(concurring specially).
I agree that the case should be affirmed, and that attorneys fees should be allowed. However, I find it difficult to distinguish this case on the facts from Boggs v. D & L Construction Company, 71 N.M. 502, 379 P.2d 788, and from Sisneros v. Breese Industries, 73 N.M. 101, 385 P.2d 960.
In Boggs the claimant had injured his knee which resulted in pain in other parts of his body, difficulty in sleeping, trouble in walking, occasional falling, and an entire loss of his wage earning ability. This court limited the recovery to a percentage of the amount provided in the schedule (§ 59-10-18.4, N.M.S.A.1953). The opinion pointed out that the only injury was to claimant’s knee “and any disability to his body, as a whole, was a direct result of this injury.”
It seems to me that the court in Boggs, supra, reasoned that since § 59-10-18.4, supra, provided that the trial court could grant enlarged compensation beyond the schedule in certain cases where there had been actual amputation, it would necessarily follow that since the statute made no such provisions for injuries not requiring amputation, the legislature intended that recovery be limited to scheduled amounts absent amputation.
Professor Larson in 2 Workmen’s Compensation, § 58.20, points out that most cases limit recovery to the schedule amount in a case where there is a loss of a limb, without complications, even though the workman is thereby totally disabled to do any work for which he is qualified. It seems to me that the provision in § 59-10-18.4, supra, discussed above, must have been included to avoid such a result. Does it follow, therefore, that the legislature intended that awards be limited to scheduled amounts where, instead of actual amputation there was an injury to a scheduled member which resulted in disability to the body as a whole and a greater loss of earning capacity than recognized by the schedule ? I do not think so. In this connection, I quote the following from 2 Larson, Workmen’s Compensation Law, § 58.20:
“The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive. A common example of this kind of decision is that in which an amputation of a leg causes pain shooting into the rest of the body, general debility, stiffening of the hip socket, or other extended effects resulting in greater interference with ability to work than would be expected from a simple and uncomplicated loss of the leg.
íjc íf! ij!
“The usual statute provides for both total disability and specific loss of a leg, without expressly saying that either shall be exclusive. It could therefore be argued that, since the act must be given a liberal construction, destruction of the more favorable remedy should not be read into the act by implication in a case where claimant is able to prove a case coming under either heading. Loss of a leg may or may not cause total disability as defined in the preceding section. Tc refuse total disability benefits in such a case, when total disability is otherwise established to the satisfaction of the usual tests, has the effect of ruling out the inability-to-get-work element in a listed group of injuries which just happen to take the form of a neatly classifiable loss of a member. It has already been shown that the inability-to-get-work factor is an indispensable ingredient in the concept of total disability. If this is so, it is difficult to see why this factor is relevant in case of loss of a lung but not in case of loss of a leg. Logically, there is no reason to make the distinction turn on physical extension of the effects beyond the lost member. If, in addition to loss of a hand, there are incidental injuries and pains elsewhere, there is no greater reason why this should entitle claimant to make a showing of de facto total disability based on refusal of employment and to take advantage of the ‘odd-lot’ doctrine than if the loss was an uncomplicated amputation of a leg. * * *
“Somewhat the same problem on a smaller scale arises when a claim is made that loss of all or parts of several fingers amounts to loss of use of the hand. Of course, as has been observed, the finger schedule would not be exclusive if pain or other effects extended beyond the finger. The present question is whether, in the absence of such physical extension of effects, a claimant can be allowed to assert that the cumulative or special result of the individual losses is a loss of use of the hand, or a percentage loss of it. Consistency with the argument just applied to total disability would require that the larger award be permitted. Just as parallel--benefits for loss of a-leg and total disability are provided, so parallel benefits- for loss of specific fingers and loé'á of- the hand stand side by side in the statute. ■ If, under the schedule, loss of' use is equivalent to loss, the claimant* who can in fact show loss of use of his hand should not under liberal statutory construction be deprived of ¿ ’benefit' provided for that loss merely because there-also exists a less favorable remedy. Moreover, just -as total disability should be judged in part in terms of the claimant’s particular qualifications and training, so the question whether loss of several fingers amounts to loss of use of the hand should depend in part on whether the hand has become useless to the claimant for any work for which he is qualified by experience and background.
* . * * ”
Whereas, prior to amendment of § 59-10-18(b) by Ch. 67, § 22. N.M.S.L.1959 (§ 59-10-18.4, supra) the schedule was only applicable upon “loss” of a scheduled member, the section now applies not only in the event of -“loss” but also for “loss of use.” In this variance, however, I perceive of no reason for a different rule or contrary approach. Rather, it seems to me that the rule as outlined in the quotation above is reasonable and furthers the expressed intent of the legislature.
In Sisneros, supra,' a case where the claimant" lost parts of four fingers and suffered a two-inch cut in his hand, the court merely followed Boggs and limited him to the compensation provided in the schedule notwithstanding pain in the hand, arm 'and neck, and loss of 'strength in the arm. ' The court expressed the view that the pain in the other parts of the body-was. incidental to the: injury suffered and could not', be made the basis of a separate or different claim for compensation. That this was correct under the rule announced in Boggs, supra, cannot be doubted.
It seems to me, however, the proper approach is that announced by Larson in § 58.20, quoted above, and that we should apply it here. Gonzales v. Gackle Drilling Co., 70 N.M. 131, 371 P.2d 605, is a case decided under our statute as it existed prior to its amendment in 1959, and is an example of a situation where we recognized the right of a claimant to total permanent disability even though the only injury was the loss of a scheduled member. Subsequent changes do not require a different result.
In the instant case, I would affirm the trial court and if in so doing, Boggs, supra, and Sisneros, supra, must be overruled, I would do that. Since the other members of the court do not agree with this approach, and the result reached in Justice Compton’s opinion is correct in my view, I specially concur in the affirmance and granting of attorneys fees therein ordered.