Fredenburg v. Empire United Rys., Inc.

This is an appeal from awards made by the Workmen’s Compensation Commission. The facts are undisputed. The claimant, at the time of receiving the injuries, November 7, 1914, was a motorman on a trolley express car of the defendant and had been in its employ for seven years. He was injured while standing on top of the car, removing the trolley pole from its socket. One end of the trolley pole came in contact, with the trolley wire while his right foot was against the socket, severely burning both hands and both feet, and less seriously injuring other portions of his body. These injuries necessitated the amputation of his right foot, and at least temporarily totally incapacitated him from using his left foot or either hand. At the time of sustaining the injuries he had worked for 1 month and 2 days, Sundays excluded, as the motorman of the express car, receiving $3.50 for each day he worked. Prior to taking service as a motorman upon an express car, he had worked for the defendant for some years as a motorman upon passenger cars, receiving 30 cents per hour for the time he worked. During the 12 months preceding taking service upon the express car, he had worked 343 days and had received $961.-'85. Each 6 months the employes of the defendant were allowed to choose their runs in the order of seniority of service. When the claimant, who was the seventh on the list, came to make his choice, the express run seemed to" him to be the most desirable of those left, and he chose that. Whether upon a new choosing at the end of 6 months the express run might be chosen before it came his turn to make a choice, and he be compelled to return to a passenger run at 30 cents per 'hour, but with the opportunity of making overtime, was, of course, uncertain.

Upon a hearing had before a commissioner and a deputy commissioner January 12, 1915, an award was made claimant for the loss of his foot; and upon a hearing had before deputy commissioners January 26, 1915, an award was made for injuries other than the loss of a foot. The Commission, by decision of date January 28, 1914, approved and confirmed said two awards, and formally awarded the claimant compensation for the loss of his right foot for 205 weeks from November 21, 1914, at the rate of $13.46 per week, which was two-thirds of his weekly wages, fixing his average weekly wages at $20.19 per week, or upon the basis of $3.50 per day, and also awarded the claimant compensation of $13.46 per week, for 14 weeks, from November 21, 1914, ending February 27, 1915, for disability caused by injuries other than the injuries to and the amputation of his foot, and continued the case for further hearing. In its conclusions of fact, upon which the awards were based, the Commission found that the injuries to his right foot and its amputation would have disabled

We shall treat such as the conceded facts. The defendant makes no objection to the award of 205 weeks for the loss of the foot. It bases its appeal upon the claim that claimant’s average weekly wages should have been computed upon his earnings upon the passenger run, rather than upon the express run, and that no award whatever should have been made in addition to the award of 205 weeks for the loss of his right foot.

[1] As to the computation of claimant’s wages, section 14 of the Compensation Law provided that, except as otherwise provided in that chapter, the average weekly wages of the injured employé at the time of the injury should be taken as the basis upon which to compute compensation or death benefits, and should be determined as follows: If the injured employé shall have worked in the employment in which he-was working at the time of the accident during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of 300 times his average daily wage. If he shall not have so worked, the basis for computation shall be the average daily wage which an employé of the same class, working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned when so employed. If either of the foregoing methods of arriving at the annual average earnings cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employé, and of other employes of the same or most similar class, shall reasonably represent the annual earning capacity of the injured employé in the employment in which he was working at the time of the accident.

The employment of the claimant as motorman on the express car was assured for at least 6 months from the time he entered upon it, and there was a reasonable possibility of his continuing on that run. Although he had not worked as motorman on the express car for the year immediately preceding the accident, it appears from the affidavit of the secretary of the defendant that it was the custom of the defendant to pay an employé who had been in the service of the -company as long as the claimant 35 cents per hour upon a freight run. This tended to fix the average daily wage of a motorman in such employment prior to the time the claimant took that run, as well as to' fix the average earnings of other employés in the same position. We think the finding of the Commission as to the average weekly wages of the claimant was fully warranted by the evidence.

[2] As to the award of $13.46 for injuries other than the loss of the right foot, consisting mainly of injuries to the hands, the claimant

Making the second award was, we think, plainly contrary to the intent of the Compensation Law. The purpose of that statute, as expressed in the report of the legislative commission upon which it was mainly founded, was not to furnish full compensation, “but a sum payable weekly, in general, one-half wages, which we believe will keep him and those dependent on him out of absolute destitution.”- While the Legislature has provided for more liberal treatment of the injured employé than that suggested in this report of the Wainright Commission, there is nothing to be found in the act justifying the allowance of concurring compensation for temporary total disability when the employé is already receiving a weekly compensation of two-thirds of his average weekly wages, or full compensation for total disability. The act-provides but the single rate of compensation, to wit, 66% per centum of the employé’s average weekly wages; and this percentage for a longer or shorter period is applicable to all disabilities, whether total or partial, and is the maximum compensation provided for by the statute. The act was not intended as a source of profit to the employé, or as a means of punishment of the employer, who- in many cases is wholly free from any fault in connection with the accident. If concurring awards may be allowed, it is easy to see how that practice may be carried to such an extent as to become very burdensome and unjust to the employer and very unfortunate to an improvident employé, and to a considerable extent render nugatory the beneficent purpose of the statute.

In this case, had the claimant, in addition to losing his foot, lost a thumb and a second finger, for which he would have been entitled to be awarded compensation for 60 weeks and 30 weeks, respectively, the awards therefor, if running concurrently, would have entitled him to twice his weekly wages for 30 weeks, to 1% times his weekly wages for 30 weeks, and to two-thirds of his weekly wages for 145 weeks, when the payment of compensation would terminate. With the awards taking effect consecutively, such employé so injured would receive 66% per cent, of his weekly wages for a period of 295 weeks. The necessity of the awards taking effect consecutively, rather than concurrently, in order to carry out the plain purpose of the statute, is apparent. We are referred to decisions of other states holding that awards may be made to run concurrently, but in each of such states the statute allowed it.

We are not to be understood as holding that if, at the expiration of the 205 weeks, disability of claimant shall exist by reason of the injuries resulting from this accident, .other than the disability arising from the loss of the foot, the claimant will not be entitled to a further award on account thereof, but as simply holding that the claimant, by the first award having been -allowed compensation to the full amount allowed for total disability, could not by the second award be awarded

While the Commission has found that the injuries other than those resulting in the loss of the foot have disabled the claimant from working until January 28th, the date of the report, and has awarded compensation therefor to February 27, 1915, and has continued the case for further hearing, there is no finding that such disability is permanent, as would be the case in the event of the loss of a thumb or finger, or that the disability will exist at the expiration of the period of 205 weeks.

The award of compensation for the loss of the foot should be affirmed. The award of compensation for injuries other than the loss of the foot should be reversed, but without prejudice to the further continuance of the case, and to the right of the claimant to make further application to the Commission, or its successor, for an award of compensation on account of such other injuries, should he be so advised. All concur.