Millers' Indemnity Underwriters v. Huffaker

LEVY, J. (after stating the facts as above). Appellant asserts that the loss of the fingers and a part of the palm of the hand, leaving the thumb and about one-half of the palm -next to the thumb not injured or affected, does not amount to the total loss of the use of the hand, and the injury would fall under the schedule of compensation for the specific injuries to the fingers and metacarpal bones provided for in the Employers’ Liability Act (article 5246—21, pt. 1). The injury suffered by the employee was as is described above. There is no evidence from a vocational point of view that the extent of the injury incapacitated the claimant from engaging in his particular occupation or vocation, or for employment permitting or involving the use of the hand as injured. There was no injury to the thumb making it impossible to bring the thumb in connection with that part of the palm remaining next to the thumb. In these facts there is not a total loss of the hand, or the use of the hand, for some practical purposes. Compensation for the'injury, then, should have been awarded as for loss of fingers and metacarpal bones, as specified injuries under the statute, and not as for the total loss of the hand or the use of the hand. Article 5246, § 21, pt. 1, R. S.; Barringer v. Clark, 184 App. Div. 695, 172 N. Y. Supp. 398; Carkey v. Island Paper Co., 177 App. Div. 73, 163 N. Y. Supp. 710; Adams v. Boorum & Pease, 179 App. Div. 412, 166 N. Y. Supp. 97. Appellee would be entitled to receive $15 per week for 141 weeks instead of 150 weeks. The appellee by cross-appeals predicates error in refusing to allow the compensation paid in a lump sum or reduced to one payment. The facts do not make it appear that the case is a special one. The facts support the trial court’s conclusion thereon. Texas Employers’ Ins. Asso. v. Boudreaux (Tex. Com. App.) 231 S. W. 756. The judgment is modified so as to give the appellee 141 weeks at $15 per week, payable weekly; and, as so modified, the judgment will be affirmed. The costs of the trial court and of appeal are taxed against appellees.