Yockey v. Department of Labor & Industries ( 1944 )

My review of the legislation on the subject now before us leads me to a different conclusion from that reached in the majority opinion. After the workmen's compensation act was in operation for a time, it was quite generally recognized that the awards provided were in many instances inadequate and there developed a progressive tendency towards a broadening of the law and increasing its benefits. At first, the disability arising from a few enumerated injuries was defined as permanent partial disability as well as "any other injury known in surgery to be permanent partial disability." Later, other injuries were added to the list and a schedule of fixed awards provided. It was not practical and perhaps not possible to make an all-inclusive enumeration of injuries that would be deemed to constitute permanent partial disability, and so it was provided by chapter 209, Laws of 1941, p. 631, § 1 (Rem. Supp. 1941, § 7679), (f), that

"Compensation for any other permanent partial disability shall be in the proportion which the extent of such other disability shall bear to that above specified, which most closely resembles and approximates in degree of disability such other disability, but not in any case to exceed the sum of three thousand six hundred dollars. . . ."

In construing the act of 1911, we held in Biglan v. IndustrialIns. Commission, 108 Wn. 8, 182 P. 934, that no matter how many injuries a workman might receive resulting in as many permanent partial disabilities he could not be awarded anything beyond the fifteen hundred dollars total maximum provided for permanent partial disability. It is quite evident that the law was not satisfactory, because the legislature enacted chapter 28, Laws of 1917, p. 76, which not only made additional enumerations of injuries that would each constitute permanent partial disability, but a fixed amount was provided for each one. In response to the change made in the law, this court held inKlippert v. Industrial Ins. Dept., 114 Wn. 525, 196 P. 17, that, if a workman suffered two injuries of the enumerated kinds set forth in the schedule, he was entitled to the fixed award provided for each disability resulting from each injury.

The kind of case we have before us is no different in principle from the Klippert case. We have a situation where the several separate injuries sustained, resulting in as many separate permanent partial disabilities, are not enumerated in any schedule, and consequently do not have a fixed award therefor. This part of the law provides that compensation for any other permanent partial disability shall be based upon a comparable enumerated injury set forth in the schedule, "but not in any case to exceed the sum of three thousand six hundred dollars."

It seems to me the fact that the various injuries sustained by the claimant are not enumerated in the schedule does not deprive him of an award for each one of them. What has to be done in a case of this kind, where a workman in one accident sustains a number of separate injuries and none of them are in the schedule, is to determine which of them are permanent partial disabilities, then go to the schedule and select the ones most comparable to those sustained by the workman and fix compensation therefor. The whole idea seems to be that, if a workman sustains an injury to any part of his person which causes a permanent partial disability, he is to be compensated therefor, and the amount of his compensation for certain enumerated injuries is set forth in a schedule. But, if he sustains an injury that is not enumerated and it results in a permanent partial disability, he is to be compensated therefor in the manner provided, not exceeding the fixed maximum.

If in one accident or in separate accidents, he sustains several separate injuries not enumerated in the schedule, he should be treated and compensated from the same standpoint as if his injuries were enumerated in the schedule. I think the words "in any case" mean and refer to any one separate injury that results in a permanent partial disability rather than to any oneworkman who may be injured and as a result suffer one or more permanent partial disabilities.

I do not think it is for the court to consider what a badly injured workman might possibly receive, if he sustained several major injuries any one or all of which fell short of permanent total disability, in aid of the interpretation of the law. The schedule fixes a definite sum to be paid for each enumerated injury, but no fixed sum is provided for the others. A maximum is provided for each injury resulting in permanent partial disability, and in a severe instance the fact that collectively the allowance might be considerable is not any concern of this court.

I think there was sufficient evidence to go to the jury on the questions of fact and that its verdict should be allowed to stand.

September 5, 1944. Petition for rehearing denied.