Supreme Court of Texas.
INDUSTRIAL ACCIDENT BOARD.
June 28, 1950.
Rehearing Denied Oct. 4, 1950.
Attorneys & Firms
*270 **671 Fred Parks, Houston, for petitioner-respondent, Miears.
*271 Price Daniel, Attorney General, and L. P. Lollar, Assistant Attorney General, for respondent-petitioner, Industrial Accident Board.
This case requires the construction of the Second-Injury Fund Act, a part of the **672 Workmen’s Compensation Act, Article 8306, Section 12c, Revised Civil Statutes, as amended in 1947, Vernon’s Ann.Civ.St. art. 8306, s 12c.
The stipulation of the facts, on which the case was tried, shows that the petitioner in June 1929, received a non-compensable injury which resulted in the total and permanent loss of the sight of his right eye. On November 9, 1946, he received an accidental injury which resulted in the total and permanent loss of the sight of his left eye. The petitioner was paid by his employer’s insurer, for the second injury, the compensation provided by Section 12c from the Second-Injury Fund and the Board awarded him compensation for 201 weeks, which represented the compensation for total and permanent disability (401 weeks) after deducting therefrom the compensation actually paid for the loss of the second eye (100 weeks) and also the compensation which would have been payable for the loss of the first eye (100 weeks), if that loss had been compensable under the Workmen’s Compensation Act.
The district court on appeal held that deduction should be *272 made only for the compensation paid for the second injury and awarded interest on past due installments of compensation from their due dates, but denied the petitioner’s claim for a lump-sum payment. The Court of Civil Appeals modified and affirmed the judgment of the district court. It held that the Board was correct in deducting 100 weeks for the first injury as well as 100 weeks for the second injury, and that the petitioner was entitled to a lump-sum payment and interest on past due installments and also on the amount of the judgment from its date. Tex.Civ.App., 227 S.W.2d 571.
The problem of the compensation to be awarded to a previously injured workman when he receives a second injury has been troublesome and has led to various solutions by the legislatures and courts. See notes, 44 Mich. L. Rev. 1161; 4 Washington and Lee L. Rev. 112; Annotations, Section 12c. If an employe who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employe had there been no previous injury.’
The Legislature by adopting 292 S.W. at page 206: ‘On first impression it would seem that statutes similar to the particular article under consideration would work a great injustice upon those who have been so unfortunate as to lose an eye or a limb, but upon more mature consideration we can see what we consider to be good reasons for the enactment **673 of such laws. If two men should apply to an industrial concern for employment, one of them having two eyes and the other only one, and the employer knew that if the man with two eyes lost one eye during the employment that he would be entitled to $1,500 compensation, and if the man with one eye lost it he would be entitled to $6,000 compensation, the employer, having to pay a higher rate of insurance because of the additional hazards for the man with one eye, other things being equal, would, if he conducted his business on sensible business methods, give employment to the man with two eyes; and after a careful investigation of the legislation on, and judicial interpretation of the question, we have reached the conclusion that the Texas statute under discussion and similar statutes in other states were enacted for the benefit of persons as a class who enter employment with permanent partial disability rather than to their detriment.’
In spite of the soundness of the reasoning behind the provisions of Sharkey, ‘The Legal Situation as to Second-Injury Cases and the Necessity for Separate Funds for Such Cases,’ U. S. Dept. Labor, Bureau of Labor Statistics, Bulletin No. 577 (1933), p. 146; Scurlock, ‘Workmen’s Compensation Legislation-Enactment of a ‘State-Fund’ Amendment,’ 14 Oklahoma Bar Journal, 1331. In answer to the demand for such a statute, the Legislature in 1947 adopted Chapter 349, Acts, 50th Leg., R.S., p. 690, reading as follows:
‘Section 1. That Article 8306, Section 12c, Revised Civil Statutes of Texas of 1925, be and the same is hereby amended so as to hereafter read as follows:
*274 ‘Sec. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers’ Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; provided that there shall be created a fund known as the ‘Second-Injury Fund’ hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries.
’Sec. 12c-1. If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable only for the compensation payable for such second injury provided, however, that in addition to such compensation and after the combination of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for the total permanent incapacity out of the special fund known as ‘Second-Injury Fund,’ hereafter defined.
‘Sec. 12c-2. The special fund known as ‘Second-Injury Fund’ shall be created in the following manner:
‘(a) In every case of the death of an employee under this Act where there is not person entitled to compensation surviving said employee, the association shall pay to the Industrial Accident Board the sum of One Thousand, Five Hundred Dollars ($1,500) to be deposited with the Treasurer of the State for the benefit of said Fund and the Board shall direct the distribution thereof.
‘(b) When the total amount of all such payments into the Fund, together with the accumulated interest thereon, equals or exceeds One Hundred Thousand Dollars ($100,000) in excess of existing liabilities, no further payments shall be required to be **674 paid to said Fund; but whenever thereafter the amount of such Fund shall be reduced below Fifty Thousand Dollars ($50,000) by reason of payments to such Fund, then payments to such Fund shall be resumed forthwith, and shall continue until such Fund again amounts to One Hundred Thousand Dollars ($100,000) including accumulated interest thereon.
‘Sec. 2. The fact that there is an urgent need to facilitate the employment of handicapped persons including a large number of returning veterans through the establishment of a Special Fund out of which such persons may be compensated *275 when they sustain a subsequent injury, creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be, and the same is hereby suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted.’
It will be noted that this amendment left the former wording of Section 12c substantially unchanged, but added a new clause and two new paragraphs designated 12c-1 and 12c-2 relating to the Second-Injury Fund.
The first question which presents itself is whether Section 12c, as applied to a case like this. If anything, the limitation on the liability of the employer’s insurer is emphasized by the language of Section 12c-1 that ‘the association shall be liable only for the compensation payable for such second injury.’
The opinion in the Gilmore case shows that in that case, as in the case now before us, the first injury was not compensable under the Workmen’s Compensation Law, although no discussion of the effect of that fact on the applicability of Section 12c is a question which is not raised here and we do not decide it, except to hold that the Gilmore case is still applicable to facts such as appear in this case.
The issue presented to us is different from the question decided by the Supreme Court of the United States in Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 69 S.Ct. 503, 93 L.Ed. 611, which is cited by the parties and which was referred to in the opinion of the Court of Civil Appeals in this case. There the question was whether the second-injury fund act was applicable where the first injury was non-compensable, the controverted issue being whether the employer should be liable for total and permanent disability, or on the other hand, whether the second-injury fund should be held liable for the difference between the specific compensation for the second injury considered alone and the compensation for total and permanent disability. It apparently was conceded that this was the correct measure of the fund’s liability, if it was liable at all. In the present case, however, the parties agree that the Second-Injury Fund Act is applicable, the only contest being over the extent of the fund’s liability.
The parties agree that there must be a deduction from the compensation payable for total permanent incapacity, because Section 12c-1 provides that the fund shall be liable for ‘the remainder’ of such compensation. The point at issue is how *277 much should be deducted. The Board insists that there should be deducted the compensation payable for both injuries, considered separately (200 weeks), while the petitioner asserts that only the compensation for the second injury (100 weeks) should be deducted.
A consideration of the language of the statute, as well as the purposes it was designed to serve, leads us to the conclusion that the petitioner’s position is correct. The newly-added clause of Huffman v. Southern Underwriters, 133 Tex. 354, 128 S.W.2d 4; 45 Tex.Jur., ‘Workmen’s Compensation,’ Section 7, and it would therefore not be proper to supply by implication a restriction on the employee’s rights which is not found in the language of the statute.
The construction of the Act we have adopted serves the purpose of compensating the injured employee for the total and permanent incapacity he has actually suffered, without sacrificing the policy of encouraging the employment of physically handicapped workers. The employer’s insurer remains liable only for the compensation payable for the second injury considered alone; the remainder of the compensation is paid out of the fund *278 which is made **676 up of sums which, except for this statute, would be windfalls to insurers in other cases.
The Board urges, however, that the payment of the amount claimed by the petitioner would amount to a double payment for the first injury. This argument cannot be applied to the petitioner in this particular case because the stipulation shows that his first injury was non-compensable and that he in fact received no workmen’s compensation for it. The Board argues further, however, in effect that it would be unfair to discriminate between claimants whose first injury was compensable and those whose first injury was not. Whether such a discrimination should be made is a question which is not now before us, and we do not think it would be proper to decide it in this case. Our holding is merely that where the specific injuries shown by the facts in this case have been suffered by the employee, he is entitled to compensation from the Second-Injury Fund for total and permanent disability after the deduction of only the compensation payable for the second injury.
Out holding is in accord with decisions in other states having similar statutes providing for payments out of second-injury funds. Addotta v. Blunt, 114 N.J.L. 85, 176 A. 105, in this respect being in marked contrast to our own statute.
The Board cites Bennett v. White Coal Co., 288 Ky. 827, 157 S.W.2d 73. These cases, however, do not involve the construction of second-injury fund statutes. The statutes in those cases were intended merely to limit the liability of the employer’s insurer for disability produced by a second injury, the method adopted being to deduct from the compensation for total and permanent disability the compensation which would have been payable for the first injury. We therefore do not consider those decisions persuasive.
We think that the Court of Civil Appeals correctly decided that the petitioner was entitled to the payment of compensation *279 in a lump sum and that both lower courts were correct in awarding judgment for interest, for the reasons stated in the opinion of the Court of Civil Appeals.
The judgment of the Court of Civil Appeals is reversed in so far as it reduced the compensation awarded to petitioner by the district court; otherwise, the judgment of the Court of Civil Appeals is affirmed.