7
report and diagnosis of Dr. George. In any event, the type of
limitations described by petitioner do not rise to the level of a
"permanent loss or loss of use of a member or function of the
body" under section 105(c).
In West v. Commissioner, T.C. Memo. 1992-617, the taxpayer
fell off a scaffold and suffered a compression fracture of the
thoracic spine which aggravated pre-existing injuries and
resulted in two spine infusions, disc disease, multiple problems
with his neck and back, and arthritis. The taxpayer was a
pipefitter and, after the fall, was unable to return to that type
of work. We held that the taxpayer's partial loss of the back
function did not constitute the loss of a member or a bodily
function within the terms of section 105(c). We based our
holding on the facts that the taxpayer was able to work in a less
strenuous setting and the benefits received were based on the
taxpayer's years of service, not the type or severity of his
injury.
Likewise, in Hines v. Commissioner, 72 T.C. 715 (1979), we
considered application of section 105(c) to a pilot who suffered
a heart attack and lost the use of a portion of his heart. We
stated that "We do not think that the loss of the use of a
portion of the muscle tissue of the heart constitutes the loss of
a member or of a bodily function." Id. at 719. In response to
the taxpayer's argument that payment for an injury which robs an
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