The opinion of the court was delivered by: Oxner, Justice.
We are called upon in this case to determine the correct method of calculating compensation payable under our Workmen's Compensation Act for partial loss, or for partial loss of use, of various members of the body enumerated in Section 72-153 of the 1952 Code.
"Maximum number of weeks compensable for total specific loss X the percentage of specific loss X the weekly compensable rate (6% of average weekly wage, but not more than $35.00, nor less than $5.00)."
On August 5, 1957, the Commission, one member dissenting, announced that effective as of August 1, 1957, the following formula would be applied:
"Average weekly wage X compensation rate X percentage of anatomical loss for the statutory period as specified."
"Application of this formula is subject to the $35.00 maximum and the $5.00 minimum."
Shortly thereafter a number of employers and insurance carries filed a petition in this Court in which they alleged that the new formula adopted by the Commission was erroneous and issued without lawful authority and that the enforcement thereof would work a great injustice. They asked this Court to assume original jurisdiction and declare the new formula null and void and enjoin the Commission from enforcing it. By an order of the Chief Justice, issued on October 26, 1957, we assumed original jurisdiction of the case, restrained the Commission pendente lite from enforcing the new formula and required it to show cause why a permanent injunction should not issue. A return was duly filed by the Industrial Commission and the case heard at the December, 1957, term of this Court.
The sole question presented is the proper formula to be used in determining compensation payable for specific (schedule) partial losses under Section 72-153. This section can better be understood after reviewing the two preceding sections.
Under Section 72-152, as amended in 1953, 48 St. at L. 103, in the case of partial disability resulting from an injury, the employer, except as otherwise provided in Section 72-153, is required to pay "to the injured employee during such disability a weekly compensation equal to sixty per cent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than thirty-five dollars a week. In no case shall the period covered by such compensation be greater than three hundred weeks from the date of injury." This section further provides: "In case the partial disability begins after a period of total disability, the latter period shall be deducted from the maximum period allowed in this section for partial disability."
The first paragraph of Section 72-153 reads as follows: "In cases included in the following schedule, the disability in each case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified therein." There is then separately listed various members of the body for the loss, or the loss of the use, of which compensation is to be paid on the basis of 60% of the average weekly wage for certain specified periods, varying in each case with the nature and gravity of the loss. For instance, "For the loss of a thumb sixty per cent of the average weekly wages during sixty weeks"; "For the loss of a third finger, sixty per cent of the average weekly wages during twenty weeks"; ...