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Under the English act. Subject to certain maximum and minimum payments, the average weekly earnings of the employee furnish the basis of compensation, under the English act, in case of death, where the period of the workman's employment has been less than the three years previous to the accident, and also in case of total or partial incapacity.32 In case of incapacity, the average weekly earnings during the preceding twelve months are taken if the workman has been so long employed,33 but if he has not, then for any less period during which he has been in the employment of the same employer. By express provision of the statute, the "average weekly earnings" are to be computed in such manner as is best calculated to give the rate

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28. Simmons V.

per week at which the workman was being remunerated,35 and where, by reason of the shortness of the time during which the workman has been in the employment of his employer, or the casual nature36 or the terms of the employment, it is impracticable at the date of the accident to compute the rate of remuneration, regard may be had to the average weekly amount which, during the twelve months previous to the accident, was being earned by a person in the same grade employed at the same work by the same employer,37 or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district.38 Employment "by the same employer' is to be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident,3 uninterrupted by absence from work due to illness or any other unavoidable cause. Where the employer has been accustomed to pay the workman a sum to cover any special expenses entailed on him by the nature of his employment, the sum so paid shall not be reckoned as a part of the earnings." In computing average weekly earnings, slack weeks must be included when a necessary incident of the employment, as must a period of idleness due to general

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Heath Laundry | [1912] 3 K. B. 360, 5 BWCC 614 (no Co., [1910] 1 K. B. 543, 3 BWCC 200 change of grade in cases of a carter (where earnings as laundress and as acting as a casual teamster); Perry piano teacher were held not to be v. Wright, [1908] 1 K. B. 441, 1 under concurrent "contracts of serv- BWCC 351; Babcock v. Young, 4 ice"). BWCC 367, [1911] S. C. 406 (a boiler maker injured while working as a laborer is in the grade of a laborer); Cain v. Leyland, 1 BWCC 368.

29. Kilberg v. Vitch, 171 App. Div. 89, 156 NYS 971.

[a] Grade of employee is question of fact.-Williams v. Wynnstay Collieries, 3 BWCC 473.

38.

Snell v. Bristol, [1914] 2 K. B. 291, 7 BWCC 236.

39. Dalgleish v. Edinburgh Roperie, etc., Co., 6 BWCC 867; Hunter v. Baird, 7 F. (Ct. Sess.) 304; Winbush v. Elmbank Roperie, etc., Co., 50 Sc. L. Rep. 917.

[a] Illustration.-In making an award to the dependent mother and sister of a deceased employee, a boy sixteen years old, the consideration by the workmen's compensation commission of the probable increase of the deceased's wages was proper. Kilberg v. Vitch, 171 App. Div. 89, 91, 156 NYS 971 (holding also that a provision of the act that "all questions of dependency shall be determined as of the time of the accident" does not [a] Change of grade.-"Some emforbid such consideration of a prob- ployments have in them an element able wage increase, since such sen- of the casual, and some of the tence relates only to the ascertain-seasonal as well as the casual, in the ment of dependents). Review in such case under English act see infra § 151. 30.

Perry v. Wright, [1908] 1 K. B 441, 1 BWCC 351. 31. Workmen's Compensation Act (1906) Schedule I (1) (a) (i). 32.

Workmen's Compensation Act (1906) Schedule I (1) (b). 33.

Workmen's Compensation Act (1906) Schedule I (1) (b). 34.

Workmen's Compensation Act (1906) Schedule I (1) (b).

35. Snell v. Bristol, [1914] 2 K. B. 291, 7 BWCC 236 (holding that, in the case of a workman working in a certain grade of employment, the arbitrator must have regard to the personal ability of the workman to earn either more or less than the average wage, and is not confined solely to a consideration of the earnings of persons in the same grade, but must consider any evidence called showing that the workman is in fact above the average); Godden v. Cowlin, [1913] 1 K. B. 590, 6 BWCC 154; Perry v. Wright, [1908] 1 K. B. 441, 1 BWCC 351; Dalgleish v. Edinburgh Roperie, etc., Co., 6 BWCC 867; Turner v. Port of London Authority, 6 BWCC 23, 29 T. L. R. 204; Dobson v. British Oil, etc., Mills, 5 BWCC 405; Kelly v. York St. Flax Spinning Co., 2 BWCC 493; Carter v. Lang, 1 BWCC 379.

36. Barnett v. Port of London Authority, [1913] 2 K. B. 115, 6 BWCC 105.

37. Jury v. Steamship Atalanta, [1912] 3 K. B. 366, 5 BWCC 681 (holding that a mere temporary position in the absence of another did not fix an employee's grade); Edge v. Gorton,

ordinary sense, such as are illustrated in Perry v. Wright, and the other cases reported at [1908] 1 K. B. 441, 1 BWCC 351; other employments are of a regular nature, where the employee is almost as much a part of the machinery of the establishment as the machine which he or she operates. In the former case a change of work by no means involves a change of grade of employment; in the latter case prima facie it much more readily does so. In the former case a rise or fall of wages, whether or not accompanied by a change of work, is not criterion of a change of grade of employment; in the latter a change of wages accompanied by a change of work goes very far to import such change of grade. There may be change of department; there may be a change of the class of machine in the same department. A change of wages will not of itself import a change of grade, but if it accompanies a change of department, or a change of the class of machine, or even of the species within the same genus of machine, and is not temporary but reasonably permanent, I think that there is in the sense of the schedule a change of grade." Dalgleish v. Edinburgh Roperie, etc., Co., 6 BWCC 867, 871.

a

40. Greenwood v. Nall, [1915] 3 K. B. 97, 8 BWCC 503; Perry v. Wright, [1908] 1 K. B. 441, 1 BWCC 351; Gili v. Fortescue, 6 BWCC 577.

[a] Under the act of 1897, (1) only earnings in the service of the employer in whose service the workman was injured could be taken into consideration (Lysons V. Knowles, [1901] A. C. 79, 3 WCC 1; Hathaway

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v. Argus Printing Co., [1901] 1 K. B. 96, 3 WCC 177; Case v. Colonial Wharves, 8 WCC 114; Leonard v. Baird, 38 Sc. L. Rep. 649), (2) and the average wages of workmen in the same class of employment could not be used as a basis (Bartlett v. Tutton, [1902] 1 K. B. 72, 4 WCC 133). (3) In ordinary cases there must have been a continuous employment for twelve months in order to assess the average weekly earnings during the twelve months as required by the act. Giles v. Belford, [1903] 1 K. B. 843, 5 WCC 136; Appleby v. Horseley Co., [1899] 2 Q. B. 521, 1 WCC 103; Jones v. Ocean Coal Co., [1899] 2 Q. B. 124, 1 WCC 94; Price v. Marsden, [1899] 1 Q. B. 493, 1 WCC 108; Hewlett V. Hepburn, 2 WCC 123, 16 T. L. R. 56; Keast V. Barrow, Hematite Steel Co., 1 WCC 99, 15 T. L. R. 141. (4) The requirement, however, that the average weekly earnings be taken as a basis of compensation did not exclude cases where the employee had worked but a week or less under circumstances warranting the presumption that the employment was to continue. Lysons v. Knowles, [1901] A. C. 79, 3 WCC 1; Ayres v. Buckeridge, [1902] 1 K. B. 57, 4 WCC 120; Brown v. Cunningham, 6 F. (Ct. Sess.) 997; Campbell v. Fife Coal Co., 40 Sc. L. Rep. 143; Gibb v. Dunlop, 39 Sc. L. Rep. 750; McHugh v. Barclay, 39 Sc. L. Rep. 690; Grewar v. Caledonian R. Lochgelly Iron, etc., Co., 39 Sc. L. Co., 39 Sc. L. Rep. 687; Fleming v. Rep. 684; Niddrie, etc., Coal Co. v. Peacock, 39 Sc. L. Rep. 317; Nelson v. Kerr, 38 Sc. L. Rep. 645; Cadzow Coal Co. v. Gaffney, 38 Sc. L. Rep. 40; Russell v. McCluskey, 37 Sc. L. Rep. 931; Watters v. Glover, 4 WCC 138, 18 T. L. R. 60; Greaves v. Mulliners, 3 WCC 189; Williams v. Poulson, 2 WCC 126, 16 T. L. R. 42; Jones v. Walker, 1 WCC 142. Contra Peers v. Astley, etc., Collieries Co., 3 WCC 185.

41. Shipp v. Frodingham Iron, etc., Co., [1913] 1 K. B. 577, 6 BWCC 1 (holding that where miners were employed by the gang, being paid in a lump sum in accordance with the ore produced less a charge for blasting powder, the wages of a member of the gang were his share of the net earnings of the gang); McKee v. Stein, 3 BWCC 544, 47 Sc. L. Rep. 39 (deduction of sums paid by miner for explosives should not be made).

42. White v. Wiseman, [1912] 3 K. B. 352, 5 BWCC 654, AnnCas1913D

business conditions,13 or to the nature of the employment,14 or to time generally recognized as holidays therein.45 Idle time due to illness46 or a voluntary holiday should be excluded, as should a period of idleness due to a strike in a related employment. It has been held that tips received by the employee are to be considered as a part of his earnings, so likewise the value to the employee of clothing furnished by the employer,50 or the amount of deductions for necessary equipment supplied.51

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ability to perform work secured, or inability to secure work to do.53 Hence the disinclination of employers to take crippled, disfigured, or otherwise physically defective persons into their employment may be considered.54 However, a reduction in earnings, due not to the injury but to general business conditions, cannot be taken into account.55 A trivial impairment of earnings cannot be considered.56 Where the statute bases compensation on the impairment of the employee's earning capacity in the employment in which he was working at the time of the accident, the earning capacity remaining to the employee in other callings cannot be considered.57 This rule does not apply where the compensation is hand I am also of opinion that there, workman shall get employment

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[§ 81] 3. Impairment of Earning Capacity.5 Where incapacity to work is made the basis for compensation it is equivalent to loss of earning power, and so construed covers such loss whether from in

1021; White v. Wiseman, 5 BWCC,
654, 107 L. T. Rep. N. S. 277..
43.

Griffiths v. Gilbertson, 8 BWCC 548, 113 L. T. Rep. N. S. 628.

are cases in which the onus of shew-
ing that suitable work can in fact be
obtained does fall upon the employer
who claims that the incapacity of the
workman is only partial. If the acci-
dent has left the workman so injured
that he is incapable of becoming an
ordinary workman of average capac-
labour market-if in other words the
capacities for work left to him fit
him only for special uses and do not,

44. Anslow v. Cannock Chase Colliery Co., [1909] A. C. 435, 2 BWCC 365 [aff [1909] 1 K. B. 352, 2 BWCC 361] Carter v. Lang, 1 BWCC 379; Bailey v. Kenworthy, 1 BWCC 371. 45. Anslow v. Cannock Chase Col-ity in any well-known branch of the liery Co., [1909] A. C. 435, 2 BWCC 365 [aff [1909] 1 K. B. 352, 2 BWCC 361]. See to same effect under act of 1897 Faircloth v. Waring, 8 WCC 99. 46. Anslow v. Cannock Chase Colliery Co., [1909] A. C. 435, 2 BWCC 365 [aff [1909] 1 K. B. 352, 2 BWCC 361].

47. Anslow v. Cannock Chase Colliery Co., [1909] A. C. 435, 2 BWCC 365 [aff [1909] 1 K. B. 352, 2 BWCC 361].

48.

Griffiths v. Gilbertson, 8 BW CC 548, 113 L. T. Rep. N. S. 628. 49. Penn v. Spiers, [1908] 1 K. B. 766, 1 BWCC 401; Hains v. Corbet, 5 BWCC 372; Knott v. Jacobs, 4 BWCC 55. 50. Great Northern R. Co. v. Dawson, [1905] 1 K. B. 331, 7 WCC 114. 51. Abram Coal Co. v. Southern, [1903] A. C. 306, 5 WCC 125; Hough

ton v. Sutton Heath, etc., Co., [1901]

1 K. B. 93, 3 WCC 173.

52. Necessity to constitute ability see infra § 85.

dis

53. Gorrell v. Battelle, 93 Kan. 370, 144 P 244; In re Septimo, 219 Mass. 430, 107 NE 63; In re Duprey, 219 Mass. 189, 106 NE 686; In re Sullivan, 218 Mass. 141, 105 NE 463, LRA1916A 378 and note; Jackson v. Hunslet Engine Co., 8 BWCC 584, 113 L.

T. Rep. N. S. 630; Brown V. Thornycroft, 5 BWCC 386; Guest v. Winsper, 4 BWCC 289; Thomas v. Fairbairn, 4 BWCC 195; Dobby V. Pease, 2 BWCC 370; Clark v. Gas Light, etc., Co., 7 WCC 119, 21 T. L. R. 184.

But see Boag v. Lochwood Collieries, [1910] S. C. 51, 3 BWCC 549 (holding inability to find work no ground for increasing compensation).

"If, as in this case, the injured employee by reason of his injury is unable in spite of diligent efforts to obtain employment, it would be an abuse of language to say that he was still able to earn money, that he still had a capacity for work, even though his physical powers might be such as to enable him to do some kinds of work if practically the labor market were not thus closed to him." Sullivan, 218 Mass. 141, 143, 105 NE 463, LRA1916A 378.

In re

[a] English authorities as precedents. "The expression 'incapacity for work' was taken from the English workmen's compensation act of 1906. Accordingly decisions of the English courts fixing the meaning there to be given to these words are of weight." In re Sullivan, 218 Mass. 141, 142, 105 NE 463, LRA1916A 378. [b] Limitations of English rule. "There can therefore be no general principle, i. e., a principle true in all cases, that in the case of partial incapacity the employer is required not only to shew what work the workman can do but also to shew that he can get such work. But on the other

SO

the

where incapacity has for the time ceased. An example will make this clear. Suppose that in the business of a mechanical fitter there is a class of work requiring a special fineness of touch or keenness of sight so that it can only be done by persons specially gifted in these respects and that it accordingly commands higher wages. Suppose also that an accident happens to one of these firstclass fitters which injures his sight to speak, make his powers of or touch to such an extent that he labour a merchantable article in now has that sense only in an aversome of the well-known lines of the age degree of perfection, and thus is labour market, I think it is incum- qualified only for the work of an bent on the employer to shew that ordinary fitter, but which does him such special employment can in fact no other injury. His position after be obtained by him" (per Moulton, accident is that he has lost L. J.). Cardiff Corp. v. Hall, [1911] thereby the difference of earning 1 K. B. 1009, 1020, 4 BWCC 159. power of a first-class fitter as com[c] Inability to reach work.pared with an ordinary fitter. But Lameness of employee, preventing he has lost no more. I can see no to walking former place reason why this chance of obtaining work, may tend to support a finding employment or his power of earning of total disability. Beddard v. Stan- wages should be treated for any purton Iron Works Co., 6 BWCC 627. pose as different from that of a man 54. Gorrell v. Battelle, 93 Kan. who has all his life been an average 370, 144 P 244; International Har- fitter, and, inasmuch as the employer vester Co. V. State Commn., 157 Wis. 167, 147 NW 53, labour market for one who is and has Industrial does not guarantee the state of the [1912] A. C. 496, 5 BWCC 459 [rev AnnCas1916B 330; Ball V. Hunt, previously been an average fitter, I cannot see why he should guarantee [1911] 1 K. B. 1048, 4 BWCC 225]; the state of the labour market for Jackson V. Hunslet Engine Co., 8 the workman who has now become BWCC 584, 113 L. T. Rep. N. S. 630; one" (per Moulton, L. J.). Cardiff Guest v. Winsper, 4 BWCC 289; Roy- Corp. v. Hall, [1911] 1 K. B. 1009, lance v. Canadian Pac. R. Co., 14 B. 1020, 4 BWCC 159. C. 20. But see Shinnick v. Clover Farms Co., 152 NYS 649 [aff 169 App. Div. 236, 154 NYS 423] (where disfigurement by loss of an ear was held not a disability).

his

of

55. In re Durney, 222 Mass. 461, 111 NE 166; Merry v. Black, 2 BWCC 372.

See Bevan v. Energlyn Colliery Co., 5 BWCC 169, 28 T. L. R. 27 (holding that a statute lowering the earning powers of that particular class of workmen should be taken into consideration in determining impairment of earnings).

"The statute contemplates compensation for diminished capacity to earn wages, and the injured employee, in common with others, must bear the loss resulting entirely from business depression." In re Durney, 222 Mass. 461, 462, 111 NE 166.

"Liability to unemployment is a feature of all industrial labour, and the workman was subject to it before the accident as truly as he was afterwards. He has no right to be placed in a more favourable position in this respect than if the accident had not happened. Accordingly the Courts have held that a workman is not entitled to compensation for unemployment due to the fluctuations of trade, or, to use the language of the present Master of the Rolls in Dobby v. Pease, 2 BWCC 370, 'the employer does not guarantee the state of the labour market' (per Moulton, L. J.). Cardiff Corp. v. Hall, [1911] 1 K. B. 1009, 1018, 4 BWCC 159.

[a] Illustration.-"It is impossible to hold that the employer necessarily or generally guarantees the conditions of the labour market where there is partial incapacity any more than he guarantees that the

56. Woodhouse v. Midland 'R. Co., [1914] 3 K. B. 1034, 7 BWCC 690; Stack v. Whittal, 48 Que. Super. 272.

57. Foley v. Detroit United R. Co., (Mich.) 157 NW 45; Mellen Lumber Co. v. State Industrial Commn., 154 Wis. 114, 142 NW 187, LRA1916A 374 and note, AnnCas1915B 997.

"Where a statute plainly says, as this one does, that the loss in case of partial disability shall consist of such percentage of the weekly earnings of the employee as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, we fail to see how the court would be justified in adding thereto the following limitation: 'Less such sums as the employee might be able to earn in some other calling.' This in effect is what the court would have to do if it adopted the construction for which the appellant contends. There is nothing doubtful, obscure, or ambiguous about the language used." Mellen Lumber Co. v. State Industrial Commn., 154 Wis. 114, 119, 142 NW 187, LRA1916A 374, AnnCas1915B 997.

[a] Remedy is for legislature.— "It may well be that if the legislature had in mind the concrete case with which we are dealing it would have provided for such a contingency. It is not very probable that it was intended to give an employee who lost a thumb and finger of the left hand the same compensation that he would be entitled to receive had he been so maimed that he was totally incapacitated from doing any kind of work. If this is so, then it is apparent that the legislature overlooked

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measured by the loss of ability to earn in any suit- | work,66 or his expectation of life. Disability may able employment.58

Suitable employment.

Where the statute limits the amount of compensation for partial incapacity to the difference between the earnings of the employee before the accident and the amount which he is earning or able to earn in some suitable employment after the accident," the question of what is a suitable employment is one of fact.60 The amount which the employee is able to earn in a business conducted by himself may be considered. Where, however, the man is working in his own business, his earning capacity is measured by his earning capacity in case the services rendered to himself had been rendered to someone else, and not by the profits in his business.62

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[82] B. Compensation for Disability-1. In General. Under statutes basing compensation on disability alone the only difference in the amounts of compensation for injuries of the same character is that occasioned by differences in wages earned." Compensation for disability depends on the character of the disability considered in itself, and not with reference to the character of the particular individual. No discrimination is made because of the age of the employee, or the character of his

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the contingency with which we are dealing, or it in fact has provided that the future earning capacity of the employee must be taken into account. If the former is the correct diagnosis, then the remedy rests with the legislature. It is its function to amend the act where amendment is found necessary. The fact that injustice may result in the instant case is nothing that concerns the courts unless some constitutional right of the appellant is being invaded." Mellen Lumber Co. v. State Industrial Commn., 154 Wis. 114, 118, 142 NW 187, LRA1916A 374, AnnCas1915B

997.

58.

Cammell v. Platt, 2 BWCC 368. 59. See statutory provisions. 60. Eyre v. Houghton Main Colliery Co., [1910] 1 K. B. 695, 3 BWCC 250; Housley v. Hadfields, 8 BWCC 497; Penman v. Smith's Dry Docks Co., 8 BWCC 487; Burt v. Fife Coal Co., 8 BWCC 350; Ashmore v. Lillie, 8 BWCC 89; Howards v. Wharton, 6 BWCC 614.

[a] Change of locality.-An offer of employment may be reasonable and suitable, although it entails a removal of the employee to another city. Wallis v. McNeice, 6 BWCC 445 (removal of carter from Belfast to Dublin).

[b] Employments held suitable.(1) Former employment held suitable for steel fettler although he had lost an eye therein. Housley v. Hadfields, 8 BWCC 497. (2) Old occupation as miner at the working face, although one eye had been lost. Law v. Baird, 7 BWCC 846, [1914] S. C. 423. (3) Work repairing wagons, involving cutting out bolts with hammer and chisel, where employee had lost an eye. Elliott v. Curry, 5 BWCC 584.

exist without a present diminution of earning power.68 Where the employee is not incapacitated at the date of the injury, but becomes so at a later date, he is entitled to recover compensation from such date until the expiration of the statutory limit of the period of compensation." The right to an order for payment of compensation for disability ceases with the death of the employee.70

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Causal connection. Incapacity in order to be a basis of compensation must be the result of the injury, although the injury need not be the exclusive cause." Hence the right to compensation is not removed by the fact that without the accident the workman would be incapacitated by some supervening infirmity.73 The same principle has been applied to prevent the termination of compensation by the fact that the employee had been imprisoned for crime." Where there has been an intervening accident, the question which must be determined is the extent to which incapacity is due to the original injury.75 Incapacity may be the result of an injury which does not prevent the employee from being able to work but prevents him from getting work to do.76. Compensation may be continued, although incapacity is the result of a mental con

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diminished or terminated where the employee was engaged in farming and in fact earning in his own service).

62. Paterson v. Moore, 3 BWCC 541, [1910] S. C. 29.

63. Bateman Mfg. Co. v. Smith, 85 N. J. L. 409, 89 A 979.

64. Bateman Mfg. Co. v. Smith, 85 N. J. L. 409, 89 A 979; Jamieson v. Fife Coal Co., 5 F. (Ct. Sess.) 958.

[a] Reason for rule.-"Were it otherwise, we should have to determine what kind of a man was meant by the legislature to receive the standard statutory compensationwhether a young and vigorous man or an old and decrepit man or some one between the two extremes; and we should then have to vary the award in each individual case and perhaps never find the typical normal standard." Bateman Mfg. Co. V. Smith, 85 N. J. L. 409, 411, 89 A 979.

[b] Probable natural incapacity."The finding by the board that the employee is a man of failing physical powers and that probably he will be incapacitated for work in a few years, as a result of such physical weakness, independently of his injury, does not bar him from compensation under the act if his incapacity to work is the result of his injuries." In re Duprey, 219 Mass. 189, 193, 106 NE 686.

65. Bateman Mfg. Co. v. Smith, 85 N. J. L. 409, 89 A 979.

66. Bateman Mfg. Co. v. Smith, 85 N. J. L. 409, 89 A 979.

67. Bateman Mfg. Co. v. Smith, 85 N. J. L. 409, 89 A 979.

68. Burbage v. Lee, 87 N. J. L. 36, 93 A 859; Freeland v. Macfarlane, 37 Sc. L. Rep. 599; Peterson v. Garth Co., 24 Que. K. B. 165; Lariviere v. Girouard, 24 Que. K. B. 154, 24 Dom LR 532.

[c] Employments held unsuitable. -(1) Old employment of loco driver and shunter in a mine where fingers [a] "The term 'disability' is not were stiffened and useless. Dinning- restricted to such disability as imton Mail Coal Co. v. Bruins, 5 BWCC pairs present earning power at the 367. (2) Old employment of tool-particular occupation, but embraces smith who has lost an eye may be unsuitable because of inability to stand noise. Penman v. Smith's Dry Docks Co., 8 BWCC 487. (3) Stoking furnace where one eye had been lost and other impaired. Thompson Newton, 7 BWCC 703. (4) Old employment to miner who had practically lost sight of one eye. Eyre v. Houghton Main Colliery Co., [1910] 1 K. B. 695, 3 BWCC 250.

V.

61. Norman v. Walder, [1904] 2 K. B. 27, 6 WCC 124 (under act of 1897); Duberley v. Mace, 6 BWCC 82 (holding that compensation might be

any loss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life." Burbage v. Lee, 87 N. J. L. 36, 38, 93 A 859.

Necessity of diminution of earnings to support award see infra § 85.

69. Carlson v. Avery Co., 196 Ill. A. 262.

70. In re Burns, 218 Mass. 8, 13, 105 NE 601, AnnCas1916A 787 (where the court said: "The question whether, if during his lifetime and upon his own petition this specific compensation had been ordered for a

stated number of weeks and his death had occurred before the expiration of that period, the right thus adjudicated would cease at his death, or whether the payments must be continued until the end of the appointed time for the benefit of his dependents, is not raised here, and of course has not been passed upon").

71. Noden v. Galloways, [1912] 1 K. B. 46, 5 BWCC 7; Booth v. Carter, 8 BWCC 106; Clark v. Taylor, 7 BWCC 871, 84 L. J. P. C. 14 [rev 7 BWCC 856, [1914] S. C. 432]; Wheeler v. Dawson, 5 BWCC 645; Westcott, etc., Lines v. Price, 5 BWCC 430; Shier V. Highbridge Urban Dist. Council, 1 BWCC 347.

[a] Illustrations.-(1) Incapacity due not to an accident but to a mental condition from worry and brooding over an accident cannot be the basis of an award. Holt v. Yates, 3 BWCC 75. (2) Inability due to nervousness which might be overcome by reasonable effort will not support an award. Turner v. Brooks, 3 BWCC 22. (3) Predisposition to nystagmus must be due to a previous attack and not to a natural predisposition. Jones v. Brynmally Colliery Co., 5 BWCC 375, 106 L. T. Rep. N. Š. 524.

[b] Findings not disturbed.-(1) That incapacity was not due to accident. Taylor v. Clark, 7 BWCC 871 [rev 7 BWCC 856]; Legge v. Nixon's Nav. Co., 7 BWCC 521; Paton v. Dixon, 6 BWCC 882; Huggins v. Guest, 6 BWCC 80; Upper Forest, etc., Steel, etc., Co. v. Grey, 3 BWCC 424. (2) That incapacity was not due to unskillful treatment. Harrison v. Ford, 8 BWCC 429.

Remote and proximate consequences of injury see supra §§ 60-62.

72. Harwood V. Wyken Colliery Co., [1913] 2 K. B. 158, 6 BWCC 225; Clark v. Taylor, 7 BWCC 871, 84 L. J. P. C. 14 [rev 7 BWCC 856, [1914] S. C. 432].

73.

Harwood V. Wyken Colliery Co., [1913] 2 K. B. 158, 6 BWCC 225; Smith v. Hughes, 8 WCC 115.

74. McNally v. Furness, [1913] 3 K. B. 605, 6 BWCC 664. Contra Clayton v. Dobbs, 2 BWCC 488.

75. Wilkinson v. Frodingham Iron, etc., Co., 6 BWCC 200.

4

76. Ball v. Hunt, [1912] A. C. 496, 5 BWCC 459 [rev [1911] 1 K. B. 1048. BWCC 225] (where the injury necessitated the removal of a previously sightless eye, rendering existing partial blindness apparent and producing disfigurement preventing the obtaining of employment).

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dition" or is due to the nervous effects produced by the accident,78 as in the case of neurasthenia inducing an honest belief on the part of the workman that he is unable to work; but the fear of a second injury causing an employee to refuse to resume work cannot be regarded as incapacity.80 Compensation will be terminated where incapacity is due to want of proper exercise and not to accident.81 But an employee may be entitled to an award, although he might have put himself in a condition to resume his old employment by engaging temporarily in light work, where he has been unable to find such work.8: Although the employee has recovered from an industrial disease, he may be incapacitated from resuming his employment by the likelihood of its recurrence.83 Where the employer has shown the employee to be fully recovered from a disease compensable under the act, the burden is on the employee to establish the likelihood of its

recurrence."

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Previously impaired condition.85 Incapacity may be regarded as the result of an injury to a man physically impaired, although the injury would not have incapacitated a man who was physically sound.86 Obviously, incapacity which consists of the accentuation of a previously impaired condition may be regarded as a result of the accident.s A diseased condition of the employee previous to the injury, which retards his recovery and lengthens the period of disability, will not justify a discontinuance of compensation so long as the incapacity results from the injury.88

87

porary and a permanent disability, a recovery may be had for both.89 Where such an award is made, it is error to allow for an injury as temporary, when it has healed as much as it ever will heal.90 Temporary, as distinguished from permanent, disability is a condition that exists until the injured workman is as far restored as the permanent character of the injuries will permit."1

Exercise of discretion. Where the amount of compensation is required not to exceed a certain percentage of the employee's average earnings, the arbitrator or the court should not adopt a fixed rule but should determine the amount in each case according to its circumstances."

92

94

[83] 2. Total Disability or Incapacity-a. In General. A finding of total incapacity for work may be sustained, although the claimant has been able to obtain some employment," 93 or although he has made no effort to obtain employment, or although his former employer has offered him light work.95 Permanent total disability when not defined by the statute must depend on the circumstances of each particular case.9 Where the evidence justifies a finding of total incapacity, the compensation which the employee might be entitled to for partial incapacity need not be considered.97

96

[84] b. Previous Physical Impairment. Where, by reason of a previously impaired physical condition of the employee, an accident results in his total incapacity, an award of compensation for total incapacity is permitted under some of the authorities, although a normal employee would have been only partially incapacitated. By other authorities

98

Temporary and permanent disability. Under some statutes, where an injury occasions both a tem77. Eaves v. Blaenclydach Colliery | that the court erroneously classified | St. Louis County Dist. Ct., 129 Minn. Co., [1909] 2 K. B. 73, 2 BWCC 329; the 'consolidation' of two inches of 423, 152 NW 838. Wall v. Steel, 8 BWCC 136, 112 L. T. Rep. N. S. 846.

78. Eaves v. Blaenclydach Colliery Co., [1909] 2 K. B. 73, 2 BWCC 329; Morris v. Turford, 6 BWCC 606.

79. Wall v. Steel, 8 BWCC 136, 112 L. T. Rep. N. S. 846.

80. Pimms v. Pearson, 2 BWCC 489: In re Holden, Op. Sol. Dept. Labor 268.

81. Simpson v. Byrne, 6 BWCC 455; David v. Windsor Steam Coal Co., 4 BWCC 177.

82. Bonsall V. Midland Colliery Owners Mut. Indemn. Co., 7 BWCC 613.

83. Garnant Anthracite Collieries v. Rees, 5 BWCC 694.

84. Darroll v. Glasgow Iron, etc., Co., 6 BWCC 354, [1913] S. C. 387. 85. Resulting in total incapacity see infra § 84.

86. Lee v. Baird, 1 BWCC 34. 87.

146.

Martin v. Barnett, 3 BWCC

88. Hills v. Oval Wood Dish Co., (Mich.) 158 NW 214.

89. Maziarski v. Ohl, 86 N. J. L. 692, 93 A 110; Nitram Co. v. Essex County Ct., 84 N. J. L. 243, 86 A 435. [a] Illustration.-Where the fingers of a servant were crushed and some of them amputated, and such injuries produced a temporary disability partly due to an infection preventing his going to work, damages were properly allowed both under clause "a" (P. L. [1911] § 2 par 11), concerning temporary disability, and under clause "c" providing for disability partial in character, but permanent in quality, even though the damages would exceed the maximum recoverable under clause "b" relating to total and permanent disability. Nitram Co. v. Essex County Ct., 84 N. J. L. 243, 86 A 435.

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the left lung as temporary, after it had healed as much as it would ever heal, and so extended the allowance for temporary disability much longer than the evidence warranted. The case is different from Nitram Co. v. Essex County Ct., C. Pl., 84 N. J. L. 243, 86 A 435, in which case the temporary award ran while the hand was in process of healing. Moreover, the award for a total of 450 weeks is in contravention of the statute (P. L. 1913, p. 307, par. 14a), which provides that in no case shall the total number of weekly payments be more than 400").

91. Vishney v. Empire Steel, etc., Co., 87 N. J. L. 481, 95 A 143.

[a] "An apt illustration is a case where there has been a loss of both arms. The temporary disability to be considered in such an instance is the physical state of the patient until the stumps are healed and he is able to get about; the actual disability to do effective work is the same in either case and continues for life." Vishney v. Empire Steel, etc., Co., 87 N. J. L. 481, 483, 95 A 143.

92. Webster v. Sharp, [1905] A. C. 284, 7 WCC 118 [aff [1904] 1 K. B. 218, 6 WCC 120]; Snell v. Bristol, [1914] 2 K. B. 291, 7 BWCC 236.

93. In re Septimo, 219 Mass. 430, 107 NE 63; Hanley v. Union Stockyards Co., (Nebr.) 158 NW 939.

[c] Finding of total incapacity sustained.Where claimant had lost the whole of every finger except the forefinger of the right hand and the little finger of the left hand. In re Septimo, 219 Mass. 430, 107 NE 63.

94. In re Septimo, 219 Mass. 430, 107 NE 63. Compare Bruce v. Taylor, (Mich.) 158 NW 153 (where the award was sustained, although the court was of the opinion that partial incapacity only might well have been found).

95. Barron v. Blair, 8 BWCC 501. 96. State v. Blue Earth County Dist. Ct., (Minn.) 158 NW 700.

[a] Blindness.-The loss of the entire sight of the right eye with five per cent of the normal vision, increased to about one-third of the normal vision by the use of glasses, remaining in the left eye, may be found to be a permanent total disability. State v. Blue Earth County Dist. Ct., (Minn.) 158 NW 700.

97. In re Septimo, 219 Mass. 430, 107 NE 63; Bruce v. Taylor, (Mich.) 158 NW 153.

98. In re Branconnier, 223 Mass. 273, 111 NE 792; Schwab v. Emporium Forestry Co., 153 NYS 234.

[a] Reason for rule.-"The employé, when he entered the service of the subscriber, had that degree of capacity which enabled him to do the work for which he was hired. That was his capacity. It was an impaired capacity as compared with the normal capacity of a healthy man in the

[a] Illustration.-A finding by the industrial accident board that a servant was totally incapacitated for work cannot be overthrown as a mat-possession of all his faculties. But ter of law by proof that after the accident the servant's old master reengaged him at wages only slightly lower than those obtained before the injury. In re Septimo, 219 Mass. 430, 107 NE 63.

[b] Finding of total disability not 90. Birmingham v. Lehigh, etc., sustained.-Where claimant is able Coal Co., (N. J. Sup.) 95 A 242, 243 to perform some work and is em(where the court said: "There was ployed at the time of the hearing, and injurious error in awarding for a there is no evidence to show that his total of 450 weeks. It would appear

earning ability is impaired. State v.

nevertheless, it was the employe's capacity. It enabled him to earn the wages which he received. He became an 'employé' under the act and thereby entitled to all the benefits conferred upon those coming within that description. The act affords a fixed compensation for a limited time 'while the incapacity for the work resulting from the injury is total.' establishes no other standard. It fixes no method for dividing the effect

It

a contrary view is taken,"
,99 and, in some of the stat-
utes, express provision is made to protect the em-
ployer from liability for injuries received by an
employee before entering his service.1

ment of earnings, if the employee's physical efficiency has been substantially impaired." Where compensation awarded for incapacity is limited by a percentage of the wages of the employee, it is not limited by such a percentage of the difference between the earning capacity of the employee before and after the injury. Where the statute bases the amount of compensation for partial disability on the difference in earnings of the workman before and after the accident, it is of course erroneous to base an award on the employee's prior earnings without considering his future earning capacity. In any event, it would appear that the fact that, after the injury the employee had been taken back as soon as he was able to work, and continued in his employment by his former employer, is inconclusive as against impairment of his earning capacity." Under the view that recovery cannot be had for total disability where the employee's condition is

[85] 3. Partial Disability or Incapacity-a. In General. By some courts it has been held that there cannot, at least except for particularly scheduled injuries, be compensation for even partial incapacity for work where there has been no loss of earning capacity, even though permanent physical injury has been suffered.3 Where the statute provides that the award in case of a partial incapacity shall not exceed the difference between the amount of the average weekly earnings of the employee before and after the accident, it is obvious that there can be no award of compensation where the employee's earnings have not decreased. Under other statutes it has been held that there may be compensation for disability, although there is no immediate impairof the injury and attributing a part | disability the present employer was of it to the employment and another in no degree the cause. The loss of part to some pre-existing condition, the second eye, standing by itself, and it gives no indication that the was also a partial disability, and of Legislature intended any such divi- itself did not occasion the total disasion. The total capacity of this em- bility. It required that, in addition ployé was not so great as it would to the results of the disability occashave been if he had had two sound ioned by the accident of seven years eyes. His total capacity was thus ago, there should be added the result only a part of that of the normal of the partial disability of the recent man. But that capacity, which was accident to produce the total disabilall he had, has been transformed into ity. The absence of either accident a total incapacity by reason of the would have left the claimant parinjury. That result has come to him tially incapacitated. We think it entirely through the injury." In re clear the total incapacity cannot be Branconnier, 223 Mass. 273, 111 NE entirely attributed to the last acci792, 793. dent. It follows that the compensation should be based upon partial incapacity; and it is So ordered." Weaver v. Maxwell Motor Co., 186 Mich. 588, 592, 152 NW 993,

[b] Illustrations.—(1) An employee who, before entering the service, had lost one eye, and who thereafter, from an injury in the course of his employment, lost the sight of his remaining eye, was entitled to compensation for a "total incapacity for work," as such result came to him through the injury. In re Branconnier, 223 Mass. 273, 111 NE 792. (2) A workman who had previously lost one hand, and who lost the other as the result of an accident in his employment, is entitled to compensation for "total disability" under the workmen's compensation law (Consol. L. c 67) § 15 subd 1 which provides that loss of both hands shall constitute total disability in the absence of proof to the contrary, and is not limited to the compensation for partial disability under subd 3 of that section which enumerates the loss of one hand as a partial disability, since his compensation is fixed on the basis of the wages he was earning before his injury, which necessarily were lessened because of his maimed condition, and that construction is in harmony with the legislative intent indicated by subd 6 of the same section which provides that the fact that an employee has suffered previous disability shall not preclude him from compensation for a later injury, but that in determining such compensation the average weekly wage shall be the same, which will reasonably represent his earning capacity at the time of his later injury. Schwab v. Emporium Forestry Co., 153 NYS 234. 99. Winn v. Adjustable Table Co., (Mich.) 159 NW 372; Weaver v. Maxwell Motor Co., 186 Mich. 588, 152 NW 93, LRA1916B 1276.

[a] Illustration.-The claimant had in a previous accident lost one eye. Thereafter he lost his remaining eye. It was held that the injury could not be considered as a total disability, and that he was entitled only to one half of his weekly wages for one hundred weeks. Weaver v. Maxwell Motor Co., 186 Mich. 588, 152 NW 993, LRA1916B 1276.

[b] Discussion of rule.-"In the instant case the loss of the first eye was a partial disability for which, if our workmen's compensation law had been in existence, the then employer would have been liable, and for which

LRA1916B 1276.

1. See statutory provisions; and State v. Cass County Dist. Ct., 129 Minn. 156, 151 NW 910.

[a] Application of statute.-Prior to the time the relator entered the respondent's service he had lost the sight of one eye by accidental means. After entering the respondent's service he lost by an accident happening during the course of his employment, the sight of his other eye, thus rendering him totally blind. It is held that, under § 15 of the compensation act, the last employer is liable for a permanent partial disability only, for that was the extent of the injury which the employee suffered while in his service. State v. Cass County Dist. Ct., 129 Minn. 156, 151 NW 910.

2. Cline V. Studebaker Corp., (Mich.) 155 NW 519; Hirschkorn v. Fiege Desk Co., 184 Mich. 239, 150 NW 851; Weber v. American Silk Spinning Co., (R. I.) 95 A 603; International Harvester Co. v. State Industrial Commn., 167 Wis. 167, 169, 147 NW 53, AnnCas1916B 330; Hill v. Ocean Coal Co., 3 BWCC 29. See Binns V. Kearley, 6 BWCC 608 (where evidence was held not justify award).

to

"Unless the earning capacity of the claimant in the employment in which he was engaged at the time he was injured has been impaired, there can be no recovery for permanent disability." International Harvester Co. v. State Industrial Commn.,

supra.

[a] Illustrations.-The Michigan Workmen's Compensation Act (Pub. Acts [1912] No. 10) § 10 declares that, while the capacity for work resulting from an injury is partial, the employer shall make certain payments. Section 11 restricts awards to the loss of a servant's earning capacity in the employment in which he was working at the time of the accident. It was held that an employee whose eye was permanently injured is not entitled to compensation for a permanent impairment of vision, when the injury which did not destroy the eye or the vision did not

prevent his returning to work and earning the same wages as he before received. Hirschkorn v. Fiege Desk Co., 184 Mich. 239, 150 NW 851.

3. Hirschkorn v. Fiege Desk Co., 184 Mich. 239, 150 NW 851; Weber v. American Silk Spinning Co., (R. I.) 95 A 603.

4. See statutory provisions; and Pomphrey v. Southwark Press, [1901] 1 K. B. 86, 3 WCC 194; Russell v. Holme, 2 WCC 153.

5. Hains v. Corbet, 5 BWCC 372. 6. Burbage v. Lee, 87 N. J. L. 36, 93 A 859; De Zeng Standard Co. v. Pressey, 86 N. J. L. 469, 92 A 278.

[a] Reason for rule.-"The prosecutor's principal claim is that there cannot be a statutory 'disability' when it appears that the earnings of the petitioner had not been impaired. With this we cannot agree. It may well be that for a time an injured employee might be able to earn the same wages as before the accident, but, as we read the act, the disability intended thereby is a disability due to loss of a member, or part of a member, or of a function rather than to mere loss of earning power. Even if this were not so, it does not follow that the injured employe had not sustained a distinct loss of earning power in the near or not remote future and for which the award is intended to compensate. If it were a question of damages at common law, the elements of damage would consist of present loss of wages, probable future loss of wages, pain and suffering, and temporary or permanent disability, which loss the jury would be at liberty to assess quite independently of the fact that the plaintiff was earning the same wages, except so far as that fact which might be evidential with regard to the extent of the disability." De Zeng Standard Co. v. Pressey, 86 N. J. L. 469, 470, 92 A 278.

Declaration of liability or suspensory award see infra § 152.

7. Burbage v. Lee, 87 N. J. L. 36, 93 A 859.

8. Geary v. Dixon, 4 F. (Ct. Sess.) 1143; Corbet v. Glasgow Iron, etc., Co., 40 Sc. L. Rep. 601; Parker v. Dixon, 39 Sc. L. Rep. 663; Jones v. London, etc., R. Co., 4 WCC 140. 9.

Roberts v. Charles Wolff Packing Co., 95 Kan. 723, 149 P 413. 10. Gailey v. Peet Bros. Mfg. Co., (Kan.) 157 P 431; International Harvester Co. v. State Industrial Commn., 157 Wis. 167. 147 NW 53, AnnCas 1916B 330; Cory v. Hughes, [1911] 2 K. B. 738, 4 BWCC 291; Chandler v. Smith, [1899] 2 Q. B. 506, 1 WCC 19; Warwick SS. Co. v. Callaghan, 5 BWCC 283; Ward v. Miles, 4 BWCC 182; Birmingham Cabinet Mfg. Co. v. Dudley, 3 BWCC 169; Wilson v. Jackson's Stores, 7 WCC 122. Giachas v. Cable Co., 190 Ill. A. 285; Jackson V. Hunslet Engine Co., 8 BWCC 584, 113 L. T. Rep. N. S. 630 (where the employee was offered his old work and wages); Great North of

See

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