
    Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Jacob Schwab for Compensation under the Workmen’s Compensation Law, v. Emporium Forestry Company, Employer, and The Travelers’ Insurance Company, Insurance Carrier.
    Third Department,
    May 5, 1915.
    Master and servant — right of claimant to compensation for “total permanent disability ” under subdivision 1 of section 15 of Workmen’s Compensation Law.
    A claimant injured by having his right hand severed at the wrist, who has previously lost his left hand, is entitled to compensation for “ permanent total disability” under subdivision 1 of section 15 of the Workmen’s Compensation Law.
    Woodward, J., dissented.
    Consideration of questions certified by the Workmen’s Compensation Commission to the Appellate Division of the Third Department, under section 23 of the Workmen’s Compensation Law (Consol. Laws,- chap. 61; Laws of 1914, chap. 41).
    
      Amos H. Stephens [E. Clyde Sherwood and William B. Davis of counsel], for the Travelers’ Insurance Company.
    
      Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, and Jeremiah F. Connor of counsel], for the Compensation Commissioners.
   Smith, P. J.:

The claimant was injured on July 6, 1914, by having his right hand severed at the wrist., His left hand was amputated in the year 1892. The question certified is whether the claimant is entitled to compensation for permanent total disability under subdivision 1 of section 15 of the Workmen’s Compensation Law, or for compensation as for the loss of one hand under subdivision 3 of said section.

If a man has two hands he is presumably a more efficient worker and can receive higher wages than if crippled by the loss of one hand. The method of payment of compensation for the loss of one hand is to allow sixty-six and two-thirds per centum of the salary which the injured party was earning for 244 weeks. If the injured party had two hands and were earning $20 a week, if he lost one hand he would recover $3,253.33. Another workman having lost one hand before entering the employment would be receiving say $10 a week for less efficient service. If that workman lost the second hand in the service, if the claim of the insurance carrier is right, he would recover for 244 weeks at $10 a week, or $1,626.61. So that for the loss of the second hand, which had its double value on account of the previous loss of the first hand, under this system he would be entitled to recover only half as much as for the loss of the first hand. This anomalous result would indicate that the Legislature could not so have intended. By subdivision 1 of section 15 the loss of both hands shall presumably constitute permanent total disability. As compensation for that permanent total disability he is to receive sixty-six and two-thirds per cent of the average weekly wages that he is then earning. As the man with one hand is presumably earning less wages than a man with two hands, to allow for the loss of the second hand as a permanent total disability, a percentage of the weekly wage that he was then earning would be in complete harmony with compensation to one who had lost both hands by the accident, who receives his sixty-six and two-thirds per cent upon the greater wages that he was earning at the time of the accident.

Moreover, this reasoning accords with the rule which seems to be laid down in subdivision 6 of section 15, which provides that the fact that an employee has suffered previous disability shall not preclude him from compensation for a later injury, “but in determining compensation for the later injury or death his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury. ” Oases are cited upon the Attorney-General’s brief which indirectly lend support to his contention that the claimant has the right to recover as for a permanent total disability. But the decision may well rest upon the logic of the situation, in view of the fact that the amount of compensation depends upon the weekly wage, and the weekly wage is affected by his crippled condition at the time of the accident.

In answer to the question certified, we decide that claimant is entitled to recover as for permanent total disability.

All concurred (Kellogg J., in result in memorandum), except Woodward, J., dissenting.

Kellogg, J. (concurring in result):

The claimant had his left hand amputated in 1892. On July 6, 1914, he lost his right hand, for which he asks compensation. The only question is whether his case comes within subdivision 1 of section 15 of the Workmen’s Compensation Law, which provides for total permanent disability, or subdivision 3 of that section, which provides for permanent partial disability.

Subdivision 1 provides the compensation for total permanent disability, and then provides: ‘ Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts. ”

Subdivision 3, entitled “Permanent partial disability,” provides compensation “in case of disability partial in character but permanent in quality.” Among the disabilities there enumerated is found the loss of a hand. Subdivision 6 of the section is entitled “Previous disability,” and provides that the fact that an employee has suffered previous disability shall not preclude him "from compensation for a later injury, nor preclude compensation for death resulting therefrom, but that in determining compensation for the later injury or death his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury.

We have seen that subdivision 1, after enumerating certain disabilities, continues: “ In all other cases permanent total disability shall be determined in accordance with the facts; ” therefore, there may be total permanent disabilities other than those specifically mentioned. The" Commission has found that the loss of claimant’s hand was a permanent total disability, and such would naturally be the result. Subdivision 3 does not provide for the loss of a hand where it results in total disability, but only applies to such loss where the resulting disability is partial in character but permanent in quality.

The claimant by the accident has' lost all the ability he had of earning a living. The disability is, therefore, total. His wages were evidently based upon the fact that he was previously partially disabled, and, therefore, the compensation to be awarded to him will be based upon such wages.

Within the clear reading and spirit of the statute it is purely a question of fact whether by the accident the claimant was rendered totally permanently disabled and the Commission has found the facts in his favor. He is, therefore, entitled to compensation for a total permanent disability.

Question certified answered in the affirmative.  