Claim of Clayton v. Foundation Co.

Woodward, J:

The award in this case is for the loss of use to the extent of fifty per cent of the use of the left hand of the claimant. The only evidence as to the injury, outside of the alleged view of the Commissioner, is that of the examining physician. He says that “there is evidence of a laceration of the distal phalanx of left index finger, with missing nail, and changes in the distal phalangeal joint, causing marked restriction of index finger. Likewise evidence of laceration of second surgical joint with tendon involvement and severing of the ligaments, causing stiffness of the distal and middle phalangeal joints of those two fingers.” With this evidence before the Commission the Commissioner said to the claimant: “ Let me see your fingers. These were cuts and lacerations? ” The claimant replied, “ They were cut off here ”— indicating. The Commissioner replied: “Practically three fingers. Let me see you close your hand.” The examining physician gave it as his opinion that the injury was equivalent to the loss of one-third of the hand, but the Commissioner decided that “ from a vocational standpoint ” the injury was equivalent to the loss of one-half of the use of the left hand, and the full Commission has made an award upon this basis. The injuries were received on October 20, 1919.

Under the provisions of subdivision 3 of section 15 of the Workmen’s Compensation Law (as amd. by Laws of 1917, chap. 705)* compensation is awarded “for the loss of a first finger,” “ for the loss of a second finger,” etc. Then it is provided that “ the loss of the first phalange of the thumb or finger shall be considered to be equal to the loss of one-half of such thumb or finger,” and that “ the loss of more than one phalangé shall be considered as the loss of the entire thumb or finger.” Having thus carefully provided what shall constitute the loss of a finger, the statute provides that “ where the injury results in the loss of more than one finger, compensation therefor may be awarded for the proportionate loss of the use of the hand thereby occasioned.” There must be a loss of one finger, as defined in the statute, and an injury in excess of such loss, as a condition precedent to the power to grant compensation for the loss of the use of the hand. A slight injury to three fingers does not constitute “ the loss of more than one finger,” as prescribed in the statute. It is true that it is provided that the “ permanent loss of the use of a hand, arm, foot, leg, eye, thumb, finger, toe or phalange, shall be- considered as the equivalent of the loss of such hand, arm, foot, leg, eye, thumb, finger, toe or phalange,” but this, in the case- of a finger, is for the permanent loss of the use, and not a mere impairment of the use of such finger, for it is provided that “ for the partial loss or the partial loss of the use of a hand, arm, foot, leg or eye, compensation therefor may be awarded for the proportionate loss or proportionate loss of the use of such hand, arm, foot, leg or eye.”

Nothing short of the “ permanent loss of the use ” of a finger is to be regarded as the equivalent of the loss of such finger, and the statute provides (§ 15, subd. 3, as amd. supra) that “ the compensation for the foregoing specific injuries shall be in lieu of all other compensation,” with an exception having no bearing here.

In a case of “ disability partial in character but permanent in quality ” the compensation is provided in a fixed schedule, with careful definitions in subdivision 3 of section 15, and it is only in a case where there is a “ loss of more than one finger,” as a loss is- defined in the law, that there is any justification for making an- award for the “ proportionate loss of the use of the hand thereby occasioned.” There must be an actual physical loss of more than one finger, or a “ permanent loss of the use of ” more than one finger, in order to constitute such loss, and it is only where there is such a loss that the Commission has jurisdiction to make an award for the “ proportionate loss of the use of the hand.” The arbitrary determination of a Commissioner that the loss “ on the basis of the doctor’s opinion and my own judgment from a vocational standpoint is equivalent to the loss of one-half of the hand,” is not a determination, upon evidence, that there has been a “loss of more than one finger,” as such loss is defined in the statute, and the award may not be sustained. Whatever may be thought of the maxim of the common law vfchat “ it is the duty of a judge, when requisite, to amplify the limits of his jurisdiction,” there can be no justification for the State Industrial Commission,, a mere statutory .body, to reach out and bring within the law matters which are excluded by the language of the act. 1

The award should be reversed and the case returned to the State Industrial Commission to make such award as the statute provides.

All concur, except John M. Kellogg, P. J., dissenting, with an opinion in which Kiley, J., concurs.

* Sinee amd. by Laws oí 1920, chaps. 532, 533, 534.— [Rep.