McCracken v. Rhyne

264 S.W.2d 226, 196 Tenn. 72, 32 Beeler 72, 1953 Tenn. LEXIS 407
CourtTennessee Supreme Court
DecidedDecember 11, 1953
StatusPublished
Cited by5 cases

This text of 264 S.W.2d 226 (McCracken v. Rhyne) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCracken v. Rhyne, 264 S.W.2d 226, 196 Tenn. 72, 32 Beeler 72, 1953 Tenn. LEXIS 407 (Tenn. 1953).

Opinion

Mr. Justice Tomlinson

delivered the opinion of the Court.

[73]*73This is a workmen’s compensation case in which the sole question involved is the effect to be given the expression “wage of the workman at the time of the injury” appearing in the last paragraph of section 6878(c) of the Code Supplement. The language of this paragraph is:

“In all other cases of permanent partial disability not .above enumerated the compensation shall be sixty per centum of the difference between the wage of the workman at the time of the injury and the wage he is able to earn in his partially disabled condition subject to a maximum of twenty-five dollars per week. Compensation shall continue during disability, not, however, beyond three hundred weeks.” (Italics supplied.)

The facts out of which the question arises are that employee, McCracken, appellant here, received a back injury for which he is entitled to compensation under the above-quoted code provision from Rhyne Lumber Company, employer and appellee here, because the injury resulted in a permanent partial disability. It is an injury “not .above enumerated”, meaning that it is an injury not listed among those specified in the schedule, and resulting in permanent partial disability.

For the fifty-two week period immediately preceding this injury McCracken was regularly and continuously in the employ of this appellee, and his average weekly wage for the fifty-two week period was $32.22. At the time of this injury .and for seven weeks immediately preceding, with the intervening exception of one, the average weekly wage of McCracken was $42.80 per week, due to the fact that he worked forty-nine hours in each of these weeks. The amount he is now able to earn in his permanent partially disabled condition is $25 per week.

[74]*74In computing the amount per week to which McCracken is entitled under the above-quoted provision of the Workmen’s Compensation Act shall the amount which he is able to earn in his partially disabled condition ($25) he deducted from the weekly wage which he was receiving "at the time of the injury” ($42.80), as contended by the appellant, employee, or shall this $25 be deducted from his everage weekly wage for the fifty-two week period immediately preceding the time of the injury ($32.22), as contended by the appellee, employer, and as held by the Chancellor.

The Chancellor recognized merit in the contention of employee, McCracken, because the language of the code section involved is “wage of the workman at the time of the injury”. He called attention, however, to the suggestion of this Court in Crane Enamel Co. v. Jamison, 188 Tenn. 211, 217 S. W. (2d) 945. There it was assumed, without the question being made, that the expression “ at the time of the injury” meant “average weekly wages” as defined by Code Section 6852(c). The Chancellor noted, however, that this question was not there involved, and that the question here involved is, in his opinion, one of first impression in this jurisdiction.

There are a number of decisions in our published reports wherein this Court assumed that the expression “at the time of the injury” as used in the last paragraph of section 6878(c) of the Code means “average weekly wages” as defined by Code Section 6852(c). There are likewise a number of such decisions wherein this Court assumed that this expression “at the time of the injury” meant what it said. In no one of these cases, however, was the question actually involved, unless it be that of Wilkinson v. Johnson City Shale Bride Corporation, 156 [75]*75Tenn. 373, 381-382, 299 S. W. 1056, 2 S. W. (2d) 89. In that case the Court called attention to the fact that this last paragraph of Code Section 6878(c) deals with un-enumerated cases of permanent partial disability as distinguished from enumerated eases of permanent partial disability. Then the Court said “ obviously, therefore, the petitioner’s compensation must he computed by this rule”, meaning the rule provided by Code Section 6878-(c), last paragraph. Then the Court said that “this brings us to the query as to the difference between the wage of petitioner at the time of the injury and the wage he is able to earn in his partially disabled condition.” (Emphasis supplied.)

The Chancellor expressed the thought that confusion and inequity would result many times if the expression “at the time of his injury” be given its natural construction. In regard to that point in the New Jersey case of Huyett v. Pennsylvania R. Co., 86 N. J. L. 683, 92 A. 58, the Court said this:

“The only other point suggested is that the trial judge allowed compensation based on the wages which the decedent was receiving at the time of the accident. These wages were somewhat greater than he had previously been receiving. Section 2, par. 11, subds A’ and ‘b,’ expressly provides that the compensation for temporary disability and for disability total in character and permanent in quality shall be 50 per centum of the wages received at the time of injury. Subdivision ‘c’ bases the compensation on daily wages, while paragraph 12 speaks only of wages of deceased. But we think this must mean wages at the time of injury. This may, indeed, result in injustice to the employer when the employe is paid [76]*76by the piece and his earnings are unusually high at the time of injury, and an injustice to the employe when his earnings are unusually low. That, however, is a defect that the legislature may correct.”

Apropos to the final sentence in the above quotation, the last paragraph of Section 6878(c) was re-written by Chapter 111, Public Acts of 1953. That was after the rights and liabilities of the parties had accrued in the case at bar.

Code Section 6878 provides the formula by which is to be determined the compensation to which an employee under the Workmen’s Compensation Act is entitled for injuries compensable under that section of the act. This formula in every case specifies the number of weeks for which compensation is to be paid. In some cases the amount to be paid per week is to be determined by the ‘ ‘ average weekly wages ’ ’ of the employee. In other cases the statute provides that it shall be determined by the wages he was earning “at the time of the injury”. The effect of the Chancellor’s decree is to substitute the expression “average weekly wage” for the expression “wage of the workman at the time of the injury” at all places where the latter expression appears in this code section.

As a general proposition, the natural conclusion would be that the Court is without authority to substitute in the statute the expression “average weekly wages” for the'expression “wage of the workman at the time of the injury”. Ordinarily such action upon the part of the Court would seem to be an usurpation of a prerogative of the legislature. On the other hand, if there is anything upon the face of the statute which gives a reasonable explanation for use by the legislature of the different ex[77]*77pressions in the different situations it is the duty of the Court to adhere to the wording of the statute in each of the situations.

In those cases in which the statute directed that the ‘ ‘ average weekly wage ’ ’ formula he applied the injuries contemplated had no relation, as a general proposition, to the effect of such injuries on the earning capacity of the employee.

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Related

Wilkins v. Kellogg Co.
48 S.W.3d 148 (Tennessee Supreme Court, 2001)
Dorothy Wilkins v. The Kellog Company
Tennessee Supreme Court, 2001

Cite This Page — Counsel Stack

Bluebook (online)
264 S.W.2d 226, 196 Tenn. 72, 32 Beeler 72, 1953 Tenn. LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccracken-v-rhyne-tenn-1953.