
    Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Guy Fredenburg, Claimant, Respondent, for Compensation under the Workmen’s Compensation Law, v. Empire United Railways, Inc., Employer and Self Insurer, Appellant.
    Third Department,
    July 1, 1915.
    Workmen’s Compensation Lav — injury to motorman by electric current — disability by loss of foot and burns — computation of award — statute construed— average weekly wage — concurrent awards for different injuries not allowed — subsequent award for continuing disability.
    Appeal from awards made by the Workmen’s Compensation Commission to a motorman of a trolley express car who was injured by the electric current so as to necessitate the amputation of one foot, and was also burned upon other parts of his body. For a month and a few days preceding the accident, the claimant had worked for Ms employer as motorman of an express car at the rate of thirty-five cents an hour, and before that time had worked as motorman on passenger cars at the rate of thirty cents per hour. There was evidence that it was the custom of the employer to pay employees who had been in service as long as the claimant at the rate of thirty-five cents per hour when working on freight runs. On all the evidence, held, that the Commissioners in computing the award made to the claimant for the total disability caused by the loss of his foot were justified in taking his earnings at the rate of tMrty-five cents per hour rather than at the rate of thirty cents per hour, which he had previously earned.
    
      The Commissioners, however, having made the full statutory award for total disability, had no power to make another initial award for the temporary disabilities caused by the other injuries received by the claimant.
    The act provides but a single rate of compensation, to wit, sixty-six and two-thirds percentum of the employee’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, which was not intended to be a source of profit to the employee, or a means to punish the employer.
    But while two concurrent awards cannot be made, consecutive awards may be made, where the facts warrant them. Thus, it seems, that if on the expiration of the period of the award made, the disability of the claimant shall still exist by reason of injuries resulting from the accident other than the loss of the foot, he may be entitled to a subsequent award, if it be shown that the other disabilities are permanent or continue to exist at the expiration of the period of the first award.
    Appeal by the defendant, Empire United Railways, Inc., from two awards of the Workmen’s Compensation Commission herein, one entered in the office of said Commission on the 12th day of January, 1915, and the other on the 28th day of January, 1915.
    
      Nottingham, Nottingham & Edgcomb [Ernest I. Edgcomb of counsel], for the appellant.
    
      Jeremiah F. Connor [Egburt E. Woodbury, Attorney. General, and E. C. Aiken, Deputy Attorney-General, of counsel], for the State Workmen’s Compensation Commission.
   Lyon, J.:

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 one month and two 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 thirty cents per hour for the time he worked. During the twelve months preceding taking service upon the express car, he had worked 343 days and had received $961.85. Each six months, the employees 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 six 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 thirty 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, 1915, 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 thirteen dollars and forty-six cents per week, which was two-thirds of his weekly wages, fixing his average weekly wages at twenty dollars and fourteen cents, or upon the basis of three dollars and fifty cents per day; and also awarded the claimant compensation of thirteen dollars and forty-six cents per week, for fourteen 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 him from working, had he received no other injuries, from November 7, 1914, until the date of the award; and that the remaining injuries, had he received no injuries to his right foot, would have disabled him from working from November 7, 1914, until the date of the award. The correctness of these findings cannot be questioned, nor, doubtless, could one that the disability caused by injuries other than the injuries to and the amputation of the right foot would continue until February 27, 1915.

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.

As to the computation of claimant’s wages, section 14 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41) provided that, except as otherwise provided in that chapter, the average weekly wages of the injured employee 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 employee 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 three hundred times his average daily wage. If he shall not have so worked, his average annual earnings shall consist of three hundred times the average daily wage which an employee 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 employee, and of other employees of the same or most similar class, shall reasonably represent the annual earning capacity of the injured employee 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 six 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 employee who had been in the service of the company as long as the claimant, thirty-five 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 employees 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.

As to the award of thirteen dollars and forty-six cents for injuries other than the loss of the right foot, consisting mainly of injuries to the hands, the claimant was given by the two awards, which ran concurrently, twenty-six dollars and ninety-two cents per week, or six dollars and seventy-three cents more than his average weekly earnings, the second award being, as stated in the brief of the Commission, for temporary total disability because of injuries sustained by the claimant other than those resulting in the loss of his foot.

Making the second award was, we think, plainly contrary to the intent of the Workmen’s 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 half wages, which we believe will keep him and those dependent on him out of absolute destitution.” (See First Report, 1910, p. 50.) While the Legislature has provided for more liberal treatment of the injured employee than that suggested in this report of the Wainwright Commission, there is nothing to be found in the act justifying the allowance of concurring compensation for temporary total disability when the employee 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, sixty-six and two-thirds per centum of the employee’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. (See § 15.) The act was not intended as a source of profit to the employee 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 employee, 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 have lost a thumb and a second finger, for which he would have been entitled to the 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 once and a third 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 employee so injured would receive sixty-six and two-thirds per centum 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, hut 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 further compensation for total disability on account of other injuries arising out of the same accident, which second award should run concurrently with the first award.

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 twenty-eighth, 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 concurred.

Award affirmed.  