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Gibbs v. Fraser Paper
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 225
Docket:	WCB-96-535
Submitted on Briefs:	October 23, 1997
Decided:	November 26, 1997	

Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and
SAUFLEY, JJ.


KENNETH GIBBS v. FRASER PAPER, LTD. and SEDGWICK JAMES

ROBERTS, J.
  
	[¶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 Gibbs's loss of use of his finger.  It
would appear, however, to be something short of total loss of use.  The Board
denied Gibbs'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.  Gibbs'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 1/2 of
that thumb or finger, and compensation is 1/2 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 1/2 of that toe, and compensation is 1/2
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:  
				Decision affirmed. 
                  
Attorneys for employee: James P. Dunleavey, Sr., Esq. James M. Dunleavey, Esq. Dunleavey Law Offices, P.A. P O Box 33 Presque Isle, ME 04769 Attorney for employer: Michael J. Dostie, Esq. Rella, Dostie & Tucker, P.A. P O Box 696 Bangor, ME 04402-0696
FOOTNOTES******************************** {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.