Outlaw v. Johnson Service Co. ( 1970 )

Littlejohn, Justice.

In this workmen’s compensation case the claimant, an electrician-employee, sustained a back injury in a compensable accident o,n November 16, 1967. His physician testified to a rating of 30% permanent, general, overall bodily disability. Based on such rating the South Carolina Industrial Commission awarded him “compensation at the rate of Thirty-two and 40/100 Dollars per week for a period of two hundred ninety (290) weeks * * * representing a thirty percent (30%) general bodily disability.” Upon appeal to the Richland County Court of Common Pleas the award was set aside. From such order the claimant has appealed.

There is no dispute as to the facts. The claimant is an excellent electrician who has worked for Johnson Service Company for eight years. On November 16, 1967 he sustained an admittedly compensable injury to his back, and was paid ten weeks benefits. Thereafter he returned to work with the same employer and at the time of the hearing was continuing to work on a regular basis, making the same or more money than he made prior to the injury. It is conceded that he is unable to do the more heavy and more strenuous work connected with his employment, but he is doing the same type of work which he was performing prior to his' injury. His employer is satisfied with his performance. It is a fair summary to say that he is on the same job for the same pay, but is not physically able to do some of the tasks he performed prior to the accident.

The question for determination by this court is: Does the receipt of po,st-injury wages equal to pre-injury wages bar a finding of disability as contemplated by the Workmen’s Compensation Law where the employee is continuing to work on the same job earning the same or better pay?

At the time of the trial of the case before the single industrial commissioner this court had not decided the case of Owens v. Herndon, 252 S. C. 166, 165 S. E. (2d) 696 (1969), cited by the lower court. Counsel for the appellant has requested, and been granted, under our rule, permission to argue against that decision.

The rights and liabilities of employees and employers are established by the terms of the Workmen’s Compensation Act. The legislature determines what benefits should be conferred and what obligations imposed. Compensation is provided for disability only. The claimant is obviously earning the wages he receives. Section 72-10 of the Code defines disability as: “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.” In case of partial disability the employee receives “a weekly compensation equal to sixty percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, * * Section 72-152.

In Owens this court said:

“By the clear terms of these sections, ‘compensation under the Act is not awarded for the physical injury as such, but for “disability” produced by such injury. The disability is to be measured by the employee’s capacity or incapacity to earn the wages which he was receiving at the time of his injury. Loss of earning capacity is the criterion. There • is no recognition of the elements of pain and suffering, or of increased discomfort and difficulty in performing - the work as long as there is no diminution in earning capacity. (Citations omitted).’ (Emphasis added.) Keeter v. Clifton Mfg. Co., 225 S. C. 389, 392, 82 S. E. (2d) 520, 522.”

We have re-examined Owens and conclude that the statute requires that we adhere to the ruling made therein. We agree with the circuit judge when he said:

“The Owens decision did not establish new law. In Parrott v. Barfield Used Parts, (1945) 206 S. C. 381, 34 S.E. (2d) 802, the claimant sustained a ‘back’ injury which resulted in his receiving a medical disability rating of twenty to twenty-five per cent upon which the Industrial Commission made an award to the claimant although he had.returned to work, changed employment, doing ‘easier’ work making more income than at the time of the injury. The Circuit Court set aside the award and this ruling was affrmed by the Supreme Court.”

We think that the appellant takes undue comfort in the reasoning of the dissenting opinion in Owens. In that case the facts are more favorable to the claimant than here. Ev'en under the more favorable factual situation, the court was of the opinion that compensation was not warranted under the statute. As pointed out by Mr. Justice Bussey in that dissent, there was evidence that the employee was refused employment because of his back condition and his doctor testified that the claimant had days when he was totally disabled. It was also inferable from the testimony that the post-injury wages were influenced by a change of jobs and by an inflationary trend. Tho,se elements are absent here. The ruling today, because of the facts, is not inconsistent with the dissenting opinion in Owens. The claimant has not suffered a diminution of earning capacity as contemplated by the statute.

In Walker v. City Motor Car Company, 232 S. C. 392, 102 S. E. (2d) 373 (1958), this court said:

“ ‘Loss of earning capacity alone is the criterion and medical opinion as to the extent of physical disability can have no probative value against actual earnings.’ (Emphasis added.)"

The ruling in Parrott has been adhered to as the law of this state for twenty-five years without intervention or change by the legislature. We conclude, as did the lower court, that the statute sets forth how disability shall be determined. The claim asserted is not covered. A matter of policy is involved, and if such claims are to be compensated the ruling should be changed by the legislature, not by this court. We conclude that the order of Judge Grimball should be,

Affirmed.

Moss, C. J., and Brailsford, J., concur. Lewis and Bussey, JJ., dissent.