Appeal from the Order of the Court of Common Pleas of Bucks County, in case of Thomas H. Sims v. American Can Company, No. 1479 September Term, 1971.
Robert A. Detweiler, for appellant.
Roland J. Artigues, with him Galfand, Berger, Senesky, Lurie & March, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson.
The question to be decided in this appeal is properly set forth in appellant's brief to be "May a claimant recover for the loss of use of one-half his finger under the Pennsylvania Workmen's Compensation Act?"
This question was answered in the affirmative by the Referee, in the negative by a divided Board, and in the affirmative by the court below. We answer it in the affirmative and, therefore, affirm the court below.
Able counsel for the appellant candidly states that if this court follows the decision of the Superior Court in Yaklich v. Union Collieries Co., 158 Pa. Superior Ct. 55, 43 A.2d 591 (1945), the lower court must be affirmed. If we were disposed to overrule that case, the appellant's argument would be the strongest basis. However, the interpretation of Section 306(c) of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, Art. III, Sec. 306(c), as amended, 77 P.S. § 513, by the Superior Court in the Yaklich case in 1945 has never been changed by the Legislature.
The statutory provisions here involved are:
"§ 306(c)(15) The loss of any substantial part of the first phalange of a finger, or an amputation immediately below the first phalange, for the purpose of providing an optimum surgical result, shall be considered loss of one-half of the finger. Any greater loss shall be considered the loss of the entire finger." 77 P.S. § 513(15)
"§ 306(c)(24) . . . Permanent loss of the use of a hand, arm, foot, leg, eye, finger, or thumb, great toe or other toe, shall be considered as the equivalent of the loss of such hand, arm, foot, leg, eye, finger, or thumb, great toe or other toe." 77 P.S. § 513(24).
The Superior Court in Yaklich expressly rejected the appellant's argument that by not including loss of use of half a finger in sub-section (24), the Legislature meant ...