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FRADY v. PACIFIC MILLS ET AL.

July 30, 1957

CLAUDE FRADY, RESPONDENT,
v.
PACIFIC MILLS AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLANTS.



The opinion of the court was delivered by: Oxner, Justice.

July 30, 1957.

This is an appeal from an order of the Circuit Court remanding a workmen's compensation case to the Industrial Commission for the purpose of making definite findings of fact on certain issues.

On March 30, 1953, claimant, respondent here, sustained an injury by accident arising out of and in the course of his employment. He was furnished medical services and paid temporary total disability from March 30 to September 1, 1953, except for a short period when he was at work. Claim was made for further compensation and other benefits under the Workmen's Compensation Act, Code 1952, § 72-1 et seq. Upon denial of liability by the employer and carrier, a number of hearings were had before Commissioner Clayton. She retired as a member of the Industrial Commission before rendering an opinion and the case was assigned for decision to Commissioner Wideman. In due course Commissioner Wideman filed an opinion wherein she found that claimant had not sustained any serious bodily disfigurement as a result of the accident but had sustained a 25% "general total disability." She further found that his average weekly wage prior to the accident was $59.97 but made no finding as to what he earned after the accident. Her award was as follows:

"It is ordered that the defendants shall pay to the claimant, Claude Frady, temporary total disability at the compensable rate of Thirty-five Dollars ($35.00) per week for the period September 2, 1953 to September 22, 1953.

"It is further ordered that the defendants shall pay to the claimant sixty per cent (60%) of the difference between his average weekly wage before the injury and his average weekly wage which he has been able to earn after the injury, not to exceed $35.00 per week and not to exceed 300 weeks from the date of the injury, less the number of weeks that he has been paid temporary total."

The foregoing opinion and award was affirmed and adopted as the opinion and award of the full Commission. The employer and carrier appealed to the Circuit Court on numerous exceptions which may be briefly summarized as follows:

(1) That there was no evidence to sustain an award for temporary total disability from September 2 to September 22, 1953.

(2) That there was no evidence to sustain a finding of general partial disability.

(3) That the Commission erred in holding that claimant was entitled to any further compensation or benefits beyond that already paid and furnished.

(4) That the Commission erred in not applying the rule that the claimant was required to establish his case by the preponderance of the evidence and in "giving the claimant the benefit of the doubt according to law."

(5) That if the claimant is entitled to any compensation beyond that already paid, it should be on the basis of 60% of the difference between $59.97, his average weekly wage at the time of the accident, and $52.00, the amount which the employer and carrier contend that he was able to earn thereafter, or $4.78 a week, and only for such period of time, not exceeding 300 weeks, that such period of partial disability continued.

(6) That since the Commission found that the general partial disability was 25%, claimant would in no event be entitled to more than 60% of 25% general partial disability, based on an average weekly wage of $59.97, making a compensable rate of approximately $9.00.

The Circuit Judge held that the evidence was conflicting as to whether claimant was totally disabled from September 2 to September 22, 1953, and as to whether he was partially disabled after the latter date. Questions 1, 2, and 3 above enumerated were accordingly decided adversely to the employer and carrier. With reference to Question 4, the Circuit Judge construed the language of the Commission as holding "that the evidence preponderated in favor of the claimant" but stated that inasmuch as the case must go back to the Commission, he was directing that body "to state in its finding of fact whether or not the evidence preponderates in favor of the claimant." He declined to pass upon Questions 5 and 6 because there had been no determination by the Commission as to what claimant was able to earn after the accident. He held under Poole v. E.I. DuPont De Nemours & Co., 227 S.C. 232, 87 S.E.2d 640, 643, that the award as to partial disability was too indefinite. After concluding "that the Commission should have ruled as a matter of fact upon whether or not the claimant was totally temporarily disabled ...


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