Texas Employers' Insurance v. Holmes

Mr. Justice Slatton,

dissenting.

We are here concerned with the proper method of calculating compensation payments provided for a specific injury which does not extend to other parts of the body. Section 12 of Article 8306 is involved. In order to fully understand the statute we must consider all of its provisions. The first paragraph provides for maximum payments of $20.00 per week and minimum payments of $7.00 per week. Then following are the enumerated schedules which fix maximum weekly duration periods for which the minimum and maximum payments shall be made.

Following the enumerated schedules, the language used by the lawmaking body indicates that the Legislature considered the loss of a specific member of the body to be per se a permanent partial incapacity, regardless of incapacity in fact. The same paragraph recognized that if an employee lost the use of a specific member of the body, compensation should be the same as the loss of that member.

Following this provision, combined injuries to specific members of the body are provided. In order to distinguish and make certain the payments to be made under the enumerated schedules for both single specific injuries and combined specific injuries, provision is made for concurrent injuries, providing payment for the injury which produces the longest period except those fixed for combined injuries stated in the second enumerated schedule.

Following this clause the Legislature reiterated the fact that the permanent loss of use of a specific member is equivalent to and shall draw the same compensation as the loss of that member, but provided the compensation in and by said schedule shall be in lieu of all other compensation.

The above provisions deal with loss of a specific member of the body and the loss of use of a specific member of the body. These payments are provided regardless of whether the loss of a

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member or the loss of use of a member affects the earning capacity of the employee in fact.

These provisions only apply to cases of total loss, either temporary or permanent, as well as total loss of use, either temporary or permanent.

Obviously, total loss and total loss of use of a specific member do not cover all of the injuries which may be sustained by working men in virtue of an injury to a specific member of the bódy. A specific member of the body may be injured, but not to the extent of a total loss or a total loss of use of that member.

Also, other injuries may .be sustained by working men to other parts of the body so as not to come within the class of injuries known as general injuries, which are covered by other sections of the compensation statute. Neither would such injuries come within the specific enumerated schedules generally known as specific injuries.

In order to make provisions for the payment of compensation for the class of injuries not provided for in the general provisions of the compensation statutes, Sections 10 and 11 'of Article 8306, or in the provisions for specific injuries as enumerated in the schedules, the last paragraph of Section 12 was enacted.

Holmes suffered an injury to his leg at or above the knee and we must apply the specific injury statute to arrive at his proper compensation.

Since Holmes suffered a total loss of use of his leg for a period of eight weeks, the first paragraph of Section 12 must be considered for the maximum and minimum payments. It is necessary to consider the nineteenth provision of the enumerater schedules, for it is the only one applicable to a leg. This is necessary to determine the length or duration of weekly payments. Consideration should be given to the provision which makes the loss of a specific member partial incapacity per se, regardless of incapacity in fact. We must give other provisions of Section 12 due consideration because Holmes’ leg was not lost, that is, it was not severed from the body. But the Legislature recognized that the loss of use of a leg should be equivalent to and draw the same compensation as the loss of that member. The clause so providing must be given effect. This is true regardless of whether the loss of use is temporary or permanent.

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The injury for its duration is the same in either case. Applying the above provisions to the case at hand, 60% of the average weekly wages, agreed to be $95.24, equals $57.14, but under the first paragraph of Section 12 the maximum is fixed at $20.00 per week. Thus Holmes should receive compensation for a period of eight weeks at the maximum of $20.00 per week.

Holmes further suffered a permanent partial loss of the use of the leg to the extent of 35%. Nowhere in the above noticed provisions has compensation been fixed for a partial loss of use of a specific member. As we have stated, the statute says:

“The permanent loss of use of a specific member shall be equivalent to and draw the same compensation as the loss of that member.”

This language should be carefully considered, because it was used in a subsequent paragraph of Section 12 as follows:

“In all cases of permanent partial incapacity it shall be considered that the permanent partial loss of use of the member is equivalent to and shall draw the same compensation as the loss of that member.”

The term “in all cases of permanent partial incapacity” as here used means those fixed above in the enumerated schedules and is so stated in the next paragraph following the enumerated injuries. The above two provisions cannot be construed to mean that a 35% partial incapacity to the leg, either permanent or temporary, shall be equivalent to and shall draw the same compensation as the loss of that member, nor should we try to read into those two provisions the authority to reduce the amount of compensation according to the percentage of incapacity by implication. The all-important reason for not doing so is that the last paragraph of Section 12 was so worded and enacted as to meet the very necessities of such a case.

The last paragraph of Section 12 says “in all other cases of partial incapacity,” meaning those not covered by the preceding enumerated schedules, namely, those fixing maximum and minimum payments for specifically enumerated injuries. Those provisions are applicable, as we have stated, for a total loss and total loss of use of specific members, either temporary or permanent.

It includes another class of specific injuries other than those enumerated in the schedules, and has been described by the Legislature in these words: “including, any disfigurement which will

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impair the future usefulness or occupational opportunities of the injured employee.” '

Since other provisions of the compensation act, such as Sections 10 and 11 of Article 8306, provide compensation as for general injury, and the previous paragraphs of Section 12 provide compensation as for specific injuries, the other class included by the last paragraph of Section 12 is limited in number, but nevertheless equally as important.

The last paragraph of Section 12 is the only statutory authority for reducing the payments of compensation for partial incapacity. The following phrase “compensation shall be deter-' mined according to the percentage of incapacity,” which is contained in the last paragraph of Section 12, is a legislative command to reduce the compensation according to the percentage of incapacity, and is only found in the last paragraph of Section 12 of the act. In other words, the Legislature intended that the working man should be paid in accordance with the severity of the injuries suffered.

The last paragraph further provides:

“The compensation paid therefor shall be 60% of the average weekly wages of the employee, but not to exceed $20.00 per week multiplied by the percentage of incapacity caused by the injury for such period, not exceeding 300 weeks, as the board may determine.”

It is admitted that Holmes sustained a permanent partial loss of the use of the leg to the extent of 35%. It will be noted that the last paragraph of Section 12 has the phrase “not exceeding 300 weeks,” which is a maximum duration for weekly' payments of compensation. This provision is not in conflict with the duration periods of weekly payments which have been fixed. in the enumerated schedules. It would be unreasonable to attribute to the Legislature the intention of allowing 200 weeks duration for the loss or loss of use of a leg and to allow another workman who suffered a less serious injury to the leg a longér duration period for weekly payments. So where the partial incapacity is in virtue of a specific injury enumerated in the schedule and the period of weekly payments has been there fixed, the weekly payment period should not be extended beyond those provided in the schedule, — in the present case, 200 weeks. In any case of a specific injury as enumerated in the single schedule, the duration period of weekly payments

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does not exceed three hundred weeks. This is but the application of an important rule to be observed in statutory construction. It would not be fair or reasonable to allow a greater number of weekly payments to be made in case of an injury to the leg of 35% than in a case of total loss or total loss of use of the leg.

Holmes’ duration of weekly payments should be limited to 200 weeks as provided in the nineteenth paragraph of Section 12. He is entitled to eight weeks as for total loss of use of the leg, leaving a period of 192 weeks. Applying the language contained in the last paragraph of Section 12, which to my mind is not ambiguous, Holmes’ compensation for 192 weeks should be calculated as follows: 60% of his average weekly wages equals, as we have above stated, $57.14. The last paragraph of Section 12 says “but not to exceed $20.00 per week.” Then the law says “multiplied by the percentage of incapacity.” $20.00 per week multiplied by 35% equals $7.00 per week for 192 weeks. Thus Holmes is entitled to eight weeks at $20.00 per week, equaling $160.00, and 192 weeks at $7.00 per week, equaling $1,344.00, an aggregate judgment of $1,504.00, less the two payments of $20.00 per week which he has received.

There are cogent reasons why all paragraphs of Section 12 of Article 8306 must be construed together so as to harmonize them. Probably the most important rule of statutory construction is that an act should be given a fair, rational, reasonable and sensible construction considering its language and subject matter, and with a view to accomplish the legislative intent and purpose. Empire Gas & Fuel Co. v. State, 121 Texas 138 , 47 S. W. (2d) 265 ; Clark et al v. W. L. Pearson & Co., 121 Texas 34 , 39 S. W. (2d) 27 ; Magnolia Petroleum Co. v. Walker, 125 Texas 430 , 83 S. W. (2d) 920 .

The same thoughts are expressed otherwise in opinions of this court: statutory construction should comport with common sense, McLelland v. Shaw, 15 Texas 319 ; and justice, State v. Duke, 104 Texas 355 , 137 S. W. 654 , 138 S.W. 385 . Irrational conclusions or deductions should be avoided. Winder v. King, 1 S. W. (2d) 587 . Keeping in mind the foregoing rule as has been expressed in the opinions of this court, is it fair to allow Holmes the same compensation for a permanent partial loss of the use of a leg to the extent of 35% (which is a third less serious than total loss of use) as he has been allowed for a total loss of use for the period of eight weeks? Is such a construction of the

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statute rational, reasonable or sensible? Does such construction comport with common sense or justice?

In order to readily understand how unfair the majority view really is, we must bear in mind that the average weekly wages of the employee must be in excess of $33.33 before the method of calculation becomes important with respect to the maximum weekly compensation payments. On the other hand, we must keep in mind the importance of the last paragraph of Section 12 with respect to the minimum weekly payments as distinguished from the minimum fixed in the first paragraph of Section 12. The minimum contained in the first paragraph of section 12 was not intended to apply to a case of partial loss of use of a specific member, for the reason that an employee who suffers a 10% partial loss of use of his leg, with a wage rate of $20.00 per week, would draw $7.00 per week for a period of 200 weeks, and that would be the same compensation of an employee with the same wage rate who had suffered as much as 35% partial loss of use of his leg.

Another significant sentence contained in the last paragraph should be considered:

“Whenever the weekly payments - under this paragraph would be less than $3.00 per week, the period may be shortened and the payments correspondingly increased by the board.”

This sentence shows that in all other cases of partial incapacity the minimum of $7.00 per week which is fixed in the first paragraph of Section 12 is not applicable thereto. The phraseology of the last paragraph of Section 12 shows that the Legislature was intending to make compensation payments in comparison with the seriousness of the injury suffered by the working man. The query arises, to what does the phrase “not exceeding 300 weeks as the board may determine” have application? In my opinion the provision has application to any case of partial incapacity and includes the class designated by the statute, such as disfigurement which will impair the future usefulness or occupational opportunities of the injured employee. To suppose a case: Suppose a salesman in a ladies’ ready-to-wear shop should lost his nose. The injury does not extend to other portions of his body so as to become a general injury. This would be a disfigurement and would probably impair the future usefulness or the occupational opportunities of the employee. No provision has been made for such an injury in the enumerated schedule appearing in Section 12. In such a case

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the Industrial Accident Board or the court could allow compensation, that is, 60% of the average weekly wage, but not to exceed $20.00 per week, multiplied by the percentage of incapacity (found by the board or by the jury) for a period not exceeding 300 weeks. This construction of the statute will not do violence to any portion thereof, and will do justice toward working men.

The last paragraph of Section 12 was first construed by the Beaumont Court of Civil Appeals in Western Indemnity Co. v. Milam, 230 S. W. 825 , in which this court refused a writ of error. The action of this court was on January 25, 1922. 112 Texas 639 . The court of civil appeals say:

“Under this paragraph, (having reference to the paragraph in review) appellee contends, by cross-assignment, that the amount of compensation for partial disability should be determined by multiplying 60 per cent, of the average weekly wages by the percentage of disability, limiting the compensation to $15 per week, and as sustaining him, cites the fact that this is the construction placed on this paragraph by the Industrial Accident Board. He concedes that this construction requires that the paragraph be read as if the clause ‘but not to exceed $15 per week’ followed the words ‘multiplied by the percentage of incapacity caused by the injury,’ but insists that it effectuates the true purpose of the Legislature, which was to fix the maximum compensation in all cases at $15 per week: But—

“ ‘The statute itself furnished the best means of its own exposition; and if the intent of the act can be clearly ascertained from a reading of its provisions, and all its parts may be brought into harmony therewith, that intent will prevail, without resort to other aids for construction.’ Lewis’ Sutherland, Statutory Construction (2d Ed.) sec. 348.

“A literal construction of this paragraph does not bring it in conflict with any other part of the act. It follows, then, that we should give it that meaning its reading. imports, which is to limit 60 per cent, of the average weekly wages to $15 per week and fix the compensation by multiplying this 60 per cent, by the percentage of disability.”

Shortly thereafter the Legislature amended the compensation act as it was originally passed in the Act of 1917. With respect to Section 12 of Article 8306, it was re-enacted in 1923 with the only change of raising the minimum of $5.00 per week to $7.00, and raising the maximum from $15.00 per week to $20.00 per

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week. See Chapter 177, Acts 38th Legislature, Regular Session 1923, pp. 384, 390. The act was approved April 3, 1923. In the case of Texas Fidelity & Bonding Co. v. City of Austin, 112 Texas 229, 236 , 246 S. W. 1026 -1029, it is said:

“It is an elementary rule of construction that where, after a statute has been construed by the highest court of the state, the Legislature re-enacts the statute, whether by the adoption of Revised Statutes or by amendment, the act of the Legislature carries with it the construction previously placed upon the law by the court.”

Thus it is seen that when the Legislature amended the act without any change it- “carried with. it the construction previously placed upon the law by the court.” This is a clear legislative approval of the construction which the court placed upon the statute.

- The case of Maryland Casualty Co. v. Ferguson, 252 S. W. 854 , was decided by the El Paso Court of Civil Appeals contrary to the Milam case. In the Ferguson case there are three opinions, neither of which entirely agrees with- the other. Application for the writ of error in that case alleged as- grounds for jurisdiction in this court a conflict between the Ferguson case and the Milam case. Unfortunately the Supreme Court refused a writ of error. Evidently the Supreme Court did not intend to settle the conflict of decisions between the courts of civil appeals by refusal of a writ of error in the Ferguson case, because at that time the Supreme Court did not' have jurisdiction to settle conflicts of opinions of the courts of civil appeals in this manner. Had the Supreme Court desired to do so, it would at that time have been necessary to grant the writ and write an opinion in the case. The authority to settle conflicts of opinions between the courts of civil appeals was subsequently given to the Supreme Court by the amendment of our jurisdictional statute, Article 1728, in the year 1927. See Acts 40th Legislature, p. 214, wherein this significant amendment was placed in the statute:

“Provided further that in cases of conflict named in Subdivision 2 above, (those of which one of the courts of civil appeals holds differently from a prior decision of its own, or of another court of civil appeals or of the Supreme Court upon any such question of law) the Supreme Court may, in its discretion, refuse the writ of error where the court is in agreement with the decision of the Court of Civil Appeals in the case in which the application is filed; * * *.”

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We should not attribute to the Supreme Court the intention of settling a conflict of decisions of the courts of civil appeals by a refusal of the writ of error, when at the very time the court had no such authority to do so. Obviously, the judgment in the Ferguson case is wrong, because the statute, in my opinion, is not susceptible of the construction placed thereon. I shall content myself with the belief that the Supreme Court, on account of its heavy docket, failed to fully comprehend the holding in the three divergent opinions of the El Paso Court of Civil Appeals in the Ferguson case.

It was contended in the Milam case that the court should give the construction insisted for on this appeal because the Industrial Accident Board had placed that construction on the statute. As I understand the rule, departmental construction is only given weight where there is ambiguity in the statute. Obviously we cannot construe a statute different from its wording solely because of an erroneous departmental construction thereof. This principle is well illustrated in the case of Ramsey et al v. Tod, Secretary of State, 95 Texas 614, 626 , 69 S. W. 133, 136 . It says:

“It is alleged in the petition, in effect, and it is, of course, admitted by the demurrer, that since the passage of the law successive secretaries of state have construed it in accordance with the construction of the relators. But we do not think that the construction of the statute is of such doubtful character that the action of the secretaries of state should be given controlling effect. Nor do we think the fact that the law has been amended by the legislature since such construction by the- executive of- . fleers of the state, without change as to the matter under consideration, affects the question.”

This well-settled rule was restated in the case of McCallum, Secretary of State, v. Associated Retail Credit Men of Austin, 41 S. W. (2d) 45 , local citation 47:

“The rule that a departmental ruling adhered to through years of administering of a statute will be given weight, only applies to statutes of doubtful construction. Such a rule has no application to a statute, such as this, that is not of doubtful construction or application. (Citing the Ramsey case, supra).”

In principle, I think the cases of Petroleum Casualty Co. v. Seale, 13 S. W. (2d) 364 , and Lumbermen’s Reciprocal Ass’n. v. Pollard (Com. App.) 10 S. W. (2d) 982 , are controlling in the instant case.

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In the Seale case it is .said:

“The manifest injustice of the rule contended for by defendant in error is made apparent by the recovery permitted in this case. If one of his colaborers had been injured at the same time defendant in error received his injury, which had resulted in the amputation of his foot, or in the complete loss of the use thereof, the recovery would have been confined, under the plain provisions of Section 12 of the act, to 60 per cent, of his average weekly wages for a period of 125 weeks, which defendant in error, who suffered a lesser injury, was allowed the same amount of compensation for a period of 300 weeks. In other words, he has been allowed more than twice as much compensation for a permanent partial incapacity to his foot as his colaborer could have been allowed for the complete loss of the use of his foot. We do not think, when the act is considered as a whole, that we are justified in imputing to the Legislature an intention to work such an injustice and inequality upon those entitled to receive benefits under the act.” f

By the same principle I do not think the Legislature ever intended that an employee such as Holmes should receive as much compensation for a 35% permanent partial incapacity to the leg as his fellow employee, who suffered the entire loss of a leg, and this is particularly true where his fellow employee had the same wage rate. The effect of the majority holding is to allow this injustice. The injustice of the rule is emphasized by a consideration of the fact that this cannot possibly occur under any other provision of the workmen’s compensation laws as they have been construed by the courts.

In 1932 the Fidelity Casualty Company v. Munday, 44 S. W. 926 , case was decided, wherein the correct principle was applied. We quote briefly from that case:

“With regard to a permanent partial loss of the use of a hand, it has been repeatedly held, in effect, that such a loss comes within the purview of the above provisions and that payment of compensation each week, as there provided, is required to be made in the proportion that the use of the hand is permanently lost, (citing cases) That holding was expressly approved by the Supreme Court in the Seale case and impliedly approved in the other two. In conference with the Supreme Court, we have been authorized to declare all holdings to the contrary, in other cases, overruled.”

The judgment in the Munday case provided for a maximum.

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recovery of $20.00 per week compensation for the period of 15 weeks and thereafter allowed $15.00 per week for the remaining 135 weeks. This because of the jury findings of total loss of use for a period of 15 weeks and the percentage of the permanent partial incapacity of defendant’s hand was found to be 75%. It seems to be unfortunate that the cases intended to be overruled were not cited, but we have gone to the brief of the compensation claimant in the Munday case and find that he was relying upon, among others, Maryland Casualty Co. v. Ferguson, 252 S. W. 854 .

It is important also to observe that since the decision of the Milam case and the other cases heretofore cited, that many terms of the Legislature have been in session and no action has been taken to overrule these decisions.

The next time a case was presented to this court was in 1945, the case styled Industrial Accident Board v. Glenn. It is to be observed that the Austin Court of Civil Appeals decided the Glenn case upon the same principle as was announced in the Munday case, and the opinion was handed down on November 15, 1944, prior to the convening of the last session of the Legislature. Also the case of Zurich General Accident & Liability Ins. Co. v. Thomas, 187 S. W. (2d) 689 , was handed down January 25, 1945. These opinions followed the holding of the Beaumont Court in the Milam case.

The following bill was introduced in the Senate at the last session, being Senate Bill No. 259, the enacting clause of which recites:

“an act amending Section 12 of Article 8306, Revised Civil Statutes of Texas, 1925, so as to provide that in all cases of permanent partial disability as provide the compensation shall be calculated or figured at sixty per cent of the average weekly wage multiplied by the per cent of disability to the particular member or members specifically enumerated above; but in no even shall such compensation rate exceed $20.00 per week; and provided in all other cases of partial incapacity, including any disfigurement, the compensation paid therefor shall be sixty per cent of the average weekly wages multiplied by the per cent of incapacity caused by the injury; and declaring an emergency.”

The failure of the Legislature to adopt this proposal is all persuasive evidence that the Legislature approved the construction which had theretofore been placed upon the statute in review by the cases cited above. Moreover, the Supreme Court

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granted writ of error in the Glenn case. The court as then constituted consisted of three justices and six judges of the Commission of Appeals. The Glenn case was submitted to the entire nine judges, both on oral argument and on the briefs of the parties, together with many amicus curiae briefs. The case was assigned by the court to this writer. On April 18, after full discussion before all nine judges, the opinion of the writer was handed down on said date construing the statute as it was construed in the Milam case, without a dissent of either member of the court. The Legislature adjourned without passing the above senate bill, evidently with full knowledge of the action of the Supreme Court in the Glenn case. I am not apprised of any new argument being suggested as would render the statute ambiguous or would require a different construction thereof.

In my opinion the confusion that has arisen is the failure to distinguish between Sections 10 and 11 of Article 8306 and Section 12. For instance, in the case before us, if the literal rule governing Section 11 is applied to a specific injury case such as this, Holmes would not be entitled to compensation, for the the reason that he is drawing the same wages now as he was before receiving his specific injury. The confusion is apparent from the quoted portion of Justice Simpson’s dissenting opinion in the Glenn case.

Little need be said concerning the divergent views expressed in the dissenting opinion of Justice Folley, in which Justices Hicks and Brewster concur, because we reach the same result in the present case. However, I cannot agree with them, for the reason that, in my opinion, the cases upon which they rely do not hold the last paragraph of Section 12 is not applicable as to the proper method of calculating compensation for a permanent partial incapacity to a 'specific member of the body. The cases upon which they rely are: Lumbermen’s Reciprocal Ass’n. v. Pollard (Com. App.) 10 S. W. (2d) 982 ; Petroleum Casualty Co. v. Seale, 13 S. W. (2d) 364 ; Texas Employers’ Ins. Ass’n. v. Maledon (Com. App.) 27 S. W. (2d) 151 ; Fidelity Casualty Co. v. Munday, 44 S. W. (2d) 926 ; Great American Indemnity Co. v. Stutz, 56 S. W. (2d) 200 , writ refused. The average weekly wages were not high enough to reach the precise question here presented in the Seale and Pollard cases, but the principle on which the cases were decided is the same as in this case.

The minimum weekly payment was involved in the Maledon case, and judgment was properly rendered by the court for a

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weekly compensation rate of $5.54 per week. Thus demonstrat- ’ ,ing beyond any doubt that the court was considering the last paragraph of Section 12 of Article 8306, which provides for weekly compensation payments according to the percentage of incapacity, without fixing a minimum, as does the first paragraph of Section 12 of Article 8306, which provides a minimum of $7.00 per week.

Nor do I construe the case of Great American Indemnity Co. v. Stultz, 56 S. W. (2d) 200 , writ refused, as holding contrary to my views. The case is a good illustration of the application of the rule of liberal construction with regard to the compensation act. The insurance company in that case contended that no provision had been made in the compensation act to compensate for the loss of sight less than total loss. Its argument was based upon the literal reading of the statute “for the total and permanent loss of sight of one eye, 60% of the average weekly wages during 100 weeks.” The employee in that case suffered a 25% partial loss of the sight of the eye and was paid in accordance with my views under the last paragraph of Section 12.

The Munday case, as I have heretofore said, is in line with the Milam case, and settled the very question now before us contrary to the majority view. Moreover, the court recognized in the Seale case, which followed the Pollard case, that it was not out of harmony with the Moreno case, 277 S.'W. 84, local citation 87. In that case it is said:

“Section 12 speaks of the specific injuries mentioned as cases of ‘permanent partial incapacity.’ And a reading of the injuries discloses that each of them involves only a partial incapacity. The loss of a limb is a permanent incapacity, but only a partial one. This section of the law allows an employee one-half as much for the loss of an arm as he could possibly recover for total inability to work for any other reason. The law says that the permanent loss of the use of a member shall be the same as ¡if it was cut off. A man whose arm is permanently paralyzed would get the same compensation under section 12 as would one whose arm was cut off with a knife. But a careful reading of section 12 discloses that these specific recoveries are liimted either to the loss of a member or the permanent loss of its entire usefulness.

There is nothing in section 12, prior to its last paragraph, allowing recovery for the temporary or permanent partial loss of the usefulness of an arm.”

(Emphasis ours).

It is true that the maximum of $20.00 per week provided

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under the various sections of the compensation statute seems relatively small, and if we assume that it was just when made in 1923, conditions now are such that it is wholly inadequate, This is a legislative problem. This does not authorize or justify a court to do an.injustice and favor higher paid working men. Because the maximum provided under the workmen’s compensation law is inadequate is no justification for allowing Holmes, who suffered a 35% incapacity to his leg, to receive $20.00 per week, when under the same statute his fellow employee, if he had suffered a total loss of a leg, would be compensated in the same amount. This was never intended by the Legislature, and should never be allowed in any case.

The result of the decision of the majority is to favor working men whose average weekly wages are in the higher brackets and to discriminate against those who are not so fortunate. The whole theory of the workmen’s compensation law is to favor those with the smaller incomes. This is illustrated by the minimum fixed by the first paragraph of Section 12, which provides a minimum weekly payment of $7.00 per week regardless of the average weekly wage of an employee who suffers a total loss or a total loss of use of a specific member of the body.

In my opinion, this Court should not, under the guise of liberal construction, interpret the act so as to discriminate against employees of the smaller wage group in favor of those of the higher wage bracket.

Entertaining as I do the firm conviction that the majority opinion is wrong, I most respectfully enter my dissent.

Opinion delivered June 19, 1946.