Cates v. Hunt Construction Co. ( 1966 )

148 S.E.2d 604 (1966) 267 N.C. 560

Robie Willard CATES
v.
HUNT CONSTRUCTION CO., Inc., Employer, and Aetna Casualty & Surety Co., Carrier.

No. 770.

Supreme Court of North Carolina.

June 16, 1966.

Powe, Porter & Alphin, by Oliver W. Alphin, Durham, for plaintiff appellant.

Spears, Spears & Barnes, by Alexander H. Barnes, Durham, for defendant appellees.

HIGGINS, Justice.

At the time of plaintiff's injury, June 18, 1962, the Workmen's Compensation Act, G.S. § 97-31, provided a list of compensable injuries and the method for determining the rate and period of compensation: "In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement."

Subsections (1) through (20) neither included compensation for disfigurement nor for the loss of, or injury to, an internal organ of the body. However, Subsection (21) provided: "In case of serious facial or head disfigurement, the Industrial Commission shall award proper and equitable compensation not to exceed three thousand five hundred dollars." Subsection (22) provided:

"In case of serious bodily disfigurement, including the loss of or permanent injury to any important external or internal organ or part of the body for which no compensation is payable under the preceding subsections, but excluding the disfigurement resulting from permanent loss or permanent partial loss of use of any member of the body for which compensation is fixed in the above schedule, the Industrial Commission may award proper and equitable compensation not to exceed three thousand five hundred dollars ($3,500.00); provided, that the Industrial Commission may not make an award for permanent partial or permanent total disability, and also for bodily disfigurement resulting from loss of, or permanent injury to, any internal organ, the loss of which, or the injury to which resulted in such permanent partial or permanent total disability."

Subsection (21) is mandatory in providing that the Industrial Commission shall award proper and equitable compensation, not to exceed $3,500.00 for serious facial or head disfigurement. Subsection (22), as of June 18, 1962, provided, "[T]he Industrial Commission may award proper and equitable compensation not to exceed three thousand five hundred dollars ($3,500.00)" in case of serious bodily disfigurement, "including the loss of or permanent injury to any important external or internal organ or part of the body * * *."

The hearing commissioner found facts and entered an award of compensation in the amount of $300.00 for the scar and $2,500.00 for the loss of the kidney. On review, the full Commission, "As a matter of law," acting under what it considered the compulsion of the Branham, Davis, and Arrington cases, struck out the award of $2,500.00 for the loss of the kidney. The Industrial Commission and the Superior Court permitted the Commissioner's finding of disfigurement to stand.

Subsections (1) to (20), inclusive, do not provide any compensation whatever for injuries on account of disfigurement. Neither do they provide compensation for loss of or injury to an organ or part of the body. While Subsection (21) provides compensation for serious disfigurement of the face or head, Subsection (22) provides compensation for serious bodily disfigurement, including the loss of, or injury to, an external or internal organ of the body. Under the facts found in this case, a scar, 16 inches long, unevenly healed, and the complete loss of a kidney in the course of treatment for the industrial accident, would seem to permit, if not compel, the award of compensation for the loss of the kidney. To hold otherwise is to sanction a strict, narrow, and strained construction of the subsection. It must be remembered the Workmen's Compensation Act requires the Industrial Commission and the courts to construe the compensation act liberally in favor of the injured workman. "The Act ``should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation.'" Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596; Henry v. A. C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760. The philosophy which supports the Workmen's Compensation Act is that the wear and tear of the workman, as well as the machinery, shall be charged to the industry. Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173.

None of the three cases the Commission relied on as compelling the denial of the right to award compensation for the loss of the kidney is actually in point. In Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, the claimant had a compressed fracture of one of the vertebrae in his spine. There was no disfigurement and no operation. In Davis v. Sanford Construction Co., 247 N.C. 332, 101 S.E.2d 40, the claimant lost two front teeth. His claim arose under Subsection (21) for head injuries. The Claim in Arrington v. Stone & Webster Engineering Corp., 264 N.C. 38, 140 S.E.2d 759, was for the loss of the sense of taste and smell. That case, too, arose under Subsection (21), applicable to head injuries.

The illustration the court used in Branham v. Denny Roll & Panel Co., supra, (and alluded to with apparent approval in Davis and Arrington) on which the Commission relies, goes beyond any issue actually involved in the case. The Court said: "There must be an outward observable blemish, scar or mutilation which tends to mar the appearance of the body, * * *. For instance, a puncture of the eardrum or the removal of a kidney would result in injury, perhaps serious, and yet no disfigurement would result." The illustration and the conclusion from it are dicta.

In the instant case, not only is there a scar, but it resulted from a necessary cutting operation incident to the complete removal of a kidney injured in the claimant's fall from the scaffold where he was at work. The Commission found disfigurement. The finding is not challenged. Some of the cases, especially Branham, seem to attach undue importance to the scar and little or none to the loss of the internal organ of the body. The contention that the claimant's scar and the loss of a kidney do not impair his occupational opportunities scarcely deserve comment. In this industrial age frequently workmen are required to undergo physical examinations in the course of their selection as employees. Certainly they are interrogated about their fitness to do the work required. Such examination or inquiry would disclose the reason for the scar and the loss of the kidney. According to his evidence, the applicant might be required to say he could now lift only 35 pounds. If another applicant, without a scar, with two good kidneys, and the ability to lift 250 pounds is standing in line for the job, does it make sense to say this claimant's occupational ability has not been impaired by the scar and the loss of a kidney?

By Ch. 424, Session Laws of 1963, effective July 1, 1963, the General Assembly rewrote Subsection (22) and added Subsection (24), separating the provisions for awards of compensation for disfigurement and for loss of an important organ of the body. The employer and his insurance carrier in this case argue the Legislature, by the change, is now providing the right of compensation for the loss of the kidney which did not exist before the enactment. It may with as much or more force be argued that the Legislature merely restated what its purpose and intent were from the beginning, and that the courts, by their narrow and strict construction, attached to the original Act a meaning the General Assembly never intended.

In this case the trial court committed error in affirming the decision of the Industrial Commission. The Superior Court should have entered judgment vacating the award of the Industrial Commission and remanding the proceeding for the entry of such an award, not exceeding $3,500.00, as the Commission "may deem proper and equitable compensation," for the loss of the claimant's kidney.

The judgment of the Superior Court is reversed with instructions that the proceeding be remanded for the entry of an award by the Industrial Commission as here indicated.

Reversed.

MOORE, J., not sitting.