Holstein v. State Compensation Director

• Decision Date: 15 December 1965
• Docket Number: No. 12462,12462
• Citation: 150 W.Va. 315,145 S.E.2d 455
• Court: West Virginia Supreme Court
• Parties: Raymond G. HOLSTEIN v. STATE COMPENSATION DIRECTOR and Union Carbide Corporation, a corporation.

Page 455

145 S.E.2d 455

150 W.Va. 315

Raymond G. HOLSTEIN v. STATE COMPENSATION DIRECTOR and Union Carbide Corporation, a corporation.

No. 12462.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1965.

Decided Nov. 16, 1965.

Dissenting Opinion Dec. 15, 1965.

Syllabus by the Court

1. The minimal loss by severance of a small portion of the first phalanx of the first or index finger of an injured compensation claimant is not a total loss of such phalanx within the meaning of subdivision (d), Section 6, Article 4, Chapter 23, Code, 1931, as amended, and for such loss the claimant is not entitled to a statutory award of 6% permanent partial disability.

2. Substantial loss of the phalanx of a first or index finger of a claimant for workmen compensation must be shown in order to require payment of compensation for the loss of one phalanx of such finger under the provisions of subdivision (d) of the statute.

Benjamin D. Tissue, South Charleston, for appellant.

No appearance for appellee.

HAYMOND, Judge.

This is an appeal upon the application of the employer, Union Carbide Corporation, a corporation, from an order of the Workmen's Compensation Appeal Board entered March 10, 1965, which affirmed the order of the State Compensation Director, now State Workmen's Compensation Commissioner, of October 13, 1964, granting the claimant, Raymond G. Holstein, an award of 6% permanent partial disability for the amputation of a portion of the distal phalanx of the index finger of his right hand.

This proceeding was submitted for decision on September 7, 1965, upon the petition of the employer, the record of this proceeding before the commissioner and the appeal board, and the brief and the oral argument of the attorney in behalf of the employer. There had been no appearance in this Court in behalf of the claimant.

The claimant was injured on February 18, 1964, while engaged in installing a pipe pole support at the plant of the employer in Kanawha County, West Virginia. The support slipped from the grasp of a fellowemployee, caught the claimant's finger between the pole and a bracket, and caused what is described in the physician's preliminary report, from C. D. 7, as an evulsion of the skin of the tip of the right index finger. The claimant was treated by a physician, Dr. Harshbarger, after admission to Thomas Memorial Hospital on the same day of the accident where a laceration of his right index finger was sutured. A report of an x-ray examination of the right hand of the claimant while at the hospital states that there is a soft tissue injury at the index finger and apparently a minimal loss of bone at the distal end of the tuft of the distal phalanx of the index finger indicating a slight degree of amputation and that the stump of the finger is smooth.

There is no indication that the commissioner referred the claimant to any doctor for evaluation of his injury and by order entered April 16, 1964, he granted the claimant the statutory award of a 6% permanent partial disability for the total loss of the distal phalanx. The employer protested the award and asked that the claimant be referred to a physician for examination and report. This was done and the claim was set for hearing. At the hearing the employer introduced two reports of Dr. Kessel. His second report contains these paragraphs:

'In my opinion the amputation of the index finger at a location such as this claimant had his finger amputated is not as disabling as if the entire distal phalanx of the finger were amputated.

'In my interpretation of the Workmen's Compensation Act, and an experienced physician in disability ratings, I would recommend six (6%) percent permanent partial disability which I did at the time of previous examination. If the award of six (6%) percent is not a statutory situation with the loss of a portion of the phalanx of the index finger then I would say from the functional situation, perhaps three (3%) percent permanent partial disability would be adequate.'

As above indicated the director affirmed his initial award of 6% permanent partial disability by his order of October 13, 1964. With its order of affirmance of March 10, 1965, the appeal board filed an opinion which contains these paragraphs:

'We have read Mills v. [State Compensation] Commissioner, 126 W.Va. 704, 29 S.E.2d 633, and Dillon v. [State Compensation] Commissioner , 119 S.E.2d 89, but are of opinion that neither case is controlling here. Where the amputation is beyond the distal phalanx it appears there is good cause for applying the rule which the Director's office uses, i. e., loss of part of the phalanx permits recovery for the entirety. The same reason does not apply to the upper tip of the first or distal phalanx, and the Employer's position possesses good logic.

'However, because the Director has here ruled that Claimant is entitled to the full recovery and, more realistically, because the Employer is in better position to carry this case of first impression to the Supreme Court of Appeals than is the Claimant, we are unwilling to set aside the Director's order, It is affirmed.'

The pertinent provisions of the statute, Section 6, Article 4, Chapter 23, Code, 1931, as amended, are:

'Where compensation is due an employee under the provisions of this chapter for a personal injury other than first-stage silicosis, such compensation shall be as provided in the following schedule:

'* * *.

'(d) If the injury results in the total loss by severance of any of the members named in this subdivision, the percentage of disability shall be determined in accordance with the following table, and award made as provided in subdivision (c) of this section: * * *:

'The loss of index or first finger (one phalanx) shall be considered a six percent disability.

'The loss of index or first finger shall be considered a ten percent disability. * * *.

'(f) The award for permanent disabilities intermediate to those fixed by the foregoing schedule and permanent disability of from one per cent to eigthty-four per cent shall be in the same proportion and shall be computed and allowed by the commissioner.

'(g) The percentage of all permanent disabilities other than those enumerated in subdivisions (c), (d), (e) and (f) of this section shall be determined by the commissioner, and award made in accordance with the provisions of subdivision (c). * * *.'

The employer contends that as there is no total loss by severance of the distal phalanx of the first finger of the right hand of the claimant he is not entitled to the scheduled statutory award of 6% permanent partial disability for the total loss of one phalanx of such finger and that he should have been allowed only a 3% permanent partial disability based upon the medical evaluation with regard to the functional disability of the claimant as set forth in the report of Dr. Kessel.

Though the precise factual situation here involved has not been considered in a prior decision of this Court, the question of the degree of permanent partial disability under the statutory table in Section 6 for the severance of members of injured compensation claimants has been determined in several cases, among which are Vandall v. State Compensation Commissioner, 110 W.Va. 61, 158 S.E. 499; Reed v. State Compensation Commissioner, 112 W.Va. 524, 116 S.E. 282; Pugh v. State Compensation Commissioner, 113 W.Va. 84, 166 S.E. 817; Mills v. State Compensation Commissioner, 126 W.Va. 704, 29 S.E.2d 633; and Dillon v. State Compensation Commissioner, 146 W.Va. 269, 119 S.E.2d 89. In all those cases, however, the facts with respect to the severed portion of the member of the claimant were materially different from the material undisputed facts in this case. For that reason those cases are distinguishable from and are not controlling in the case at bar as an analysis of each of those cases will indicate and disclose.

In the Vandall case, a mandamus proceeding, it appeared that the injury of the claimant resulted in the amputation of four fingers and the palm of his hand and that he had been awarded a 32% permanent partial disability by the commissioner. This Court held that he was entitled to the statutory 50% disability for the loss of a hand. It is clear that the Court regarded the substantial loss of four fingers and the palm of the hand as the equivalent of a total loss of the hand and required an award of the statutory percentage of 50% permanent partial disability for such total loss. That this is so is indicated by these statements in the opinion: 'In this case the entire palm being severed, nothing remains of the hand for the thumb to approximate. The use of the hand as such, is lost as completely as if the thumb were also severed. Therefore under a broad and liberal construction of the statute, which we are obligated to make, we hold that the petitioner has suffered a total loss of his hand because of the severance of the palm and fingers.'

In the Reed case, also a mandamus proceeding, it appeared that the claimant's leg was crushed below the knee and that amputation was first made at the knee joint but that it later became necessary to amputate the leg at a point four inches above the knee. He was awarded compensation for a 45% permanent partial disability. After that award was paid the claimant claimed that he was entitled to a 50% permanent partial disability under the statute and upon the refusal of the commissioner to make such award he instituted a mandamus proceeding in which this Court held that he was entitled to a 50% permanent partial disability award under the statutory provision for the loss of his thigh which is defined as the proximal segment of the leg or hind limb between the knee and the trunk which consists of a single bone, the femur. It is clear that the Court regarded as substantial the loss of a portion of his leg above the knee which, unlike the finger here involved, consisted of only one bone or segment,...