Summary
In Tetro v. Superior Printing and Box Company, 172 N.Y.S. 722, 185 App. Div. 73, it was held that an award for the loss of the first phalanx, where the claimant lost between one-quarter and one-half of the distal phalanx of the index finger, was erroneous.
Summary of this case from Vince v. Allegheny Pgh. Coal Co.Opinion
November 13, 1918.
Nadal, Jones Mowton [ Edward P. Mowton of counsel], for the appellants.
Merton E. Lewis, Attorney-General, and Robert W. Bonynge, counsel for the State Industrial Commission, for the respondents.
The claimant was granted an award "for the equivalent loss of one-half of the index finger of the right hand." In an agreement between the claimant and his employer the nature of the injury had been stated to be "the tip of index finger of right hand was crushed. The nail taken away and part of the flesh." The report of the attending physician described it as "absence of part of end of index finger." No testimony was introduced at the hearing, but a discussion then had between the attorneys and the members of the Commission discloses that there was a loss of not less than one-quarter and not more than one-half of the distal phalange of the index finger, including a portion of the bone thereof. The X-ray photographs forming part of the record show that the loss more nearly approached a one-quarter than a one-half of the distal phalange. It is a "loss of the first phalange," not of a part thereof, which is made equivalent to the loss of one-half of the finger. (Workmen's Compensation Law, § 15, subd. 3.) It is not necessary that every particle of the first phalange be lost. Yet it is necessary to show that "substantially all of the portion of the finger so designated has been lost." ( Matter of Petrie, 215 N.Y. 335.) A loss of one-quarter of the first phalange is not the loss of the entire phalange. ( Thompson v. Sherwood Shoe Co., 178 App. Div. 319. ) The loss under consideration here was but little more than that considered in the Thompson case. It certainly did not approximate a loss of substantially all of the first phalange which was made the criterion by the Petrie case. The award was, therefore, erroneous.
The award should be reversed and the claim remitted to the Commission for further consideration.
All concurred.
Award reversed and matter remitted to the Commission.