Industrial Commission v. Chambers , 36 Ohio App. 508 ( 1929 )

This case arises under the Workmen's Compensation Law (Section 1465-37 et seq., General Code). The claimant was an employee of The Standard Lime Stone Company, engaged in breaking and loading stone, and was injured in the course of his employment on February 10, 1923, by a large stone falling on his left hand and crushing the third finger. He was allowed and paid compensation for temporary total disability and injury resulting by reason of the little finger being ankylosed, the second finger ankylosed, and the third finger amputated. In addition to those allowances he claimed compensation for impairment of his earning capacity by reason of the injured hand being shrunken, weak, and stiff, and injuriously affected by changes of temperature. His claim for this additional compensation was disallowed by the Industrial Commission. He appealed to the court of common pleas, which held that it had no jurisdiction and dismissed the action. That judgment was reversed by the Court of Appeals, on the authority of Cleveland Ry. Co. v.Kingan, 23 Ohio App. 95, but without any written opinion, and the case, on being remanded, was tried and resulted in a judgment on October 15, 1928, in favor of the claimant in the amount of $1200.

The Industrial Commission contends that the claimant has had compensation for all the impairment of earning power which he suffered. The evidence discloses that the claimant was left-handed, and that the injuries to the fingers of that hand were very severe, necessitating several operations on different fingers. After these surgical operations infection set in and continued upward beyond the amputation line, affecting the palm of the hand and the metacarpal bones. Incisions were made in the palm of the hand and pus and pieces of bone removed. The evidence clearly justified a finding that, by reason of the infection extending from the fingers into the palm of the hand, resulting in permanent stiffening and weakening of the entire hand, increased impairment of earning capacity resulted. Medical testimony shows that the disability is permanent and is equal to a 66 2/3 per cent. loss of function of the whole hand. The claimant has been paid for impairment resulting from fingers which were amputated and fingers which were ankylosed, but we find nothing in the record showing any compensation for impairment of earning capacity resulting from the shrunken condition of the hand nor from its having become, as a result of the injury, weak and stiff. Certainly if the original injury had been the crushing of one or more fingers, and then infection had set in, spreading to the hand and necessitating its amputation, the claimant would have been entitled to compensation for the loss of the hand. In the present case infection spread to the palm of the hand, and while the physicians have been able to save the hand, it is in a weakened and partially disabled condition, and the case comes within the first paragraph of Section 1465-80, General Code.

It is urged, however, that the claimant has been able to earn compensation since his injury, equal to that which he was earning theretofore. We do not think the record justifies that claim. At the time of his injury he was receiving $30 per week, and apparently had a permanent position. When he had recovered sufficiently to permit him to enter employment he became a watchman in a garage at $28 per week. One of his duties was to change tires on automobiles as occasion arose, and it developed that by reason of his partially disabled hand he was unable to perform that work and therefore left the employment. He was then employed by a gypsum company as a night fireman, working twelve hours a night for seven nights in a week; but one of the duties of his employment was to wheel in coal, and the testimony shows that after a time he was unable to continue that employment by reason of his arm and hand giving out. He tried the barbering trade, but testifies that by reason of his stiffened hand he was unable to handle a razor efficiently. He also had employment with the De Vilbiss Company, at what he denominates light work in assembling and spraying. There were various periods when he was unemployed in between the different jobs on which he was engaged, and we find from the evidence that the compensation he was able to earn was materially less than he was receiving at the time of his injury.

The trial court allowed compensation in a lump sum at $1,200, instead of making an allowance of a fixed sum per week. Undoubtedly the allowance was made in this form because a period of five or six years had elapsed from the date of the injury to the time of the trial, and the sum allowed is very moderate indeed for the increased impairment of earning capacity over and above that resulting from the loss and injury to the fingers. The trial judge may well have found from the evidence that this loss up to the time of the trial amounted to $1,200. The claimant himself would be the only one who was prejudiced by the court's failure to make a weekly allowance for the future in addition to the sum that had accumulated up to the time of the trial.

Finding no prejudicial error, the judgment will be affirmed.

Judgment affirmed.

WILLIAMS and LLOYD, JJ., concur.