151 N.Y.S. 307 | N.Y. App. Div. | 1915
Lead Opinion
Thomas Petrie was at work for the Oneida Steel Pulley Company on the 10th day of July, 1914, and was engaged in operating a punch press. His fingers were caught between the punch and die in such a manner that the second finger of the right hand had to be amputated at the first joint. The third finger was injured so that the Commission has found as a fact that in “the amputation of the third finger about one-third of the bone of the distal phalange was cut off.” The only question arising upon this appeal is whether this injury to the third finger was such as to entitle the injured man to an allowance of one-half the amount which is provided by the statute for the loss of a finger.
Section 15 of chapter 41 of the Laws of 1914 (Consol. Laws, chap. 61), known as the Workmen’s Compensation Law, provides. that in the case of a loss of the third finger the injured party shall be entitled to sixty-six and two-thirds per centum of the average weekly wages for a period of twenty-five weeks (Subd. 3), and that “the loss of the first phalange of the thumb or finger shall be .considered to be equal to the loss of one-half of such thumb or finger, and compensation shall be one-half of the amount above specified.” The Commissioners, finding the fact as above stated, have allowed the injured man one-half of the twenty-five weeks as for the loss of one-half of the finger, and the appellants urge that as only a part of the first phalange was removed the Commissioners erred in awarding for the loss of one-half the finger. It seems to us that this is taking a limited view of the statute and one not justified by its remedial character.
If the statute had simply provided that in case of the loss of the third finger the compensation should be limited to twenty-five weeks the fair construction would have been that the loss of the use of the finger was intended, and that any injury which destroyed the substantial use of the finger would entitle the injured person to the compensation. The statute sought, however, to limit this liability, realizing that every injury permanent in its nature did not operate to destroy the full usefulness of the finger, and so it was provided that “ the loss of the first phalange of the thumb or finger shall be considered to be equal to the loss of one-half of such thumb or finger, and com
To get the true spirit of the act we have only to read the “ phalange ” clause in full, where, after providing that the loss of the first phalange shall “be considered to be equal to the loss of one-half of such thumb or finger,” it continues: “ The loss of more than one phalange shall be considered as the loss of the entire thumb or finger, ” etc. That is, the loss of any part of the second phalange, however slight or immaterial, shall be construed as a loss of the entire finger, and yet we are asked to hold that in the case of the first phalange the destruction must be entire to warrant a holding that this constitutes a loss of one-half of the finger. Obviously the taking of one-half of the second phalange of a finger would not result in the relative loss that the taking of the first half of the first phalange would. After the first phalange is gone, what remains of the second, be it greater or less, is comparatively unimportant, yet the statute clearly and unmistakably provides that where the loss involves “more than one phalange ” the loss of the whole finger shall be held to have resulted. This, it seems to us, is a legislative construction upon the clause here under consideration. The substantial injury of the first phalange, requiring amputation, is to be understood as involving the loss of one-half of the finger, and if the injury extends beyond the first phalange then it is to be construed as involving the entire finger. 3STo intelligent reason, we believe, can be suggested why. the Legislature should provide that the loss of any part of the second phalange should result in an award for the full value of the finger, while a like substantial injury to the first phalange should not carry an award for one-half of the finger, where the statute has attempted to provide the standard by
Of course a mere pinching of the finger, which does not result in a permanent injury, is not to be construed as the loss of half a finger. No compensation is awarded for the first two weeks (§ 12), except the necessary medical treatment, as provided
The award of the Workmen’s Compensation Commission should be affirmed, with costs.
All concurred (Howard, J., in result), except Smith, P. J., and Kellogg, J., dissenting, each in memorandum.
Dissenting Opinion
I am not prepared to hold that an accident which scrapes off one-tenth of the distal phalange as matter of law causes the loss of that phalange. With the statutes of many States before it when this act was passed, the Legislature has provided a certain compensation for the loss of a phalange, and not for the loss of part of a phalange. Notwithstanding the limitation in the statute under that part of subdivision 3 of section 15 which treats of the “ loss of use,” it seems to me a fair interpretation of the statute must give to a claimant compensation as for the loss of a distal phalange under a finding by the Commission that an injury thereto did cause the substantial loss of the use of that phalange. But there is no such finding in the case at bar, and we are called upon to decide whether the loss of a very small part of a phalange as matter of law constitutes the loss of that phalange, where there is other provision in the statute for compensation in cases not specifically provided for. I vote for a reversal of the determination and the remission of the case to the Commission for their determination of the question of fact as to whether in the case at bar the loss of a portion of the distal phalange has caused the substantial loss of the use of the whole thereof.
The statute fixes the compensation for particular losses and then provides that in all other cases in this class of disability
Award of Workmen’s Compensation Commission confirmed, with costs.
