122 A. 79 | Conn. | 1923
The loss of two phalanges and of the greater part of the third phalanx of the second finger is by the statute required to be construed as the loss of the whole finger, and it is admitted that the plaintiff is entitled, in addition to full compensation for total incapacity, to one half of his average weekly earnings for thirty weeks, as for the total loss of the second finger. The matter in dispute is whether he is also entitled to the further award of $3 a week from January, 1921, to May, 1922, as additional partial compensation for incapacity due to the above described condition of the stump between the first and second operation.
General Statutes, § 5352, as amended by § 7 of Chapter 142 of the Public Acts of 1919, carries the subtitle "Compensation for partial incapacity." The general provision for partial incapacity is compensation equal to one half the difference between the average weekly earnings of the injured employee before the injury and the amount he is able to earn thereafter, not exceeding $18 a week nor less than $5. Then follows the specific provision for certain enumerated injuries: "In case of the following injuries the compensation, in addition to the usual compensation for total incapacity, but in lieu of all other payments for compensation, shall be half of the average weekly earnings of the injured employee prior to such injury, for the terms respectively indicated, but in no case more than eighteen nor less than five dollars weekly . . . (j) for the loss of, or for the permanent and complete loss of the use of, a second finger, thirty weeks; . . ." The defendants' claim is that the statute excludes any allowance for partial incapacity *548 due to the loss of a second finger except half earnings for thirty weeks.
Prior to 1919 the statute read: "In case of the following injuries the compensation, in lieu of all other payments [for compensation], shall be half of the average weekly earnings of the injured employee, prior to such injury for the terms respectively indicated." While the statute was in this form the case of Kramer v.Sargent Co.,
In Saddlemire v. American Bridge Co.,
The defendants attempt to distinguish the Saddlemire case, on the ground that the unusual condition creating an additional partial incapacity was in the present case confined to the stump of the amputated finger and did not extend into the hand or into another finger. It is apparent, however, that no distinction based on the mere location of the abnormal condition can be sustained.
Compensation is awarded for incapacity, measured, with more or less accuracy, by loss of earning power, and the point of statutory construction involved is, as theSaddlemire case distinctly holds, whether or not the incapacity in question is one which can fairly be said to be a contemplated consequence of "the loss of, or the complete and permanent loss of the use of," the particular member involved. In this case the Commissioner has found that during the period in question there was a partial incapacity entirely distinct from that due to the loss of the second finger, due to a condition which was not a normal and immediate incident of the loss. It has already been stated that the Kramer and Franko cases were decided prior to the amendment of 1919, which added to § 5352 the words "in addition to the usual compensation for total incapacity." This addition, so far as it affects the prior construction of the section, provides a more liberal measure of compensation because it obliterates the distinction theretofore drawn between total incapacity preceding and following *551 the loss, and thereby reverses the ruling in the Kramer case. The award in the Saddlemire case was made before the amendment, but the reasoning of that opinion is not affected thereby.
There is no error.
In this opinion the other judges concurred.