Kramer v. Sargent & Co.

Wheeler, J. The plaintiff, on December 4th, 1917, suffered an injury to the terminal phalanx of the index finger of his left hand, which resulted on the same day in the loss of this phalanx by amputation, and in,a total incapacity for all labor from the date of injury to the date of hearing, February 8th, 1918, which total incapacity will continue for a period of undetermined extent. The plaintiff claimed one award for the loss of the phalanx, and another award for the total incapacity resulting from such loss. The parties made a voluntary agreement, duly approved by the Commissioner, for the payment of the medical, surgical and hospital expenses, and for the loss of the phalanx, and left open for future determination any question as to total incapacity on account of this injury. The Commissioner confirmed the voluntary agreement, and also made an award for the total incapacity on account of this injury. The claimed errors of the Commissioner are summed up by the defendant in one sentence: “The Commissioner erred in ruling, finding and deciding that compensation for the loss of the phalanx was not exclusive of compensation for total incapacity which occurred after said loss and grew out of the injury to the phalanx.” *28 In Franko v. Schollhorn Co., ante, p. 13, there was a total incapacity preceding the loss of the phalanges, and resulting from an injury, and this continued during the period of the attempt to cure the injury to the finger. In Olmstead v. Lamphier, ante, p. 20, the loss of the leg and the total incapacity resulting from the injury to the shoulder were independent injuries arising out of the one accident. In this case there is one injury and the incapacity follows immediately the loss of the phalanx and results from it. We reached the conclusion in Franko v. Schollhorn Co., ante, p. 13, that under out Act there may a total incapacity and a partial incapacity growing out of the same injury, for each of which compensation may be awarded. But such an award is not, as we think, contemplated by our Act in the case of a loss of a member. All of the specified injuries in § 12 (Rev. 1918, § 5352) for which a specially named award is made, will ordinarily involve a period of'incapacity of varying duration; and this is the reason the rate of the award in these cases is made the same as in the cases of total incapacity under § 11 (Rev. 1918, § 5351). The award was made larger because of the extent of the injury. In § 12 (Rev. 1918, § 5352), the rate of compensation for cases of partial incapacity resulting from injuries not specifically described, is “half the difference between his average weekly earnings before the injury and the amount he is able to earn thereafter” ; while in the cases of partial incapacity resulting from injuries specifically described, the rate of compensation is half of the average weekly earnings of the injured employee. This increased scale of compensation was no doubt intended to cover the loss of the member and the handicap of the future through this loss, but it was also intended to cover all of the injuries resulting from the loss of the member. This compensation is made “in lieu of *29 all other payments, ” that is, it is exclusive of all other payments for this particular injury, which is the loss of the member. This language is used in its ordinary significance. This is made clear by the amendment of § 12 in 1917 (Rev. 1918, §5352), which permits the Commissioner to award a sum proportionate to the amount set forth for total loss, in lieu of all other compensation; thus carrying out the idea of the same language found in the section before amendment. The schedules of rates in the cases of the specified injuries described in § 12 (Rev. 1918, § 5352), are based upon a system of compensation graded to the injury. The employee knows definitely what compensation follows each described injury, and the employer knows the measure of his liability; and this appears to have been precisely the legislative intent. Judgment advised sustaining the appeal. In this opinion the other judges concurred.