Kenneth GIBBS v. FRASER PAPER, LTD., and Sedgwick James.
[¶ 1] Kenneth Gibbs appeals from the decision of the Workers' Compensation Board that denied his petition for an award of specific loss benefits as the result of an injury Gibbs incurred while he was employed by Fraser Paper, Ltd. Gibbs contends that the loss of use of his left second finger constituted “actual loss” of his second finger within the meaning of 39-A M.R.S.A. § 212(3)(C) (Supp.1996). We affirm the decision of the Board.
[¶ 2] Gibbs suffered a work-related injury in September 1994 when his left second finger was crushed by machinery during his employment at Fraser Paper. Gibbs remained out of work until October 1994 and received benefits for lost time. After a period of light duty, he returned to his regular duties in early 1995. Gibbs filed a petition for award in May 1995 seeking specific loss benefits for the loss of use of his finger pursuant to section 212.
[¶ 3] The Board found that, in addition to lost sensation, his second joint has “basically no[,] almost no motion. It is like a fused joint.” Medical experts assessed between 61% and 65% impairment to the finger. The Board did not assess an exact level for Gibb's loss of use of his finger. It would appear, however, to be something short of total loss of use. The Board denied Gibb's petition, concluding that the plain language of section 212(3) requires that in order to receive specific loss benefits, the employee must suffer a loss of the body part, i.e., the body part must be severed from the employee's body. Concluding that the issue was significant to the operation of the workers' compensation system, the hearing officer requested review of the decision by the full Board pursuant to 39-A M.R.S.A. § 320 (Supp.1996). The Board declined review. Gibb's motion for findings of fact was also denied. We granted his petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp.1996).
[¶ 4] 39-A M.R.S.A. § 212 provides as follows:
§ 212. Compensation for total incapacity
1. Total incapacity. While the incapacity for work resulting from the injury is total, the employer shall pay the injured employee a weekly compensation equal to 80% of the employee's after-tax average weekly wage, but not more than the maximum benefit under section 211. Compensation must be paid for the duration of the incapacity.
Any employee who is able to perform full-time remunerative work in the ordinary competitive labor market in the State, regardless of the availability of such work in and around the employee's community, is not eligible for compensation under this section, but may be eligible for compensation under section 213.1
2. Presumption of total incapacity. For the purposes of this Act, in the following cases it is conclusively presumed for 800 weeks from the date of injury that the injury resulted in permanent total incapacity and that the employee is unable to perform full-time remunerative work in the ordinary competitive labor market in the State. Thereafter the question of permanent and total incapacity must be determined in accordance with the facts, as they then exist. The cases are:
A. Total and permanent loss of sight of both eyes;
B. Actual loss of both legs or both feet at or above the ankle;
C. Actual loss of both arms or both hands at or above the wrist;
D. Actual loss of any 2 of the members or faculties in paragraph A, B or C;
E. Permanent and complete paralysis of both legs or both arms or one leg and one arm;
F. Incurable insanity or imbecility; and
G. Permanent and total loss of industrial use of both legs or both hands or both arms or one leg and one arm.
For the purpose of this subsection such permanency may be determined no later than 30 days before the expiration of 500 weeks from the date of injury.
3. Specific loss benefits. In cases included in the following schedule, the incapacity is considered to continue for the period specified, and the compensation due is 80% of the after-tax average weekly wage subject to the maximum benefit set in section 211. Compensation under this subsection is available only for the actual loss of the following:
A. Thumb, 65 weeks;
B. First finger, 38 weeks;
C. Second finger, 33 weeks;
D. Third finger, 22 weeks;
E. Fourth finger, 16 weeks;
F. The loss of the first phalange of the thumb, or of any finger, is considered to be equal to the loss of 1/212 of that thumb or finger, and compensation is 1/212 of the amounts specified in paragraphs A to E. The loss of more than one phalange is considered as the loss of the entire finger or thumb. The amount received for more than one finger may not exceed the amount provided in this schedule for the loss of a hand;
G. Great toe, 33 weeks;
H. A toe other than the great toe, 11 weeks. The loss of the first phalange of any toe is considered to be equal to the loss of 1/212 of that toe, and compensation is 1/212 of the amounts specified in paragraphs F and G. The loss of more than one phalange is considered the loss of the entire toe;
I. Hand, 215 weeks. An amputation between the elbow and wrist that is 6 or more inches below the elbow is considered a hand;
J. Arm, 269 weeks. An amputation above the point specified in paragraph I is considered an arm;
K. Foot, 162 weeks. An amputation between the knee and the foot 7 or more inches below the tibial table, or plateau, is considered a foot;
L. Leg, 215 weeks. An amputation above the point specified in paragraph K is considered a leg; and
M. Eye, 162 weeks. Eighty percent loss of vision of one eye constitutes the total loss of that eye.
In case of the loss of one member while compensation is being paid for the loss of another member, compensation must be paid for the loss of the 2nd member for the period provided in this section. Payments for the loss of the 2nd member begin at the conclusion of the payments for the first member.
[¶ 5] Gibbs contends that the plain language of section 212 entitles him to the specific loss benefit of 33 weeks for the loss of use of his finger, even though the finger was not severed from his hand. Gibbs quotes dictionary definitions of the word “actual” in the first paragraph of subsection 3 as “existing in reality or in fact,” and of the word “loss” as “that which is gone and cannot be recovered.” Gibbs argues that his finger is retained only for cosmetic purposes, and “for all practical and functional purposes, the body part is lost” or rendered “useless.”
[¶ 6] The employer contends that pursuant to plain language, the phrase “actual loss” means physical loss of the finger as opposed to the loss of function. The employer relies on our statement in Clark v. International Paper Co., 638 A.2d 65, 67 (Me.1994), contrasting former section 56 of title 39 that provided presumed loss benefits for the “loss of functioning” of a specific body part with the current section 212 that requires the “actual loss” of a body part. Although the interpretation in Clark is dictum, we did carefully consider the difference between the former act and the current act, concluding that the current act requires “actual loss.”
[¶ 7] We are persuaded to adhere to our original interpretation by the contrast between the words “actual loss” in sections 212(2)(B), (C), (D) and 212(3), and the words “permanent and complete paralysis” in section 212(2)(E) or the words “permanent and total loss of industrial use” in section 212(2)(G). Moreover, the benefits for the “actual loss” of a hand, arm, foot, and leg in section 212(3) are further refined by reference to the point of amputation. We find no reason to interpret “actual loss” as meaning anything less than amputation. Although we need not resort to the legislative history of section 212, we find nothing therein inconsistent with our interpretation.
The entry is:
1. Although Gibbs had returned to his regular duties, no question has been raised whether the second paragraph of section 212(1) renders him ineligible for specific loss benefits, and we express no opinion thereon.