Owens v. Herndon ( 1969 )

Brailsford, Justice.

In this workmen’s compensation case the employee, a mechanic, sustained a back injury in a compensable accident on June 21, 1964. He returned to work at his regular job on September 15, 1964. Although his back was painful, he was continuously employed as a mechanic from that date until his claim for permanent partial disability compensation was heard on November 3, 1966. During this period his hourly rate of pay was increased from $1.70 to $2.75. He has lost about three days per month from work because of back pain, according to his estimate, but his average weekly wages have been in excess of those received prior to his injury. Based upon medical evaluation, the hearing commissioner found that claimant had sustained a “permanent physical impairment of thirty percent (30%) of his whole body,” and that this impairment resulted in a corresponding “loss of wage earning capacity — thirty percent (30%) disability — in the amount of Thirty Dollars ($30.00) per week * *

From an award of $18.00 per week (60% of $30.00) as compensation for permanent partial disability, the employer appealed to the South Carolina Industrial Commission. The Commission, although agreeing that claimant had sustained a thirty percent permanent physical impairment from the injury, found that he had no “ 'disability’ within the meaning and contemplation of the Workmen’s Compensation Act in that the Claimant has suffered no diminution in wages.”

On appeal by claimant, the circuit court found that the only reasonable inference from the record was that claimant had sustained a compensable loss of wage earning capacity, and ordered that the award of the hearing commissioner be reinstated. The employer has appealed from this order of the circuit court.

The rights and liabilities of employee and employer under the Workmen’s Compensation Act are purely statutory and are to be judged by the terms of the Act. Policy considerations as to what benefits should be conferred or obligations imposed are strictly for the legislature. Disability is defined in the Act, Section 72-10, Code of 1962, as “incapacity because of injury to earn wages which the employee was receiving at the time of injury in the same or any other employment.” Where disability is partial, the employee shall receive “a weekly compensation equal to sixty per cent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, * * Sec. 72-152, id.

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 zuhich 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.

Here, it is admitted that claimant has been regularly employed since returning to his old job on September 15, 1964. He has voluntarily changed jobs twice, each time receiving a substantial increase in pay for his services as a mechanic. Although he has suffered pain and discomfort, described by his physician as episodic, and lost time from work, his average weekly wages since September 15, 1964, have exceeded his average weekly wages before the injury. There is no suggestion that claimant’s post injury wages do not represent actual earnings. Under these facts, the Commission’s conclusion that claimant suffers no disability, as defined by the Act, i. e., no “incapacity because of injury to earn wages which (he) was receiving at the time of injury in the same or any other employment,” is required by the terms of the statute and by our decisions in Parrott v. Barfield Used Parts, 206 S. C. 381, 34 S. E. (2d) 802; Keeter v. Clifton Mfg. Co., 225 S. C. 389, 82 S. E. (2d) 520, and Shealy v. Algernon Blair, Inc., 250 S. C. 106, 156 S. E. (2d) 646.

Reversed.

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