Calumet Foundry & Machine Co. v. Mroz , 80 Ind. App. 619 ( 1923 )

Remy, C. J.

This is an appeal from an award by the Industrial Board. So much of the finding of the board as is essential to a determination of the question presented is, in substance, as follows: On January 4, 1921, appellee received an injury arising out of and in the course of his employment by appellant, which resulted in the permanent total loss of the sight of his right eye; that about seventeen years before, and when appellee “was not in the employment” of appellant, he received an injury which resulted in the permanent and complete loss of the vision of his left eye; and that, as the combined result of the two injuries, appellee is totally blind, and is permanently and wholly disabled for the performance of manual labor. On this finding, the board by a majority of its members awarded compensation at the rate of $13.20 per week for a period of 500 weeks. That the award is contrary to law, is the error assigned.

This is the second appeal of this case. Calumet Foundry, etc., Co. v. Mroz (1922), 79 Ind. App. 305, 137 N. E. 627. On the former appeal, an award of compensation for three hundred fifty weeks was reversed, as being contrary to law. The question presented by this appeal was not in issue. It follows that any statements embraced in the opinion rendered by this court on the former appeal, which' bear upon the issue now presented, are obiter, and are not controlling as the law of the case. Small v. Buchanan (1905), 165 Ind. 549, 553, 76 N. E. 167; Board, etc., v. Adler (1922), 77 Ind. App. 296, 133 N. E. 602.

It is. contended by appellant that, on this finding, the award should have been for 150 weeks, and no more. The question for determination is one of statutory construction, requiring a consideration of §§31, 33 and 35 of the Workmen’s Compensation Act. Acts 1915 p. 392, §8020l et seq. Burns’ Supp. 1921, as amended Acts 1919 p. 162. No other sections of the compensation laws are in any way involved. So much of §31 as it is necessary to consider is as follows: “For injuries in the - following schedule the employe shall receive, in lieu of all other compensation on' account of said injuries, a weekly compensation of fifty-five per cent, of his average weekly wages for the periods stated, for said injuries, respectively to wit: * * . * (d) For injuries resulting in permanent total disability five hundred weeks, (e) For the loss of both hands, or both feet, or the sight of both eyes, or any two of such losses in the same accident, five hundred weeks, (f) For the permanent loss of the sight of an eye or its reduction to one-tenth of normal vision with glasses one hundred and fifty weeks. * * * (h) In all other cases of permanent partial impairment, .in the discretion of the Industrial Board, not exceeding five hundred weeks.”

Sections 33 and 35 are as follows: “33. If an employe has sustained a permanent injury in another employment than that in which he received a "subsequent permanent injury by accident, such as specified in section 31, he shall be entitled to compensation for the subsequent injury in the same amount as if the previous injury had not occurred.”

“35. If an employe receives a permanent injury such as specified in Section 31, after having sustained another permanent injury in the same employment he shall be entitled to compensation for both injuries but the total compensation shall be paid by extending the period and not by increasing the amount of weekly compensation.

“When the previous and subsequent permanent injuries result in total permanent disability, compensation shall be payable for permanent total disability, but payments made for the previous injury shall be deducted from the total payment of compensation due.”

Under the facts found by the board, appellee suffered no physical injury on January 4, 1921, except the permanent loss of the sight of one eye. It will be observed that the board did not find that the injury for which compensation is asked resulted in total permanent disability. On the contrary, the board specifically found that it was by reason of the combined result of the injury for which compensation is asked and the injury received seventeen years before that appellee was totally disabled. As held by this court in Stevens v. Marion Machine, etc., Co. (1921), 77 Ind. App. 28, 133 N. E. 23, it is inaccurate to say that the last injury- resulted in total blindness. The specific finding of the board that total permanent disability was the combined result of the two injuries would preclude any inference that the last injury caused the total disability. It must be kept in mind that the compensation sought in this case is for the last injury. For the last injury, the injury of January 4, 1921, which resulted in the loss of but one eye, clause (f) of §31 provides compensation for the definite period of 150 weeks. There is no other provision of the compensation act which is applicable. Section 35 does not apply for the reason that there is no finding that appellee lost the sight of both eyes in the same employment. Clause (e) of §31 has no application, because the sight of both eyes was not lost in the same accident. Clause (h) does not apply because the permanent loss of the sight of an eye is not a permanent partial impairment other than those mentioned in the preceding clauses of §31. It is contended by appellee, however, and the board held, that clause (d) does apply. The theory is that since appellee had previously lost the sight of his left eye, the loss of the right eye on January 4, 1921, resulted in total blindness—total disability within the meaning of clause (d). Under the rule many times laid down by this court, that the compensation act must be given a liberal construction in favor of the employe, there might be merit in this contention, were it not for the fact that §33 prohibits it. Section 33 expressly, and in unmistakable language, provides that if an employe had previously sustained “a permanent injury in another employment than that in which he received a subsequent permanent injury by accident,” then and in that event such employe shall receive compensation “for the subsequent injury in the same amount as if the previous injury had not occurred.” In the instant case, appellee had lost the sight of his left eye seventeen years before, in another employment, and the compensation to be awarded him must be the same as if the previous injury had not occurred ; that is, for 150 weeks as provided by clause (f). The language of §33 is clear and unambiguous, and must be held to mean what it plainly expresses. There is no room for construction. Cheney v. State, ex rel. (1905), 165 Ind. 121, 74 N. E. 892.

In support of the award, appellee in his brief has cited many compensation cases from the courts of appeal of other states. We have examined all of these cases, and we have carefully examined the compensation acts which were under consideration by the courts in each of the cases cited, and find that in not one of them did the court have under consideration an act containing a provision corresponding to §33 of the compensation act of this state.

We hold that under the finding of the Industrial Board the award for 500 weeks is contrary to law. Stevens v. Marion Machine, etc., Co., supra.

The award is reversed, with instructions to enter an award at the rate of $13.20 per week for a period of 150 weeks.