his eye, has 10 per cent. of the normal vision without glasses and 50 per cent. with glasses, he is not entitled to compensation for total loss of the eye, on the ground that his eyesight has been diminished 90 per cent., since it is his duty to minimize the injury by using glasses.50 But where the injury will permanently destroy the sight of an eye unless the workman submits to an operation, full compensation should be awarded for loss of an eye, not merely for temporary disability; the proper course being to deal with the case as it stands at the time—that is, as a case of permanent disability-and allow compensation for 100 weeks. If the workman chooses later to submit to an operation and is cured, the extent of the intervening temporary disability will be known, and the weekly compensation can be terminated on application to the court for a modification of the order, as the statute authorizes. If the operation proves a failure, the award for permanent disability will stand.51 Loss of the sight of an eye is considered total where the sight remaining in the eye is of no practical value,52 and an operation would not only be very dangerous, but could result in a benefit of no value, unless there be a total loss of the sight of the other eye.53 Where the evidence showed that it was probable that there

earning capacity to that extent. Csuprinski v. Mechanical Mfg. Co., Bulletin No. 1, Ill., p. 105.

50 Id.

51 Fryer v. Mt. Holly Water Co., 87 N. J. Law, 57, 93 Atl. 679.

52 In Cowles v. Wilkenda Land Co., 1 Conn. Comp. Dec. 361, where it appeared that the claimant had sustained an injury to his eye which made it impossible for him to distinguish even the largest objects until they were too close to avoid them, in case of an automobile or car, and that the eye was of no practical use and a detriment to the vision in the other eye, it was held he had suffered a complete and permanent loss of the sight of the eye within section 12 of the Act.

53 In Lewis v. Goodyear India Rubber Glove Mfg. Co., 1 Conn. Comp. Dec. 238, where the claimant had no present sight in his right eye, and an operation to restore the sight would be inadvisable, very dangerous, and probably fatal, and the benefit accomplished only of value in case of total loss of sight of the other eye, it was held the employé had suffered a "complete and

was potential, or possible, vision in the right eye prior to the occurrence of the injury, that the restoration of vision following an operation would be useful only in the event of a great or total loss of vision in the uninjured left eye, that the injury destroyed any possibility of ever restoring sight to the right eye, and that, prior to the injury, the employé had less than one-tenth vision in the right eye, he was not entitled to a specific "additional” compensation provided for in case of reduction of vision to one-tenth of normal with glasses. A schedule giving compensation for total blindness of one eye authorizes compensation under a relative injury provision for partial blindness of one eye, the physical organ being retained.55

§ 164.

54

Arm

The provision of an Act that paralysis of a member shall be equivalent to a "loss" of the member does not authorize classifying

permanent loss of the sight of the eye,", compensable under the schedule (Wk. Comp. Act, pt. B, § 12, subd. [g]).

54 Eldredge v. Employers' Liab. Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 639 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.).

55 (St. 1913, § 2394-9, subd. 5; Laws 1915, c. 378) Stoughton Wagon Co. v. Myre (Wis.) 157 N. W. 522.

"It was held in Northwestern Fuel Co. v. Leipus, supra, that a partial and permanent impairment of the strength and usefulness of an arm was not within the class of injuries scheduled in subdivision 5 of section 2394-9, St. 1913, because that schedule referred to the physical loss of an arm, and mere impairment without loss of the member could not be held to be in that class. The case before us, however, is plainly not within that reasoning. The schedule gives a certain compensation for total blindness of one eye, the physical organ itself being retained, and in the present case there is partial blindness of the eye, the physical organ being retained. The court is of opinion that this injury is logically within the statutory class, and hence that compensation under the relative injury provision of the statute was properly awarded. The relative injury clause in question has been amended by chapter 378, Laws of 1915, so that there is now no doubt of the legislative purpose to make it applicable to all cases of permanent disability resulting from injuries to those members of the body or its faculties named in the schedule, although the member be not severed or the faculty totally lost." Id.

56

a mere impairment of an arm as a loss thereof. An award, for a partial injury to the motion of the arm, of the same compensation as the statute fixes for the loss of the arm, is not in compliance with a statutory mandate that the compensation shall bear such relation to the amounts stated in the schedule as the disabilities bear to those produced by the injuries named in the schedule.57

$165.

Hand, fingers, foot, and ankle

No award can be made for partial loss of a hand under a schedule providing compensation only for a total loss. A hand is incapable of use when its normal use has been entirely taken away; it not being essential that the incapacity of use be tantamount to an actual severance of the hand.59 For example, where the workman's middle, ring, and little fingers are paralyzed, and there is such an interference with the circulation that the hand goes to sleep, the hand is "incapable of use," though there is a small amount of mo

56 Northwestern Fuel Co. v. Leipus, 161 Wis. 450, 152 N. W. 856. Obviously the "loss" of a member designated in the schedule has reference, not to the impairment of the member by injury, but to the physical loss of it. All through the schedule there is nothing to indicate that impairment of a member was intended to be loss of a member, or that reduction of the efficiency of the member one-half would be one-half loss of the member. "The loss of an arm at the elbow," or "the loss of a forearm at the lower half thereof," does not mean the impairment of the arm, but the actual physical severance of it. The fact that the schedule so specifically fixes the precise injury for which compensation is allowed excludes the idea that the schedule covers any other or different injury. In every instance the loss is specifically defined. Id.

57 (P. L. 1913, pp. 302, 304) Barbour Flax Spinning Co. v. Hagarty, 85 N. J. Law, 407, 89 Atl. 919, distinguishing Banister Co. v. Kriger, 84 N. J. Law, 30, 85 Atl. 1027, which arose under the earlier statute, wherein the period of time during which compensation should be paid was fixed, whereas, under the amendment of 1913, which now controls, the period is not fixed.

58 (Wk. Comp. Act pt. 2, § 10) Carpenter v. Detroit Forging Co. (Mich.) 157 N. W. 374.

69 (St. 1911, c. 751) In re Meley, 219 Mass. 136, 106 N. E. 559.

62

60

61

tion in the thumb and first finger. Injuries between the elbow and the wrist should be considered injuries to the hand. Where the injury results in complete loss of the index, second, and third fingers, and makes the fourth finger stiff and practically useless, the workman is usually entitled to compensation as for a hand rendered permanently useless, rather than for loss of the particular fingers; 2 but it has been held that where a workman lost the use of four fingers, apparently retaining the use of the rest of his hand, it was not clear that the claimant should be allowed for the loss of the use of the entire hand, the court saying: "It is now claimed that claimant did not lose the use of the hand, but only of the four fingers, and that the usefulness of the remainder of the hand, including the thumb, was practically unimpaired. These seem to be the conceded facts. I am not clear that upon these conceded facts the claimant should have been allowed for the loss of the use of the entire hand. While the four fingers were stiffened, the thumb was uninjured, and the claimant is unquestionably better off than

60 Floccher v. Fidelity & Deposit Co. of Md., 221 Mass. 54, 108 N. E. 1032. 61 Rockwell v. Lewis, 168 App. Div. 674, 154 N. Y. Supp. 893; State ex rel. Kennedy v. District Court, 129 Minn. 91, 151 N. W. 530, which cites (N. J. Sup.) 88 Atl. 953.

In a hearing under the Wk. Comp. Act to ascertain the compensation to be awarded an injured employé, where there are permanent injuries to the hand and arm below the elbow, the court should determine the percentage of total disability of the hand and fix the compensation accordingly. Where the same accident results also in permanent partial disability to the arm above the elbow, the court should determine the total disability of the arm as a whole, including the forearm and hand, and fix the compensation accordingly. It is improper in such a case to divide the injuries into two units, those to the hand and those to the arm. (Laws 1913, c. 467; Gen. St. 1913, c. 84a) State ex rel. Kennedy v. District Court, supra.

A workman's forearm and hand were impaired by an accident to the extent of 75 per cent., and his upper arm to the extent of 8 per cent. The amount awarded was 75 per cent. of what the statute fixes for an arm. It was held that this award was not necessarily incongruous with the statutory provision making amputation between the elbow and the wrist equivalent to the loss of a hand only. Blackford v. Green, 87 N. J. Law, 359, 94 Atl. 401. 62 Rockwell v. Lewis, 168 App. Div. 674, 151 N. Y. Supp. 893.

65

64

if the hand had been taken off or rendered entirely useless. In my judgment, it is unnecessary to determine this, because the award was made by consent of the attorney representing the appellants, and, while the appellants afterward claimed that he exceeded his authority, we are unwilling to interfere with the determination of the Commission that the award should stand." 63 Similar holdings have been made in other cases, but the rule is to the contrary in Illinois. Where the accident necessitating amputation of the first phalange of the third finger is followed by cellulitis of the joints, which makes the remainder of the finger practically useless, the injury is equivalent to the loss of the finger, and claimant cannot recover more than the specific amount provided for such loss by contending that he has not lost the finger, and so bringing the injury under the relative injury clause. In awarding compensation the hands may be considered separately, and, after compensation has

66

63 Cunningham v. Buffalo C. & B. Rolling Mills (Sup.) 155 N. Y. Supp. 797. 64 In De Vito v. Atlantic Insulated Wire & Cable Co., 1 Conn. Comp. Dec. 407, where the claimant's injury necessitated the amputation of the four fingers of the right hand, but left the functions of the thumb unimpaired, it was held he had not suffered "a complete and permanent loss of the use of the hand," entitling him to an award under the schedule, though he was awarded for the loss of four fingers. And in Kilbride v. Pratt & Whitney Co., 1 Conn. Comp. Dec. 688, where the evidence showed that there was a large scar and deformity on the back of the workman's hand, and that he could not hold things with the hand, and the medical evidence estimated a 45 per cent. impairment of the hand, it was held the total and permanent loss of the use of the hand had not been shown.

Under a schedule allowing 60 weeks' compensation for the loss of all the fingers of one hand, where there was, according to medical evidence, apt to be a little use of the first finger and slight movement of the proximal joints, after a careful operation, compensation was awarded for 50 weeks. Higgins v. Hanover & Butler, Rep. Wis. Indus. Com. 1914-15, p. 37.

65 The loss of the first, second, third, and fourth fingers of a right hand, with palm and thumb remaining intact, constitutes a permanent and complete loss of the hand, under paragraph (e), section 8. Swickard v. Arrow Motor Cartage Co., Bulletin No. 1, Ill., p. 172.

66 (Consol. Laws, c. 67, § 15, subd. 3) Feinman v. Albert Mfg. Co., 170 App. Div. 147, 155 N. Y. Supp. 909.