| IN RE: ELLIS BLANKENSHIP | ) | DOCKET NO. 30,210 |
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| Claim No. F-527241 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Ellis Blankenship, by
- Clarence Fidler, Counsel of Record, and
- Associate Counsel,
- Jager, Austin & Culver, per
- C. E. Austin and William J. Van Natter
- Employer, M. R. Smith Shingle Company,
- None
- (In attendance: William A. Hartley,
- Authorized Representative)
- Department of Labor and Industries, by
- The Attorney General, per
- Dinah Campbell and David K. Crossland, Assistants
This is an appeal filed by the claimant on February 15, 1968, from an order of the Department of Labor and Industries dated January 15, 1968, which closed the claim with a permanent partial disability award of the amount allowed by law for the loss by amputation of the left ring finger at the proximal interphalangeal joint and the left little finger at the proximal interphalangeal joint. Sustained.
DECISION
This matter is before the Board for review and decision on a timely Statement of Exceptions filed by the Department of Labor and Industries to a Proposed Decision and Order issued by a hearing examiner for this Board on July 3, 1969, in which the order of the Department dated January 15, 1968, was reversed and this matter remanded to the Department with instruction to award the claimant an additional unspecified disability award of 10 per cent of the amputation value of the left thumb at the metacarpophalangeal joint. [2]
The Board has reviewed the evidentiary rulings of the hear- ing examiner and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The issue presented by this appeal is the extent of the claimant's disability on January 15, 1968, resulting from an industrial injury of March 8, 1967.
The claimant contends on this appeal that amputations of his left little finger and left ring finger, at the middle joint, resulted in a degree of disability to be measured not only by the actual amputation value of the injured fingers as set forth in the statutory schedule, but also further disability based upon general loss of function of the hand. It is the claimant's theory of the case that the loss by amputation of portions of the little and ring finger of the left hand resulted in further disability best measured by the diminished usefulness of the thumb and general loss of grip. In support of this contention, the claimant presented medical testimony that this added disability is best measured by reference to loss of function of the thumb. The claimant's medical testimony is that the amount of this additional disability is equal in degree to 10 per cent of the loss of function of the thumb at the metacarpophalangeal joint.
The Department, on the other hand, contends on this appeal and in its exceptions to the Proposed Decision and Order that the award made by the Department in its order of January 15, 1968, of the amputation value of the left ring finger at the middle joint and the amputation value of the left little finger at the middle joint, is a proper computation of the claimant's disability and should not be disturbed.
Our careful review of the record convinces us that the Department's exceptions have merit and its position in this [3] matter must be sustained as a matter of law.
The section of the statute with which we are here concerned is RCW 51.32.080. A study of the schedule of awards for amputations involving the hand and arm reveals that each part of the hand, each finger, has been assigned a value based upon the total value of the hand as a whole. It is evident, from the fact that different values are assigned to different fingers, the greatest value being assigned to the thumb, that when these awards are totaled, one has arrived at the same award as that set forth in the statute for total loss of function of the hand by amputation. For example, if one loses by amputation the index, middle, ring, and little fingers at the metacarpophalangeal joint (total loss of each finger), the combination of awards for this ($8,100.00) is equal to the award one receives for loss by amputation of all fingers except the thumb at the metacarpophalangeal joints (also $8,100.00). If the thumb is also lost and one adds to the prior award the award for loss of the thumb, ($5,400.00) one arrives at the figure of $13,500.00. This is the amount set forth in the statute to be awarded for an amputation of the arm at any point below the elbow joint distal to the insertion of the biceps tendon, which, in lay terms, is tantamount to amputation just above the wrist. Thus, the statute contemplates that when all of the fingers and the thumb have been lost from a hand, or any combination thereof, that this is tantamount to loss of function suffered should the hand have been amputated at or slightly above the wrist.
The Legislature, therefore, in setting forth the specified awards for loss by amputation, included in that computation the respective value of that member with regard to the whole. For this reason, testimony by the claimant's medical witness, Dr. Donald R. Brice, reveals that Dr. Brice was unaware of this [4] element of our statute. We note that Dr. Brice, an osteopath, never saw the claimant and testified from x-rays and operative reports. It is evident from his testimony that he was under the impression that the awards set forth in the statute for individual fingers did not contemplate the relationship of the individual fingers to the overall function of the hand. It was from this misunderstanding of the statutory schedule that Dr. Brice concluded that the "extrinsic" loss of function (loss of function to the hand as a whole as opposed to loss of the function of the individual parts thereof) was not included in the statutory scheme.
Dr. Morris J. Dirstine, the attending hand surgeon, testified in support of the Department's closing disability award.
In the absence of a showing of specific loss of function in any other part of the hand than the amputated fingers, we must conclude that the Departmental award was correct in fact and law.
FINDINGS
Based on the record made at the hearings held in this matter, the Board finds:
- On March 8, 1967, while in the course of his employment for the M. R. Smith Shingle Company, the claimant herein, Ellis Blankenship, suffered an industrial injury to his left ring and left little fingers. On March 16, 1967, the claimant filed a report of accident with the Department of Labor and Industries. The claim was allowed, and on January 15, 1968, the Department issued an order closing the claim and awarding the claimant a permanent partial disability award of the amount allowed by law for amputation of the left little finger at the proximal interphalangeal joint and for amputation of the left ring finger at the proximal interphalangeal joint. On February 15, 1968, the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals, and on March 8, 1968, this appeal was granted.
- Appellate proceedings were conducted before [5] the Board of Industrial Insurance Appeals, and on July 3, 1969, a hearing examiner for this Board entered a Proposed Decision and Order in connection with this appeal. There after, within the period of time provided by law, exceptions were filed and the case referred to the Board for review as provided by RCW 51.52.106.
3. The injury suffered by the claimant resulted from his left hand being caught in a power saw. As a result thereof, he underwent three surgeries. Ultimately, his left ring finger and little finger were amputated at the level of the middle joint.
4. On January 15, 1968, the claimant had no disability resulting from his industrial injury of March 8, 1967, of any kind other than that represented by the amputation of his left ring and little finger at the middle joint.
CONCLUSIONS
Based on the foregoing findings of fact, the Board concludes:
- This Board has jurisdiction of the parties and the subject matter of this appeal.
- The claimant is entitled, under the provisions of the Washington Industrial Insurance Act, to the awards specified as "loss by amputation of the left ring finger at the middle joint" and "amputation of the little finger at the middle joint."
- The order of the Department of Labor and Industries issued herein on January 15, 1968, is correct in fact and law and must be sustained.
It is so ORDERED.
Dated this 8th day of January, 1970.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
ROBERT C. WETHERHOLT Chairperson
/s/
R. M. GILMORE Member
/s/
Revised Code of Washington, Section 51.52.120(2) provides:
"If, on appeal to the board, the order, decision or award of the department is reversed or modified and additional relief [6] is granted to a workman or beneficiary, or in cases where a party other than the workman or beneficiary is the appealing party and the workman's or beneficiary's right to relief is sustained by the board, the board shall fix a reasonable fee for the services of his attorney in proceedings before the board if written application therefor is made by the attorney, workman or beneficiary. In fixing the amount of such attorney's fee, the board shall take into consideration the fee allowed, if any, by the director, for services before the department, and the board may review the fee fixed by said director. Any attorney's fee set by the department or the board may be reviewed by the superior court upon application of such attorney. Where the board, pursuant to this section, fixes the attorney's fee, it shall be unlawful for an attorney to charge or receive any fee for services before the board in excess of that fee fixed by the board. Any person who violates any provision of this section shall be guilty of a misdemeanor."