Thompson v. Frank IX & Sons

MORRIS, Judge. The sole issue for consideration on this appeal is whether plaintiff is entitled to be paid compensation for disfigurement after having previously received compensation for the permanent partial disability of his hand. [354] The rate of compensation payable to employees under the North Carolina Workmen’s Compensation Act is set forth in G.S. 97-31, which provides in pertinent part: “In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement, to wit: (12) For the loss of a hand, sixty-six and two-thirds percent (66%%) of the average weekly wages during 200 weeks. (13) For the loss of an arm, sixty-six and two-thirds percent (66%%) of the average weekly wages during 240 weeks. (22) In case of serious bodily disfigurement for which no compensation is payable under any other subdivision of this section, but excluding the disfigurement resulting from permanent loss or permanent partial loss of use of any member of the body for which compensation is fixed in the schedule contained in this section, the Industrial Commission may award proper and equitable compensation not to exceed seven thousand five hundred dollars ($7,500).” (Emphasis supplied.) Thus, G.S. 97-31(22) entitles an employee to compensation for certain disfigurements. However, the first sentence of the statute provides that when disability is paid according to the schedule, such compensation is “in lieu of all other compensation, including disfigurement.” Plaintiff received permanent partial disability based on “25% loss of use of left hand.” According to the terms of G.S. 97-31, this precludes him from receiving additional compensation for disfigurement to the hand. The question, therefore, is whether the scars on plaintiff’s forearm constitute disfigurement to the hand. Of course,- in construing the statute, we are guided by the principle that words are to be given their common and ordinary meaning unless they have a technical significance or another meaning is apparent from their context. Power [355] Co. v. Clayton, 274 N.C. 505, 164 S.E. 2d 289 (1968); In re Watson, 273 N.C. 629, 161 S.E. 2d 1 (1968). Some courts have defined “hand” for purposes of workmen’s compensation to mean all portions of the arm below the elbow joint. Western Construction Co. v. Early, 81 Ind. App. 490, 142 N.E. 396 (1924); Gondak v. Wilson Gas Coal Co., 148 Pa. Super. 566; 25 A. 2d 854 (1942); National Surety Corp. v. Winder, 333 S.W. 2d 450 (Tex. Civ. App. 1960). Other jurisdictions hold that the hand includes the phalanges, or fingers and thumb, the metacarpus, or hand proper and the carpus, or wrist. Finoia v. Winchester Repeating Arms Co., 130 Conn. 381, 34 A. 2d 636 (1943); Pittsburgh Plate Glass Co. v. Williams, 406 P. 2d 994 (Okla. 1965). We believe that the latter definition better conforms both to the natural and ordinary meaning of the term as well as to common sense. Accordingly, we hold that “hand,” as used in G.S. 97-31(12), refers to the fingers and thumb, the hand proper, and the wrist. The findings of fact describe both scars on plaintiff’s left forearm as beginning “above the wrist.” Likewise, defendants state in their application for review that the hearing commissioner should have found that “the scarring extends down the arm on both sides to a point slightly above the wrist.” (Emphasis supplied.) Thus, there is no evidence which indicates that the scars extended to plaintiff’s wrist. Consequently, they cannot be considered to have been incorporated into settlement paying plaintiff 25% permanent partial disability of his hand. It should be emphasized that we do not, by our decision, authorize double recovery for a single injury compensated pursuant to G.S. 97-31. The evidence in this case tended to indicate that plaintiff’s injury resulted in disability to his hand as well as his arm. Since the settlement related only to partial loss of use of plaintiff’s hand, he was properly entitled to additional compensation for the disfigurement of his arm. The order and award of the full Commission is Affirmed. Judge Arnold concurs. Judge Hedrick dissents.