137 Conn. 228 | Conn. | 1950
From a finding and award by the workmen’s compensation commissioner in favor of the plaintiff for an injury sustained October 21, 1948, the defendants, his employer and its insurer, appealed to the Superior Court, which dismissed the appeal and affirmed the award. The defendants have appealed to this court. We summarize the material facts contained in the commissioner’s finding, which is not subject to correction.
Compensation was paid to the plaintiff for total incapacity until he returned to work November 28, 1948,
The commissioner further found that the plaintiff suffered a permanent partial disability accompanied by a permanent partial loss of earning power and awarded him, from November 28, 1948, when the maximum improvement was reached in the injured finger, $13.68 per week, subject to the statutory limitation and to proper modification if changed conditions in the plaintiffs earning capacity should arise. This sum is the equivalent of one-half the difference between the wages stipulated in the voluntary agreement, $81.05 per week, and the present wage received by the plaintiff, $53.68 per week.
The commissioner’s award, made under the provi-. sions of General Statutes, Sup. 1947, § 1371i (Rev. 1949, § 7431), was not one of specific indemnity for the loss of a fourth finger; it was based upon and was for partial incapacity. The question determinative of the defendants’ appeal is whether the commissioner had discretion under the statute to make an award for partial incapacity rather than for specific indemnity. The commissioner relied upon the decision of this court in Oster
This claim, predicated as it is upon a loss of the plaintiff’s entire little finger, does violence to the facts as shown by the record before us. While the finding does include the words “because of the loss of practically all of the little finger,” the evidence, which we have read in considering the defendants’ attack upon the finding, shows that the only and uncontradicted testimony is that but two-thirds of the finger was amputated and that the stub or third phalanx remains. That this is the fact is in effect conceded by the statement in the defendants’ brief that the “amputation [was] at the second joint.” That a phalanx of the finger remains might constitute a sufficient answer to the defendants’ argument if it were literally and strictly construed. However, we deal with the appeal as raising the broader question whether upon the facts found
The pertinent provisions of §7431, which lack that clarity and definiteness so desirable in an enactment of this kind, appear in the footnote, and in quoting, to facilitate reference, we have divided them into three paragraphs.
The facts were unusual. The previous loss of the plaintiff’s first, second and third fingers rendered the loss of his little finger, which otherwise would have
An award on the basis of incapacity was justified. Reilley v. Carroll, 104 Conn. 569, 576, 134 A. 68. The plaintiff was not entitled, however, to the full amount which the statute prescribes for partial incapacity. By the express terms of the second paragraph, an award, under the circumstances of this case, must be confined to what constitutes " such a proportion of the sum . . . provided for . . . incapacity ... as shall represent the proportion of total loss or loss of use [of the plaintiff’s hand] found to exist.” Upon the facts, it is obvious that "the proportion of total . . . loss of use” which resulted from the injury was of , far greater consequence than was the loss of the two phalanges per se. The plaintiff was entitled to have the proportion of the sum
The defendants’ claim that § 7430 of the General Statutes affected the right of the commissioner to exercise the discretion to which we have referred cannot be sustained, for that section does not apply in cases of partial incapacity, but only in those of total incapacity. Dombrozzi v. Gross & Co., 112 Conn. 627, 632, 153 A. 780.
There is error, the judgment is set aside and the case is remanded for the rendition of judgment returning the case to the workmen’s compensation commissioner to be proceeded with in accordance with this opinion.
In this opinion the other judges concurred.
“compensation for partial incapacity. [If a compensable injury] shall result in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to half of the difference between his average weekly earnings before the injury and the amount he is able to earn thereafter . . ., but [for] no longer than five hundred and twenty weeks. . . . With respect to the following-described injuries [specified in (a) to (1)] 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, but in no case more than thirty-two dollars or less than nine dollars weekly: . . . (j) for the loss of, or the complete and permanent loss of the use of ... a fourth finger, twenty weeks. . . . The loss of, or the loss of the use of . . . two phalanges of a finger shall be construed as ninety per cent of the loss of the finger . . . and the loss of the greater part of a phalanx shall be construed as the loss of a phalanx, and shall be compensated accordingly.
“In case the injury shall consist of the loss of a substantial part of a member resulting in a permanent partial loss of the use of the member, or, in case the injury shall result in a permanent partial loss of function, the commissioner may, in his discretion, in lieu of other compensation, award to the injured person such a proportion of the sum herein provided for the total loss of, or loss of the use of, such member or for incapacity or both as shall represent the proportion of total loss or loss of use found to exist. . . . The word member’ shall include all portions of the human body referred to in subsections (a) to (1), inclusive.
“In case- of an injury to any portion of the body, referred to in subsections (a) to (1), inclusive, or to a phalanx or phalanges of the . . . finger . . . the commissioner may, in his discretion, in the manner hereinbefore provided, award compensation for the proportionate loss or loss of use of the member of the body affected by such injury.”