall be as provided by section 31; but if resulting in part from injuries described only in section 31 and in part from injuries specifically mentioned in section 33, then compensation shall be allowed for both classes of injuries, the amount allowed for each injury being dependent upon the section of the act providing for it and the aggregate amount being kept within the maximum allowed by .the statute. 38 R. C. L. 819 et seq.

. In determining what constitutes the periods of total and partial disability respectively, it must be borne in mind that the “capacity” with which the law is concerned is “earning capacity.” This plainly appears from sections 31 and 33 of the act. As to the particular injuries mentioned in section 33, the amount of compensation is arbitrarily fixed by that section. But for the partial disability resulting from that class of injuries covered only by section 31 the employee is entitled to no compensation whatever if he is able to obtain different employment as remunerative as that in which he was engaged at the time of Ms injury, and is entitled only to a reduced compensation if he is able to procure any other employment suitable to his impaired capacity at any reasonable wage; and this is so regardless of such personal discomforts and losses of physical capacity as he may suffer as a result solely of such injuries. By section 33 of the act, it is expressly provided that “If an injured employee refuses employment procured for him suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the industrial commission such refusal was justified.”

From a consideration of sections 30, 31, 32, and 33 of the act together and in connection with their context, an injured employee’s different periods of disability may be stated as follows: The incapacity for work resulting from such an injury is total not only so long as the injured employee is unable to do any work of any character, but also while he remains unable,' as a result of his injury, either to resume his former occupation or to procure remunerative employment at a different occupation suitable to his impaired capacity. Such period of total incapacity may be, and usually is, followed by a period of partial incapacity, during which the injured employee is able both to procure and to perform work at some occupation suitable to his then-existing capacity but less remunerative than the work in which he was engaged at the time of his injury. That situation determines the period of his partial incapacity. Except as specifically provided in section 32 of the act, such partial incapacity terminates when the employee again becomes capable of earning the same wage he earned before the injury, whether at the same or at a different occupation, and without regard to such personal inconveniences as may result to him solely from his injury and are not caused or aggravated by his new employment. Before an employer can claim a reduction of compensation under the provisions of section 33 it must appear that the injured employee has refused employment procured for him suitable to his then-existing capacity. See also 28 R. C. L. 819-820.

For these reasons, among others, section 45 of the act provides, in effect, that an award of compensation shall never become final until fully paid, and expressly provides that the industrial commission may at any time review any award, either on its own motion or at the instance of any party to the controversy, on the ground of change in condition.

What, then, is the amount of compensation to which Whitmire is entitled? According to the uncontradicted evidence his incapacity was total from the date of the accident, December 28, 1921, to the date of the hearing, September 12, 1922, there being no contention that emplojunent suitable to his impaired capacity had been procured for him, and he having testified, without contradiction, to his repeated efforts to engage in other work, and to being unable to continue at it because of the pain it produced in his wrist wound, and to his being still unable to find any employment that was suited to his impaired capacity. For that period he was therefore entitled to the compensation provided by section 30 of the workmen’s compensation act. Iiis prior earning capacity being $24 per week, the amount of compensation was properly fixed at $12 per week, but the period for which it was allowed by the commission was too short.

When that period of total incapacity will be (or has been) succeeded by partial incapacity remains to be shown upon a further investigation of the case, or a review of the award, by the industrial commission. At that time the compensation to which Whit-mire is entitled for partial incapacity, if any, may be fixed in accordance with this opinion.

Does the judgment of the lower court recommitting the controversy to the industrial commission, without direction or detailed opinion, sufficiently comply with the statute to withstand the assignment of error specially urged against it? By section 59 of the workmen’s compensation act it is provided that, upon a review of the findings of the industrial commission, the superior court may set the same aside upon any one or more of five grounds therein specifically stated, or may enter the proper judgment upon the findings, or, in the language of the statute, “the court may recommit the controversy to the commission for further hearing or proceedings in conformity with the opinion and judgment of the court” (italics ours). Certainly no opinion or direction is required as a part of a final judgment in such case, nor could it serve any greater purpose in connection with such a final judgment than with a final judgment in any other case for stated sums of money. But where, as in this case, the finding of the commission is set aside, upon the general statutory grounds, and, in addition thereto, the controversy is recommitted to the commission for further hearing or proceedings, it would seem from the very nature of the case, as well as from the express terms of the statute, that some form of direction is a practical, as well as a legal, necessity. No better illustration of the usefulness of this statutory provision is needed than that afforded by the facts of this case. The judgment of the superior court merely holds: “ (a) that the facts found by the industrial commission do not support the award,” and “(b) that the order of the commission is contrary to law,” and thereupon recommits the controversy for further consideration by the commission. In what particular essential or essentials do the facts fail to support the award? On what particular point or points did the commission misinterpret the law? The judgment recommitting the case to the commission affords no answer to either of these questions. Without an answer to these questions the commission may be, and likely would be, in no better position to correct its errors upon a second hearing than it was to avoid them upon the first. It is to meet this situation that the statute requires that a judgment recommitting such a controversy be accompanied by an opinion. Without an opinion specifically pointing out the errors of the commission, or an order directing the commission specifically what to do, a judgment of the superior court recommitting such a controversy is incomplete.

No other error appears in the judgment. Without deciding what the result of such an error might be in cases hereafter brought to this court, under the particular facts of this case, direction is given that the judgment of the lower court be so amended as to advise the commission of the particular errors to be corrected upon a reconsideration of the case by it; and the judgment will thereupon stand affirmed.

Judgment affirmed, with direction.

Broyles, O. J., and Blood-worth, J., concur.