Ex Parte A. Diniaco & Bros.

This is a petition for the common-law writ of certiorari to review a judgment of the circuit court awarding compensation under the Workmen's Compensation Act (Gen. Acts 1919, pp. 206-239), and only those errors can be reviewed which are apparent upon the record. Woodward Iron Co. v. Bradford,206 Ala. 447, 90 So. 803.

Subdivision (c) of section 13 of the act contains the following provisions:

"For permanent partial disability the compensation shall be based upon the extent of such disability. * * * For the loss of an arm, fifty per centum of the average weekly earnings during two hundred (200) weeks. * * * For the loss of a leg fifty per centum. of the average weekly earnings during one hundred and seventy-five (175) weeks. * * * For the loss of one arm and one leg, fifty per centum of the average weekly earnings during four hundred (400) weeks."

It is further provided that —

"Where an employee sustains concurrent injuries resulting in concurrent disabilities, he shall receive compensation only for the injury which produced the longest disability, but this section shall not affect liability for the concurrent loss of more than one member, for which member compensation is provided in the specific schedule in subsection (d) below."

Subsection (d) provides for total permanent disability, which, as to members, is defined in subsection (e); following, as:

"The total and permanent loss of * * * both eyes or the loss of both arms at the shoulder, or complete and permanent paralysis. * * *"

It is further provided that —

"In cases of permanent disability due to injury to a member resulting in less than total loss of use of such member not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member, which the extent of the injury to the member bears to its total loss."

It is clear, we think, that the limitation in case of "concurrent injuries," as declared by the statute, has application only to distinct injuries resulting intotal disability, or in the identical partial disability in greater and less degree. It was, in short, intended to apply tooverlapping disabilities, and not to cumulative disabilities which are distinct in their nature and aggravative in their operation and effect. This is made unmistakably clear by the numerous specifications of permanent partial disability resulting from the concurrent loss of two separate members, for which the conjoint compensation exceeds the sum of the compensations provided for their separate loss. That provision of the statute must therefore be disregarded in this case.

The real question presented by the record arises upon the proper construction of the provision, quoted above, which compensates for the permanent partial loss of the use of a member in proportion to the compensation allowed for its total loss.

While this provision in terms relates only to the partial loss of a single member, it was unquestionably intended to apply also to the conjoint losses specified in the schedule, in the same proportion. The clause which limits the application of the partial loss provision to losses "not otherwise compensated in this schedule" evidently excludes only such partial losses of arm or hand, and leg or foot, as are specifically scheduled and compensated, as, for example, fingers and toes, or phalanges of either.

In the case of conjoint injuries to two members at the same time, some difficulty may arise in the application of the partial loss provision in cases where the injury produces a partial loss of each of the two members in different percentages or proportions; as, for example, a 20 per cent. loss of an arm and a 10 per cent. loss of a leg, the conjoint compensation for their total loss being for a period of 400 weeks, while the loss of the arm alone would be compensated by a period of 200 weeks, and the loss of the leg alone by a period of 175 weeks.

However, that difficulty does not arise in this case, and we need not now undertake its solution, since the percentage of loss of the arm and of the leg, respectively, is found to be 20 per cent. in each case; and hence the injured employee is entitled to receive one-half of his average weekly earnings for a period which is 20 per cent. of 400 weeks — i. e., 80 weeks.

The trial court was in error in determining the period on the basis of 40 per cent. of 400 weeks — manifestly so, because that would be in double the proportion of the loss. The court overlooked the fact that the schedule itself, in its specification for conjoint compensation, has aggregated the periods for separate compensation, and added 25 weeks more; and that to also aggregate the percentages of separate losses, and apply the sum of those percentages to the aggregated periods of compensation, would produce a result wholly at variance with the language and intention of the statute.

A very simple illustration will suffice to show the vice of that theory. If, for instance, the partial loss of each of the members — arm and leg — amounted to 50 per cent., the compensation would be for 100 per cent. of 400 weeks, or exactly the same as if the loss of each member were total — a result which cannot in reason have been intended.

The judgment of the trial court will be reversed, and the cause remanded, with directions to enter a new judgment on the basis herein prescribed.

Reversed and remanded, with directions.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.

On Rehearing.