1. MASTER AND SERVANT — Workmen's Compensation — Amputation of Part of Foot — Degree of Impairment — Claimant's Testimony Competent. — In a proceeding under the Workmen's Compensation Act for compensation for an accidental injury to claimant's foot which required the amputation of the foot back of the toes, testimony of the claimant that, because of such amputation, there had been a seventy-five per cent impairment of his foot was competent, after he had described his injuries, the part of the foot that remained after the amputation and the use he had of it, as he was not stating an opinion as to the degree of impairment, but stating a fact based on his own experience. p. 690.
2. MASTER AND SERVANT — Workmen's Compensation — Impairment of Foot by Amputation of Part — Testimony Competent. — In a proceeding under the Workmen's Compensation Act for compensation for permanent impairment of the right foot, resulting from an amputation of a part of the foot, testimony of claimant elicited by a question as to the impairment "of his foot" was competent although the statute (cl. [a] and [c] § 31 Workmen's Compensation Act, § 9476 Burns 1926), refers to compensation for amputation of a foot "below the knee," where it is apparent that all the parties understood that the question called for an answer as to the degree of loss of the use of the foot caused by the amputation as the same had been proved by the evidence, which was below the knee. p. 691.
3. MASTER AND SERVANT — Workmen's Compensation — Permanent Impairment — Award Sustained by Sufficient Evidence. — In a proceeding under the Workmen's Compensation Act to determine the extent of impairment of an employee's foot by an amputation of the foot back of the toes, made necessary by an accidental injury in the course of his employment, the award was sustained by sufficient evidence where the employee testified that the use of the foot was impaired seventy-five per cent. p. 691.
REMY, J.
On March 22, 1928, appellee, while in the employment of appellant, received an injury to his right foot, and was awarded compensation on the basis of total temporary disability. On March 5, 1929, a review on account of alleged change in conditions resulted in a finding that appellee had sustained a seventy-five per cent permanent impairment of the right foot below the knee, and an award was made accordingly, that is, for 112 1/2 weeks.
At the hearing, the only question in controversy was as to the degree of permanent partial impairment of appellee's injured member; and, on appeal, the sufficiency of the evidence to sustain the award is the one question presented.
The physician who treated the injury and examined appellee with a view of determining the degree of impairment, testified that all of the toes and a part of the foot were amputated, the amputation being back of the ball of the great toe, and that, in his opinion, the degree of permanent partial impairment "with respect to the foot below the knee" is from thirty-three and one-third per cent to thirty-five per cent. Appellee, as a witness in his own behalf, appeared before the Industrial Board without an attorney, described his injuries and explained the use he had of his foot, following which, in response to a question asked by a member of the board, he stated that the degree of impairment of "the foot" was seventy-five per cent.
It is argued by appellant that there is no evidence to sustain the award. Two reasons are advanced, the first being that the testimony of appellee as to the degree of impairment was 1. but the opinion of a layman, and, therefore, cannot be considered. We do not so understand the law. Appellee was not testifying as an expert; he was not expressing, as an opinion, the degree of impairment; he stated as a fact, based upon his own experience, that the impairment of the foot was seventy-five per cent. The evidence was competent and material; its weight was for the Industrial Board.
The second reason given by appellant, in support of its contention that there is no evidence to sustain the award, is that when appellee was testifying as a witness in his 2, 3. own behalf, the question was asked as to the impairment of his foot, and not of his "foot below the knee," the term which is used in the section of the act fixing the compensation to be paid for loss of a foot by amputation. See clauses (a) and (c) § 31, Workmen's Compensation Act (Acts 1919 p. 158, § 9476 Burns 1926). There is no merit in the contention. To be sure, the clause of the statute referred to fixes compensation to be paid for loss by amputation of the foot below the knee. The statute has reference to amputation of the foot by a separation below the knee. Amputation of a part of a foot at a point back of the great toe, as established by the evidence, was necessarily below the knee. Appellant was represented at the hearing by very able counsel, who made no objection to the form of the question which was asked by a member of the board. It is apparent from the record that appellee, the members of the board and appellant's counsel all understood, at the time, that the question propounded to appellee called for an answer as to the degree of loss of the use of the foot caused by the amputation as the same had been proved by the evidence.
The award is sustained by sufficient evidence.
Affirmed.