Citations
- 466 S.W.2d 798
Full opinion text
BARRON, Justice.
This is a workmen’s compensation case.
On March 13, 1969, appellant Herrin’s right hand was crushed between two pipes while working for Production Systems. International, Inc., and as a consequence appellant sustained injuries which required surgical amputation of his middle finger and first metacarpal joint as well as additional injuries to his right hand. Appel-lee, The Standard Fire Insurance Company, the workmen’s compensation insurance carrier, paid appellant forty (40) weeks of compensation at $35.00 per week, and as claimed by appellant, this payment was solely for 40 weeks of compensation for two distinct injuries, the amputation of his finger and metacarpal bone, the maximum period and amount specified for such loss by the Workmen’s Compensation Act. See Art. 8306, Sec. 12, Vernon’s Ann.Tex. St. Appellee paid, in addition to the above, all medical and hospital expenses incurred by appellant.
Subsequent to the accident but prior to the final award of the Industrial Accident Board, appellee had paid to appellant the total sum of $1,400.00 in compensation benefits. On May 27, 1970, the Industrial Accident Board entered and rendered its final award. The Board found the date of injury to be March 13, 1969 and found that the employee’s average weekly wage before the injury was in excess of $58.33, and that the compensation rate was $35.00 per week. The Board ordered the insurance carrier to pay appellant $35.00 per week for 12 consecutive weeks for total disability beginning March 14, 1969, and further ordered the carrier to pay appellant following the above 12 weeks the sum of $14.00 per week for 138 consecutive weeks, representing 40% permanent loss of the use of his hand. Compensation ordered paid under the award which had accrued from the date of appellant’s disability, March 13, 1969, until the date of the award, May 27, 1970, was ordered paid in a lump sum, less payments already made. The total recovery ordered by the Board was $2,352.00.
Neither appellant nor appellee appealed the award of the Industrial Accident Board, and the award became final on June 17, 1970. When appellee failed to pay the award as computed by appellant, which ap-pellee contends is excessive, appellant filed suit on July 1, 1970 to mature and collect the award of the Board. On July 7, 1970 appellant tendered its draft in the sum of $953.00 (a one dollar mistake in favor of appellant as computed by appellee) in full and final payment of the final award of the Board. The tender was refused.
The facts of this case were stipulated by the parties and each party moved for summary judgment. After a hearing, the trial court rendered judgment in favor of appel-lee, The Standard Fire Insurance Company, and Johnnie Lee Herrin has duly perfected his appeal as appellant.
Appellant contends on appeal that the trial court erred in refusing the relief sought by appellant in that appellant is entitled to receive compensation of $14.00 per week for 138 weeks (based on 40% permanent loss of use of the right hand) in addition to that compensation of $1,400.00 which he had received allegedly for his amputated finger and metacarpal bone; and that appellee has, in allegedly failing to comply with the Board’s award, subjected itself to penalties and' attorney’s fees provided by statute. See Art. 8307, Sec. 5a, V.A.T.S.
Appellant contends that he has been paid in full for the amputated finger and metacarpal bone, but claims that in addition to the above, according to the Board’s order, he is entitled to the amount of permanent partial disability appellant suffered to his hand by virtue of the injuries he sustained. In other words, it is appellant’s contention that he is entitled to $1,932.00, plus penalty and attorney’s fees, instead of the tendered $952.00 by appellee.
Article 8306, Sec. 12, V.A.T.S., provides that recovery shall be allowed for the loss of a hand at sixty per cent (60%) of the average weekly wage during one hundred and fifty (150) weeks as a maximum. Loss of a second finger and the metacarpal bone are also provided for at 40 weeks, as computed by appellant, “subject to the limitation that in no case shall the amount received for the loss or injury to any one (1) hand be more than for the loss of the hand.” The above statute also provides:
“Where the employee sustains concurrent injuries resulting in concurrent inca-pacities,