Sakamoto v. Kemmerer Coal Co.

• Decision Date: 22 April 1927
• Docket Number: 1408
• Citation: 36 Wyo. 325,255 P. 356
• Parties: SAKAMOTO v. KEMMERER COAL CO. [*]
• Court: Wyoming Supreme Court

255 P. 356

36 Wyo. 325

SAKAMOTO v. KEMMERER COAL CO. ^[*]

No. 1408

Supreme Court of Wyoming

April 22, 1927

ERROR to District Court, Lincoln County; JOHN R. ARNOLD, Judge.

Proceeding under the Workmen's Compensation Act by K. Sakamoto claimant, against the Kemmerer Coal Company, employer. To review an award for permanent partial disability, claimant brings error.

Reversed and Remanded with Directions.

D. A Preston and Ray E. Lee, for plaintiff in error.

The court erred in making an award for permanent partial disability; the evidence, which was not disputed by defendant company, showed permanent total disability; a case directly in point, except that claimant saved one finger on each hand is In re Septimo, (Mass.) 107 N.E. 63; 254 S.W. 441; 309 Ill. 215; Bruce v. Taylor, (Mich.) 158 N.W. 153. Permanent total disability is defined by statute; Chaper 60, Sec. 10, Laws 1923. The definition is sufficiently flexible to include any condition permanently incapacitating the workman from doing work at any gainful occupation; claimant should have been awarded $ 4,000.00.

The following authorities apply: Carter Oil Co. v. Gibson, (Wyo.) 241 P. 219; Rockwell v. Lewis, 154 N.Y.S. 893; Ray v. Packing Co., 122 Me. 108; Coal Co. v. Industrial Commission, (Ill.) 140 N.E. 858; Mining Co. v. Industrial Commission, (Ill.) 140 N.E. 29; Bishop v. Underwriters, (Tex.) 254 S.W. 411; In re Buckley, (Mass.) 105 N.E. 979; Feinman v. Mfg. Co., 155 N.Y.S. 909; Vishney v. Iron Co., (N. J.) 95 A. 143.

T. S. Taliaferro, Jr., and Arthur-Lee Taliaferro, for defendant in error.

The thumbs on each hand were uninjured; the use of the fingers was not wholly destroyed; Sec. 4334 C. S., as amended by Chapter 60, Laws 1923, contains a schedule that applies; the evidence showed that the disability was of a permanent partial character; Skyes Co. v. Industrial Commission, 145 N.E. 401; Keyworth v. Atlantic Mills, 108 A. 81; Chebot v. State Commission, 212 P. 792; Ballou v. Commision, 129 N.E. 755. Awards cannot be based upon expert opinion, but must be predicated on the facts; Gillette, Indirect and Collateral Evidence, Section 208; Hamrick v. State, 34 N.E. 3; Brown v. Mitchell, 36 L. R. A. 74; Flannagan v. State, 32 S.E. 81; Motey v. Pickle Marble, etc., 74 F. 159; 5 Enc. of Evidence p. 529. The Septimo case is not in point, as we read it, as it involved temporary total disability; the facts are not reviewable without the evidence; State ex rel District Court, 158 N.W. 700. Other cases cited are likewise inapplicable in the facts; defendant relies upon the rule in Carter Oil Co. v. Gibson, (Wyo.) 241 P. 219; a discussion of autoptic evidence will be found in Wigmore on Evidence, Vol. 2., Ch. 37, Secs. 1150-1168 and Rockwell v. Lewis, 154 N.Y.S. 893, which latter case, however, is not in point for the reason that the New York law makes the loss of use of a member, equivalent to the loss of a member; we find nothing in the list of authorities, cited by plaintiff in error, applicable to the case at bar.

RINER, District Judge. BLUME, Ch. J., and BROWN, District Judge, concur.

OPINION

RINER, District Judge.

This is a proceeding in error to review an award made by the District Court under the Workmens' Compensation Act, (Comp. Stat. 1920, Sec. 4315-4348, Chap. 138 Laws 1921, Chap. 60, Laws 1923), for permanent partial disability in favor of one K. Sakamoto hereinafter designated as the "claimant," a miner in the employ of the Kemmerer Coal Company hereinafter called the "company." It is urged by the claimant against the award, substantially, that the record evidence does not sustain it but, on the contrary, establishes claimant's permanent total disability. Whether or not this is so is the main question to be disposed of here.

The bill of exceptions recites that the parties conceded the following facts were undisputed: That since March, 1924, to and including December 6, 1924, claimant had been employed by the Coal Company as a miner; that on the date last mentioned he was injured as a result of an accident which occurred while claimant was engaged in the duties of his employment; that the accident was not due solely to the culpable negligence on the part of claimant; and that disability had lasted from the date of the accident to the date of trial, November 17, 1925.

The serious character of the injury is thus detailed in the award of the trial court:

"The injured workman's fingers on both of his hands were caught in the wheel of the McGinty prop while he was in the act of starting a car, which resulted in the loss of all his eight fingers."

The claimant offered the testimony of four witnesses, himself and three physicians. The company offered no evidence and contented itself with cross-examination of claimant's witnesses. After explaining the nature of his injury, it appearing that his fingers with some of the attached tendons were pulled off, rather than cut off, by the accident, the claimant testified that as regards feeding himself he could just about hold a small spoon; that is, he could do that and nothing else and he is pretty "weak on the thumb and can't hold anything heavy if on the spoon;" that he could not hold a knife or fork or a big spoon; that some one else has to cut his meat and food; that his friends and neighbors had to help him dress and undress; that his hands ache every hour or so at night. On Cross-examination he testified that he could move his thumb but the effort produced a feeling of sickness; that he cannot move the middle finger of his left hand; that he cannot make the thumb of the left hand touch the little finger thereof; that he could with effort stretch out the thumb of both hands and close them. This testimony stands in the record undisputed.

Dr. Stafford of the hospital staff, to which claimant was taken, immediately following the accident, testified that all of stumps of the fingers were amputated after the accident; that on the right hand there were no fingers, no flexor muscles or tendons left, and on the left hand there were flexors of only two fingers left, two of them being pulled out. On cross-examination this witness said that the thumbs on the hands were "the same as they always were;" that half of the first joint of the little finger was amputated on the left hand; that the ring finger of the hand last mentioned was amputated at the second joint; that the third or large finger of the left hand was entirely removed, and the index finger thereof amputated at the second joint. Further testimony of this witness was to the effect that claimant has nothing to grip to but the thumbs will become stronger; that on the left hand practically the entire function of the index finger is lost with the exception that he has something to grip to, but not being left-handed it would take him quite a while to develop it; that the ring finger of the left hand might develop so that claimant would be able to feed himself.

Dr. Marquis, who examined claimant's hand shortly after the latter was dismissed from the hospital in July following the accident, testified that the circulation of the blood in the hands was impeded by the injury; that in his opinion claimant even in the course of time can make no use of the fingers that are left protruding from the left hand; that part of the palm of the right hand is destroyed and as far as the thumb touching it, it would be of very little use; that a certain part of the aching feeling in the hand will last indefinitely; that injuries had caused the right hand to shrink considerably and decrease in point of usefulness; that while claimant has the palms on his hands and the stub of fingers left on one hand, there is not much usefulness there and that claimant has lost three-fourths of the usefulness of the palm.

The trial court, after referring to the fact that the statute of the State of Wyoming provides that permanent total disability means the loss of both legs or both arms, total loss of eyesight, paralysis or other condition permanently incapacitating the workman from performing any work at any gainful occupation, interrogated this witness as follows:

"Now, excluding the loss of both legs, and both arms, and total loss of eyesight, paralysis, the disabilities mentioned, is there any other condition that is known to surgery that in your opinion would incapacitate this workman from performing any work at any gainful occupation?"

To which the witness responded: "The injury that he has here, with both hands injured. The palms of both hands are injured so that they are of very little use to him so far as work would be concerned, and him earning anything." Thereafter counsel for the company asked and was allowed an objection and exception to the question asked by the court.

On cross-examination this witness testified that the claimant can use the thumbs on his palms a little; they are not up to normal; the thumbs will get a little stronger but not much; his grip and holding power will slightly increase; he has very little more use with his palms than if he had lost both; the claimant's case is comparable to that of a workman who had lost both his palms because the palms here are injured so they will not at any time ever be up to what they would have been had he not had the injury.

Dr. E S. Lauzer, a physician who had examined claimant and taken some X-rays of his hands, testified "we could tell only what bony structure he has in the hands. We found on the right hand a total loss of all fingers except the thumb; and on the left hand there are two or three stubs of fingers left besides the thumb. The palms of both hands are as they always have been as far as the bony structure is concerned; that the claimant has lost about nine-tenths of the use of his right hand, and about the...