Bausch v. Fidler , 277 Pa. 573 ( 1923 )

Opinion by

Mr. Justice Kephart,

Claimant fell from the roof of a church which he was painting. His left arm and right leg were broken, and right wrist injured. The compensation agreement did not specify under which class he was to be paid, and defendant ceased paying 175 weeks after the accident. On claimant’s petition to amend the agreement so that its terms might provide for definite losses, the board and court below affirmed the referee in awarding compensation under section 306, paragraph (c), for 215 weeks for the permanent loss of the left arm, 215 weeks for the permanent loss of the leg, and, in addition, under paragraph (b), for the partial loss of earning power due to the fractured wrist of the other arm. This award, except the latter part, cannot be very well disputed on the facts.

At first, the extent of claimant’s injuries was not known. When it appeared he was to have a permanently paralyzed arm, and a permanently stiff leg, with no hope of their recovery or of alleviating that condition, he was entitled to an order for their loss in combined weeks, under paragraph (c). The act specifically permits compensation for the combined number of weeks (section 306, paragraph c): “For the loss of any two or more of such members.......fifty per centum of wages during the aggregate of the period specified for each.” This part of the award is in direct accord with Sharcheck v. Beaver Run Coal Co., 275 Pa. 225, 227: “When the injury happened it could be well regarded as one of...... total disability......with a possibility either of improving and entirely healing, or, as it did, of lapsing into a different condition, i. e. permanent, causing the loss of the use of a foot,......and while compensation was being made under section 306 (a). Claimant [when the extent of loss was determined] was then entitled to an award for the loss of the use of a foot......[page 228]. So, if the injury or wound becomes permanent, causing the loss of the use of a member named in 306 (c),...... for all disability to such member, resulting from such permanent injury, compensation shall be ‘exclusively’ as provided in 306 (c)......,” and this just covered the 150 week period for which compensation was to be, and has been, paid.

As held in Lente v. Luci, 275 Pa. 217, under section 306 (c), the term “all disability” includes both total and partial disability, caused by the permanent injury to the members mentioned, or resulting from or related to the permanent injury. It' embraces not only all incapacity to labor, directly or indirectly arising from such permanent injury, whether total-or partial, but, likewise, cases of no incapacity at all. The compensation includes payments while the claimant is undergoing treatment. Payment for the loss of such members, or treatment’ charges, cannot be made under section 306, paragraphs (a) and (b), either for partial or total disability. But section 306 (c) does not include defections to other parts of the physical structure, distinct from the permanently injured member, though directly caused thereby. Compensation may be made for an injury to, destruction or affection of, other organs or parts of the body, produced by the permanent injury, causing a disability separate, apart and distinct from that mentioned in paragraph (c). This may be under paragraph (a) or (b): Lenti v. Luci, supra.

When the status of the two major injuries was definitely determined under the term “all disability,” the compensation related back to the first payment; what had been previously paid, awaiting the ascertainment of claimant’s final status, would be deducted from the award under paragraph (c), leaving due, in this case, payments for 255 weeks, at the rate fixed. Where injuries are under process of recovery, the resulting disability for compensation purposes may be partial, total or be compensable under 306 (c); where a temporary injury lapses into a permanent one, causing total loss of the member, the final award comprehends all compensation as a direct result of the injury, including the time under treatment: Lente v. Luci, supra.

The referee ordered, in addition, compensation for “permanent partial disability” to the right wrist. This he computed at 175 weeks for total disability under 306 (a) — he was not under treatment all this time — and 125 weeks for partial disability under 306 (b). The act makes no provision for such a determination under the facts as found in the court below. At the hearing claimant had complete use of the right arm to the wrist, and from it to the tips of the fingers, — there was a slight stiffness at the wrist. But, in fixing compensation for this, the results of his two major injuries — and the compensation claimant was receiving therefor — were entirely ignored, though the use of the arm and leg was absolutely gone; the referee treated the case as if, while undergoing treatment, and up to the time payment ceased, the loss was due entirely to the fractured wrist. To so hold places a value on it higher than the law sanctions for the amputation of the arm below the elbow.

There is nothing to show claimant’s total temporary disability while under treatment resulted from any other cause than the two major injuries; the compensation allowed claimant for them under 306 (c) was all the law permitted him to receive from the time the initial settlement was made, to continue during the period stipulated in the award. The act does not' contemplate payments for separate compensable injuries to be made concurrently.

We may assume claimant was entitled to some compensation for disability from an injured wrist. It must, under the express language of section 306, stand on its own foundation; claimant is not entitled to be paid for this partial loss under 306 (b), as that inability (to use his wrist) may be aided, influenced and affected by loss of the leg and left arm. A just determination for the loss of earning power due to the fractured wrist cannot be made without taking into consideration these elements of total disability paid for under 306 (c) during the period covered by such payments. Claimant may in the future be entitled to some compensation for this partial disability, but, when ascertained, it must be separate and distinct from the disability now being paid for in the permanent loss of the leg and arm. In fixing the number of weeks and per cent, the depleted earning power from the injury to the wrist must not include that which comes from other permanent losses. The time must be based on the probability of the partial disability continuing beyond the time now being compensated under 306 (c).

The pay for partial disability under 306 (b) expressly excludes conditions coming within “the cases mentioned in clause (c),” and the reduction of earning power due to incapacities mentioned in 306 (b) must be in addition to that coming from loss under 306 (c). Had claimant been entirely sound, except for the fractured wrist, he would have been entitled to receive exactly the compensation allowed for this partially disabled wrist, or fifty per cent of the difference between tbe wages before injury ($17 per week) and those received after ($10). Tbe latter was determined as earning power including all injuries; but, as we have stated, claimant is now being compensated for “all disability” for tbe loss of two members, and it was error to make such an award for disability from tbe injury to tbe wrist.

In order to determine tbe compensation claimant is entitled to receive on account of tbe partial disability due to tbe injured wrist, tbe board, in tbe exercise of a sound discretion, must find tbe unknown quantity, “earning power,” in 306 (b). Earning power, under tbe statute, does not' always depend upon tbe sum actually received, but on a consideration of all tbe elements that make it up or detract from it as defined or considered by tbe compensation act; it may be ascertained by considering tbe body in its normal condition impaired only by tbe wrist injury, or it may be represented by tbe difference between tbe earning power of a, person with one leg and one arm off (total disability), and bis earning power with a fractured wrist coupled with a leg and an arm off; viewed in either aspect, tbe result is tbe same. Under tbe act, tbe employee is entitled to 50 per cent (since increased to 60 per cent) of tbe difference between bis earning power thus impaired and what be received in wages before tbe accident. For illustration, take, as tbe base earning power before injury, $30 per week. With a wrist a little stiff tbe earning power would be $28, tbe reduction is slight, and -the difference of $2 would be tbe base upon which tbe sixty per cent would operate, or $1.20 a week. This is the first' illustration. As to the second, earning power $30 a week before injury. Earning power with tbe loss of an arm and a leg, $15 a week. Further loss from a fractured wrist would reduce tbe earning power to $13. Tbe differences in either event would be $2 per week, and sixty per cent of this would be tbe same as tbe above.

We conclude claimant is entitled to tbe aggregate number of weeks for tbe loss of an arm and tbe loss of a leg, at tbe amount per week fixed by tbe board, to begin when tbe compensation agreement was entered into. From this must be deducted tbe sums already paid; and to this balance may be added compensation for partial disability, ascertained under 306 (b), at tbe expiration of tbe foregoing period, for tbe loss of tbe use of tbe wrist for sucb number of weeks and in sucb amount as it may then be'found under this opinion this partial disability will continue beyond tbe period awarded under 306 (c). It will not be necessary for tbe board to take up tbe question of partial disability at this time. Its consideration may be postponed until tbe time approaches when it would ordinarily go into effect.

Tbe judgment is reversed, and tbe record is remitted to tbe court below with directions to return it to tbe compensation board, so that they may proceed to adjudicate tbe case in accordance with the law as expressed in this opinion.