I was just involved in a loss of use case that required me to brush up on my knowledge of the subject. In the interest of not re-inventing the wheel I’m sharing what I learned as this week’s blog post.
Short version- In order to qualify for a loss of use, the amputation must be “near the joint”. What constitutes “near the joint”, you ask? Well, in the end, that’s up to the Industrial Commission, but generally a loss of less than ½ of the phalange (one of the three portions that makes up the finger) would not qualify.
Long version- In State ex rel. Green Tokai Co. v. Indus. Comm. 2007-Ohio-4688, the 10th District considered a case in which the injured worker lost part of the distal (farthest from the hand) phalange of three fingers on his right hand. The Court held that loss of the distal phalange means loss “near the joint” and not a partial loss of the phalange. The Supreme Court leaves the determination as to what would constitute “near the joint” to the Industrial Commission. See Green Tokai at 10. However, the Court stated that “a severance of one-half of the distal phalange reasonably could not be considered ‘near the joint’.” Id. at 11. A point “clearly beyond the halfway point” on the phalange could be considered near the joint. Id. at 12.
In my case, the injured worker was involved in an unfortunate accident that resulted in the amputation of the tip of the distal phalanx of his index finger. He filed a motion for a loss of use of 1/3 of the finger. We contested the motion, because he lost only the tip of the finger, with just part of the nail bed. The Industrial Commission agreed, and denied the request, based upon Green Tokai and State ex rel. Kabealo v. Indus. Comm. (Mar. 8, 1990), Franklin App. No. 88AP-33.
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