GIBBS v. FRASER PAPER
11/26/1997
[ 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
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.
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 on
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