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JAMES PHILLIPS v. WORKMEN'S COMPENSATION APPEAL BOARD AND UNITED STATES STEEL CORPORATION (12/05/74)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 5, 1974.

JAMES PHILLIPS, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND UNITED STATES STEEL CORPORATION, APPELLEES

Appeal from the Order of the Workmen's Compensation Appeal Board in case of James Phillips v. U.S. Steel Corporation, No. A-67164.

COUNSEL

Roland J. Artigues, with him Galfand, Berger, Senesky, Lurie & March, for appellant.

Richard F. Lerach, with him James D. Strader and James N. Diefenderfer, for appellees.

Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 16 Pa. Commw. Page 7]

This is a workmen's compensation case.

The appellant, a claimant, sustained a laceration of the pad of the first phalange of his right middle finger. Five stitches were required to close the wound. The claimant lost no time from work and has suffered no loss of earning power. He can perform his work as an electrician and is able to tie his shoes, button his shirts and otherwise use the right hand normally except that he is not quite able to make a complete fist. A physician found that the claimant suffers a 19% impairment of the function of the distal interphalangeal joint. The appellant seeks compensation for loss of use of one-half

[ 16 Pa. Commw. Page 8]

    of the finger. A referee and the Workmen's Compensation Appeal Board denied benefits. We affirm.

The following provisions of The Pennsylvania Workmen's Compensation Act*fn1 are involved.

Section 306(c)(15), 77 P.S. § 513(15) (Supp. 1974-1975)

"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 onehalf of the finger. Any greater loss shall be considered the loss of the entire finger."

Section 306(c)(24), 77 P.S. § 513(24) (Supp. 1974-1975)

". . . 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."

In Sims v. American Can Company, 6 Pa. Commonwealth Ct. 423, 296 A.2d 290 (1972), we held that the loss of the use for all practical intents and purposes of the first phalange of a thumb is compensable under Section 306(c)(15), despite the absence in Section 306(c)(24) of any reference to loss of use of one-half of a thumb. The result was required, we concluded, because the Act is remedial.

The instant claimant argues that because Section 306(c)(15) provides compensation for loss of a substantial part of the first phalange, the Sims holding compels the result that a substantial loss of use of the interphalangeal joint is compensable under Section 306(c)(24).*fn2 The fallacy of this argument lies in the fact that

[ 16 Pa. Commw. Page 9]

Section 306(c)(24) provides compensation, not for a substantial loss of use, but for loss of use, which the cases hold means a loss of use for all practical intents and purposes. Wilkes-Barre Iron & Wire Works, Inc. v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 612, 309 A.2d 172 (1973). The claimant did not suffer the loss of the use of his finger for all practical intents and purposes. Further, no construction of the provisions cited could justify the result suggested: that a substantial, but not complete,*fn3 loss of use of a phalange would be compensable, but a substantial, but not complete loss of use of an entire finger would not.

Order

And Now, this 5th day of December, 1974, the appeal herein is dismissed and the Order of the Workmen's Compensation Appeal Board is affirmed.

Disposition

Affirmed.


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