(concurring).
It appears to me that the fundamental error in this case was the original judgment awarding plaintiff compensation not exceeding 300 weeks on the ground that he was temporarily totally disabled, when the evidence showed that he suffered the loss of the distal phalanx of the right thumb and, as a result of his injury sustained, according to the medical testimony, a 25% disability in his right hand. This loss was of a permanent nature and, as plaintiff admittedly was able to perform work as a longshoreman (he has worked over 600 hours in that capacity since the accident), compensation should have been awarded him in the first instance for the permanent partial loss of use of his right hand.
*427However, defendant failed to appeal and that judgment has dong since become final. In seeking a modification of the judgment, it was incumbent on defendant to show that plaintiff’s disability had diminished. R.S. 23 :1331. But it does not appear to me that there has been any substantial change in plaintiff’s capacity to work forasmuch as the evidence taken at the first trial clearly shows that plaintiff was at that time able to work and the physicians felt that he should engage in work in order to become acclimated to the partial loss of use of his thumb.
I therefore concur in the majority ruling.