Gorman v. Gulf Mill & Lumber Co. ( 1920 )

OPINION.

St. Paul, Judge.

This is an action under the Workmen's Compensation statute, purely and simply; there is no pretense to any other cause of action. Plaintiff, whilst in defendant's employ, had "two phalanges of the fourth finger of his right hand out off." (sio)

As the physical faots sat up in the petition are admitted in the answer and no evidsnoe was taken thereon, we do not know exactly at what point the flngerB were ampdtutated; and henoe cannot Judge the exact extent of plaintiff's injuries, not haying seen her. Por the words of the statute, and of the petition, towit "I.OSS of a thumb xxx finger xxx first phalange of the thumb x x two phalanges of any finger xxx more than one phalange of the thumb xxx mors than two phalanges of any finger or toe xxx the entire member xxx more than one finger x x a hand x x x a foot, oto, etc," are somewhat ambiguous and may perhaps be understood differently by counsel and by ourselves; of which however we shall say more only when the issue presents itself. In this case we take for the faots what is written.

II.

With the faots as thus stated, and admitted, the statute fixes the compensation to which plaintiff is entitled for the "two phalanges" of the index finger of her right hand; the loss of "two phalanges" *f any finger being considered (by the statute) equal to the loss of tkv one half of.member, and the compensation being fixed at that one half ### specified for theloas of suoh member. She faot that it was plaintiff's "right" hand is irrevelant, sinos fmirabile dlotu) the statute does not distinguish between the right hand and the left. The compensation for this injury is therefore 66jC of the weekly wege for 16 weeks•

III.

Am to the loss of'one phalanx of the fourth finger", there la no compensation fixed by the statute; but "the oourt" may allow auoh compensation "as is reasonable in proportion to the compensation specifically provided in the oases of specific disabilities, not to exceed &o."

It ns therefore within the sound discretion of the District Judge to fix the compensation for this injury; and as he saw the plaintiff and could form an exact idea of the who extent of her injury, we have not seen her and do not know exactly what was meant by the loss of "one phalanx", are in no position to review that discretion; the full facts not being before us. He fixed that compensation at 50$ of wage hew weekly^for five weeks, and we will not interfere.

IT.

It is claimed however that "by reason of said aocident and the loss of the two phalanges and one phalanx aforesaid, the usefulness of her right hand is seriously and permanthtly impaired; that she has lost the strength of said hand; that said hand is of little, if any, service to her". Wherefore she claims additional compensation for 100 weeks funder clause ¿ of the first subdivision of section 8, act 58 of 1918, p. 54)

This claim cannot be allowed. The evidence shows that by reason of the injuries precisely stated in the petition, as and admitted, plaintiff's hand will never beAuseful to her aa it was before; that as yet she has but a very imperfect use of her maimed hand; that her hand is still weak. That is to say, the evidence shows (in effect) simply this, that she has not yet acquired control over her heretofore little-used middle finger, or been able to make it do the work of the lost index finger; that her hand, by non-usage for some weeks, has become weakened for the time being. But all of this will undoubtedly be remedied in time, and is but the natural conaequanoes of the very injuries she received, and for which the law fixes a specific compensation intended to cover that injury and all its natural oonsoquanoes. The oourt therefore can allow no more.

The oaae of Rodriquez vs Gul^--Woodworking Co (#6801) has therefore no application to the oaae before us. Where we Hté found as a fact that the injurias received amounted to more than thesmere loss of the amputated fingers; that the hand was so permanently and completely disabled as to be "loaf to the plaintiff, even though not actually amputated. The oasa here is quite different; we find neither permanent nor oomplete disability of the hand.

y.

What we have Bald just above applies equally to plaintiffs claim for "loss of time"; that was the necessary consequence^ of her injuries, and therefore was included in the statutory compensation.

The judgment appealed from seems oorrect, and it would not be disturbed; except tha1' by oversight the trial Judge fixed the compensation (for 20 weeks) at 50fe of the weekly wage (the petition inadvertently praying for that much only); whilst the statute of 1918 fixes the compensation at 5fi$, and defendant consents to an amendment accordingly, if it be not taxed with the costs of appeal.

The judgment appealed from Is therefore amended by increasing the weekly allowanoe from Pour dollars and five cents ($4.05) to Pour dollars and forty five cents ('‡4.46), and as thus amended it is affirmed; costa of appeal to be borne by plaintiff.

Haw Orleans, La, January 192C