Adams Const. Co. v. Cantrell

Mr. Justice Burnett delivered tbe opinion of tbe Court. This is a Workmen’s Compensation suit. Tbe trial judge found tbe plaintiff to be temporarily totally disabled from October 4, 1951 until January 20, 1952 and awarded him compensation at tbe rate of $2-5 per week for such period less tbe amount already paid the petitioner for temporary total disability for a period from October 4, 1951 to November 19, 19-51. The trial court further found tbe petitioner to be permanently, partially disabled to tbe extent of forty percent of bis right hand and awarded him compensation for such injury, which amounted to sixty weeks at $25- per week, or a total of $1,500 plus tbe compensation total, temporary disability first above mentioned. Tbe construction company has duly perfected its appeal, filed briefs, assignments of error and argument has been beard on behalf of both parties before this court. We now have tbe matter for determination. Cantrell, a man 66 years of age was an ordinary laborer. Before working for tbe present employer at tbe time of bis injury be bad worked at odd jobs for short periods of time here and there. He was drawing Social Security at tbe rate of $30 per month and was allowed to make an [677] additional $50 or if lie made more lie Rad to return Ms Social Security. The petitioner went to work for the defendant construction company as a laborer on September 26, 1951 and injured his little finger on his right hand on October 4, 1951. The injury was a fracture of the proximal joint of the little finger of the right hand. When the injury first occurred it was thought that it was nothing more than a skinned place and on the day of the injury he received first aid. The day following the injury a thorough examination was made and he was sent to a doctor where an X-ray was made and it was discovered a fracture to the phalanx of the little finger. The Company’s doctors applied the necessary treatment and reduced the fracture by putting* the fing*er in a position of flexion and in a cast so as to immobilize it in a position, according to them, so that upon healing it would function should it become stiff and therefore not be a hindrance to the workman using it. The finger though did become stiff and ankylosed to such an extent that it was crooked and consequently hard to use. There is testimony in the record of one of the doctors that to use the finger for the purpose of a grip it would be necessary to take the left hand and place the finger over the handle of the tool that the laborer used in his work. There is also evidence in the record that the finger becomes sore when it is attempted to use it in the position that it now occupies. On November 14, the doctors permitted the petitioner to return to work. He did return and worked at light labor, directing truck haulers where to put rock on a road, etc., for a period of four days until the construction company had finished this job. The parties not being able to agree on compensation [678] the present suit was filed and after proof was beard resulted in a judgment for tbe petitioner as above shown. We have very painstakingly and carefully read and considered this record and are clearly of tbe opinion that tbe only injury to tbe employee was that of tbe maximum loss of tbe use of tbe little finger. Of course tbe loss of tbe use of tbe little finger or any other finger on tbe band would affect tbe use of that band to tbe extent of which tbe finger aids tbe use of the band. In our judgment though tbe proof does not show any other loss of tbe use of tbe band than that of tbe loss of tbe use of tbe little finger. It seems to us that tbe burden and tbe preponderance of tbe testimony of Dr. Newell (tbe petitioner’s doctor) is that tbe petitioner, injured workman, suffered tbe total loss of use of tbe little finger and its attendant relation to tbe band and that under tbe Workmen’s Compensation Law as applied in this State this is tbe maximum that tbe injured employee is entitled to collect. Code Section 6878 applying to such a disability provides under subsection (c) thereof that: “In case of disability partial in character but adjudged to be permanent, there shall be paid to tbe injured employee, in addition to tbe benefits provided by section 6875 tbe following: (1) Sixty per cent of bis average weekly wages for the period of time during which be suffers temporary total disability on account of tbe injury, tbe same being subject to tbe same limitation as to minimum and maximum as provided in subsection (a) of this section; and (2) in addition to tbe foregoing be shall receive sixty per cent of bis average weekly wages in accordance with tbe schedule hereinafter set out, provided, that the [679] compensation paid tlie injured employee for tlie period of temporary total disability shall not be deducted from the compensation to be paid under said schedule.” Por the permanent partial disability, the compensation shall be based upon the extent of such disability. In cases included by the following schedule, the compensation shall be that named in the schedule, to-wit: “For the loss of a fourth finger, commonly called little finger, sixty per centum of average weekly wages during fifteen weeks. ’ ’ We think that the overwhelming burden of proof in this record shows that the only loss under our Compensation Act, suffered by the employee, was the total loss of the little finger. It thus results that the judgment below should be modified so as to allow compensation to the employee according to the statute last above quoted. This case comes clearly within the reasoning of this Court in other related cases, as in Black Diamond Collieries v. Carden, 150 Tenn. 336, 265 S. W. 541; Catlett v. Chattanooga Handle Co., 165 Tenn. 343, 55 S. W. (2d) 257; Phillips v. Diamond Coal Mining Co., 175 Tenn. 191, 133 S. W. (2d) 476, and the more recent case of Coker v. Arnco Drainage and Metal Products Co., 192 Tenn. 10, 236 S. W. (2d) 980. This case is clearly distinguishable from that line of cases as Russell v. Virginia Bridge & Iron Co., 172 Tenn. 268, 111 S. W. (2d) 1027, where the injury to a specific member was so severe as to cause the employee total disability. Other cases that have been considered by this Court along the same line as the Virginia Bridge & Iron Co. case, supra, are Plumlee v. Maryland Casualty Co., 184 Tenn. 497, 201 S. W. (2d) 664; Hix v. Cassetty, 186 Tenn. 343, 210 S. W. (2d) 481, and Johnson [680] v. Anderson, 188 Tenn. 194, 217 S. W. (2d) 939, and otters that might be cited. In view of the published opinions in the two lines of cases above cited and the reasoning of the Court therein which applies to the facts of the instant case we see no necessity of further amplifying the matter. It results that the judgment below will be modified in accordance with this opinion and as thus modified is affirmed at the cost of the construction company.