Caesar v. Piedmont Publishing Co. , 46 N.C. App. 619 ( 1980 )

MARTIN (Robert M.), Judge.

The sole question presented for review is whether the Commission erred in failing to find that the plaintiff was entitled to 25% permanent partial disability of the left thumb under Rule XV(1) of the Rules of the Industrial Commission.

The North Carolina Industrial Commission has the authority to make rules, not inconsistent with the Workers’ Compensation Act, for carrying out the provisions of that Act, pursuant to G.S. 97-80(a). Accordingly, the Commission formulated Rule XV(1) which states: “Amputation of any portion of the bone of a distal phalange of a finger or toe at or distal to the visible base of the nail will be considered as equivalent to the loss of one-fourth (VU of such finger or toe.” Defendant argues that when compensation is awarded under G.S. 97-31(1) for the loss of a thumb, the rate of compensation is limited to 25% under Rule XV(1) for the amputation of the above portion of the thumb. We do not agree.

In awarding compensation for permanent partial disability at the rate of 68 73 percent, the Commission considered the functional loss of the use of the thumb as a whole. In so doing, the Commission did not interpret Rule XV as an exclusive limitation on the rate of compenation for an injury involving the amputation of a portion of a finger. Rather the Commission construed Rule XV in conjunction with G.S. 97-31(19) which provides: “The compensation for partial loss of or for partial loss of use of a member . . . shall be such proportion of the periods of payment above provided for total loss as such partial loss bears to total loss. . .”. Therefore, when plaintiff can prove a case under either partial loss of a member subject to Rule XV or partial loss of the use of that member, he is entitled to compensation under either heading. See 2 A. Larson, The Law of Workmen’s Compensation § 58.20 (1976). This interpretation is consistent with the plain and explicit language of G.S. 97-31(19) which provides for an award in the alternative for either loss of or loss of use of a member.

The injured employee is entitled to an award which encompasses all injuries received in the accident. Perry v. Furniture Co., 296 N.C. 88, 249 S.E. 2d 397 (1978). Had the initial reimplantation of plaintiffs thumb been successful, plaintiff would nevertheless be entitled to compensation for any loss of use of the thumb which may have resulted from the injury. Because a portion of plaintiff’s thumb was later amputated, we do not think plaintiff’s recovery is confined to the less favorable remedy for amputation when he can prove a greater loss of use of the member as a whole. The Commission properly awarded plaintiff compensation for the functional loss of his finger under G.S. 97-31(1) and 97-31(19).

The order of the Commission is

Affirmed.

Judges WEBB and HILL concur.