Vince v. Allegheny Pittsburgh Coal Co.

I disagree with the statement in the majority opinion that the evidence "did not warrant a finding that more than one-half the phalanx had been lost"; and I find no warrant for the further statement that "if considered a finding of fact [sixth finding of fact], there was no evidence to support it." Even the quoted testimony does not justify these categorical conclusions as a matter of law. It is true that the board made no specific finding as to the exact percentage of the phalange which had been lost, but in my judgment this was not necessary because the sixth finding of fact was sufficient. This was an ultimate finding based upon evidentiary facts, and what the board had said supported that finding. It may have been a mixed finding, but it was not merely a conclusion of law. Of course, whether a finding of fact by the board is supported by competent and substantial evidence is a question of law.¹ It is likewise true that the inferences from the facts established by competent and substantial evidence are for the board to draw, and not for this court.

In its opinion the board said: "The diagram or dismemberment chart discloses that about two-thirds of the distal phalanx was amputated." Dr. Snyder, the maker of the chart, testified that the line on the chart was approximately the line of amputation through the bone. This chart was in evidence, and, if the line of amputation was only approximate, it is nevertheless convincing proof that more than one-half of the phalange was severed. Neither the board nor Dr. Snyder said that only one-half of the phalange had been amputated. The interpretation given to the evidence in the majority opinion could not have been made if there had been applied the principle that the Workmen's Compensation Act is to be given a liberal construction, or the rule that the evidence must be read most favorable to the claimant, in whose favor the finding has been made. Ciotti v. Jarecki Mfg. Co., 128 Pa. Super. 233,238, 193 A. 323; Dosen v. Union Collieries Co.,150 Pa. Super. 619, 626, 29 A.2d 354.

On the other hand, if, as the majority opinion states, the expressions in the board's opinion are vague and its findings not definite, then this case calls for the application of section 427 of the Workmen's Compensation Act of June 2, 1915, P.L. 736, art. 4, as amended and reenacted, 77 P. S. § 877, and the record should accordingly be remitted.

As I view it, this case presented a factual situation for the board to resolve, and, having found for claimant on competent and substantial evidence which establishes that more than one-half of the distal phalange had been amputated, the real question is whether the loss of more than one-half of the phalange, which is certainly a major portion, constitutes substantially all the phalange and supports an award.

Section 306(c) of the amendatory act of June 21, 1939, P.L. 520, 77 P. S. § 513, is the same for the purposes of this case as in the acts of March 29, 1923, P.L. 48, and April 13, 1927, P.L. 186. The board, relying upon In re Petrie, 215 N.Y. 335,109 N.E. 549, held under the latter acts that the amputation of at least one half amounted to substantially all of the first phalange, and awarded compensation for loss of one-half of the member. Osbornev. State Workmen's Insurance Fund, 8 W.C.B. 49; Stang v. Stang, 11 W.C.B. 271. In Matkosky v. Midvale Co., 143 Pa. Super. 197,200, 18 A.2d 102, we indicated the validity of this construction.

The Act of 1939 repealed the provision in the Act of June 4, 1937, P.L. 1552, which expressly provided that the loss of less than the first phalange should be considered equivalent to the loss of one-half of the member. But this does not require or warrant an interpretation of the Act of 1939 that all the first phalange must be lost before compensation is payable under section 306(c).

The New York State Act relating to the loss of the first phalange of a thumb or finger is virtually the same as the Act of 1939. In re Petrie, supra, 215 N.Y. 335, 109 N.E. 549, cited in the majority opinion, states the controlling rule to be that the provisions of the statute providing compensation for the loss of a certain portion of a thumb or finger become operative and applicable when it appears that substantially all of the portion of the thumb or finger so designated has been lost. In that case, as in the present case, more than a half of the phalange had been lost, and compensation was allowed. In Forbes v. Evening Mail,185 N.Y.S. 592, 194 App. Div. 563, compensation was refused because there was a loss of less than one-half of the phalange, but the rule enunciated in the Petrie case was recognized.

I would affirm the judgment.

¹ "In truth the distinction between `questions of law' and `questions of fact' really gives little help in determining how far the courts will review; and for the good reason that there is no fixed distinction. They are not two mutually exclusive kinds of questions, based upon a difference of subject-matter. Matters of law grow downward into roots of fact, and matters of fact reach upward, without a break, into matters of law. . . . . . It would seem that when the courts are unwilling to review, they are tempted to explain by the easy device of calling the question one of `fact,' and when otherwise disposed, they say that it is a question of `law'": Administrative Justice and the Supremacy of Law in the United States, by Dickinson (1927), p. 55.