Evans v. ASHEVILLE CITIZEN TIMES COMPANY , 246 N.C. 669 ( 1957 )

100 S.E.2d 75 (1957) 246 N.C. 669

Stokely EVANS
v.
ASHEVILLE CITIZEN TIMES COMPANY and Indemnity Insurance Company of North America.

No. 101.

Supreme Court of North Carolina.

October 9, 1957.

Meekins, Packer & Roberts, Asheville, for defendants-appellants.

Uzzell & DuMont, Edward L. Loftin, Asheville, for plaintiff-appellee.

WINBORNE, Chief Justice.

What is the correct measurement of compensation, under the North Carolina Workmen's Compensation Act, for permanent partial disability? Appellants, the defendants, contend, and we hold properly so, that the question is answered by the provisions of G.S. § 97-30. On the other hand, appellee, the plaintiff, contends that the provisions of Rule XVI adopted by the North Carolina Industrial Commission are properly applicable.

G.S. § 97-30 provides that "Except as otherwise provided in § 97-31, where the incapacity for work resulting from injury is partial, the employer shall pay, or cause to be paid * * * to the injured employee during such disability, a weekly compensation equal to 60 per centum of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter * * *."

(At time of the injury to back of plaintiff here involved such injury was not included in G.S. § 97-31. But see Chap. 1026, Sec. 7, of 1955 Session Laws, which extended provision of G.S. § 97-31, effective July 1, 1955.)

The Workmen's Compensation Act, G.S. § 97-2(i), provides that when used in this article, unless the context otherwise requires * * * the term "disability" means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.

And in the light of the provisions of these statutes, this Court declared in Hill v. DuBose, 234 N.C. 446, 67 S.E.2d 371, 372, in opinion by Devin, C. J., a case treating the subject of permanent partial disability, that "compensation must be based upon loss of wage-earning power rather than the amount actually received" by the employee. And it is there stated that "it was intended by the statute to provide compensation only for loss of earning capacity." Therefore, in accordance with G.S. § 97-30 plaintiff is entitled to receive after 9 January, 1956, the end of the healing period, a weekly compensation equal to sixty per centum of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, as set forth in Hill v. DuBose, supra.

The record shows findings of fact: (1) that his average weekly wages at time of injury were $55; (2) that plaintiff reached end of healing period on January 9, 1956; and (3) that he has 25 per cent permanent partial disability or incapacity for work resulting from the injury.

These cases cited and relied upon by appellee: Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438; Murray v. Nebel Knitting Co., 214 N.C. 437, 199 S.E. 609, and Smith v. Swift & Co., 212 N.C. 608, 194 S.E. 106, are distinguishable in factual situation from case in hand.

As to contention of appellee, it is true that G.S. § 97-80 provides that the Commission may make rules for carrying out the provisions of the Workmen's Compensation Act, but it is expressly provided that the power may not be exercised when the rule is inconsistent therewith. Here it is seen that Rule XVI is inconsistent with G.S. § 97-30.

For reasons stated above the proceeding will be remanded to the North Carolina Industrial Commission to the end that award of compensation to plaintiff may be made in accordance with this opinion.

Error and remanded.