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such as compensation for a prior injury,' charity,' the value of assistance necessarily procured by the employé, whether furnished gratuitously or paid for by him, or business profits,10 or payment for the use of the employé's horse in his work,11 or the rent of a house supplied by his employer under the terms of a lease, and not gets. It is remuneration in the sense that it is something which he receives for his labor; it is remuneration in the sense that it is something the expense of which has to be borne by his master to procure that labor."

7 Where an injured workman, who was receiving compensation for his injury under the agreement that his pay each week for light work as a battery carrier, divided by two, should be subtracted each week from the amount of compensation, met with a fatal accident while doing the light work, only his wages as battery carrier are to be considered in computing his earnings. Gough v. Crawshay Bros., Ltd. (1909) 1 B. W. C. C. 374, C. A.

8 Where a blind man, working in a charitable institution, was supplied with board, lodging, clothing, and 5s. a month besides, and the part exceeding what he earned was made up by charity, compensation must be based on his weekly earnings, excluding the contributions of charity. MacGillivray v. Northern Counties Institute for the Blind (1911) S. C. 897, Ct. of Sess.

9 The wages of a drawer, paid by a miner who was compelled to employ him, were not part of the miner's earnings. McKee v. Stein & Co., Ltd. (1910) 3 B. W. C. C. 544, Ct. of Sess. Where a miner was assisted by his son without remuneration, although the work was worth 2s. 9d. per day, there being no money paid, there could be no reduction in earnings. Nelson v. Kerr & Mitchell (1901) 3 F. 893, Ct. of Sess.

10 Where a workman, who was paid £94 a year before his accident, made £98 a year clear profit on a public house which he bought after the injury, this amount cannot be taken as a criterion of his earning capacity. Paterson v. Moore & Co. (1910) 3 B. W. C. C. 541, Ct. of Sess. Where a teamster worked under an agreement for 5s. a week, provided that, if he ever earned more than 10s. a week, his wages were to be submitted to arbitration, and employed his father and a lad on a farm he owned, paying his father 13s. a week, the decision of the judge reducing his compensation for loss of his left thumb to 1d. a week was not disturbed. Duberly v. Mace (1913) 6 B. W. C. C. 82, C. A.

11 Where an employé is hired at $5 a day, and required to furnish his own horse without additional pay, it would be manifestly improper to allow as wages the value of the hire of the horse, that being an income from the capital invested, and not for the personal services of the rider. While there is no absolute standard of wage for man and horse separately, the evidence here established as a reasonable division the daily wage of $3 for the serv. HON.COMP.-37

as a part of the salary,12 or wages possible under a contract, but not in fact received,13 or a pension from the government.1 Where an employer pays to an employé having general charge of the affairs of the business a fixed sum of money each month, from which the employé is required to pay an assistant, if one is employed by him to assist in the work, such sum as may be agreed upon between the employé and the assistant, the sum so paid the assistant forms no part of the salary or compensation of the employé, and in determining the salary of such employé the amount paid the assistant must be deducted from the total amount paid by the employer.15

§ 148. Loss of earning capacity

Compensation is based upon the loss of earning power or capacity to earn,1o as to which the claimant has the burden of proof." The

ices of the man and $2 for rental of the horse. Kid v. New York Motion Picture Co., 1 Cal. I. A. C. Dec. 475.

12 Where, as an inducement to enter the employment, an employé secures a lease of a tract of land of his employer upon which is located the house in which the employé lives while performing the work of his employment, the rent of the house cannot be included as a part of the salary of the employé. Olson v. Olson Winery Co., 2 Cal. I. A. C. Dec. 325.

13 Where the contract of employment of a wine maker provided for the payment of a salary and also for an increase of $25 for each 100 tons crushed in excess of 700 tons, with the assurance that the winery would run at its full capacity of 2,000 tons, but the evidence showed that no grapes in excess of 700 tons were crushed, the sum specified in the contract constituted the annual earnings of the employé. Olson v. Olson Winery Co., 2 Cal. I. A. C. Dec. 325.

14 A pension from the United States government on account of service rendered in the army or navy, or on account of disability incurred in the military or naval service, will not be considered in ascertaining the "average weekly wage." In re Harriet Horn, vol. 1, No. 7, Bul. Ohio Indus. Com., p. 35. 15 State ex rel. Gaylord Farmers' Co-op. Creamery Ass'n v. District Court, 128 Minn. 486, 151 N. W. 182.

16 Without such loss there is no provision for compensation. (Wk. Comp. Act, c. 831, art. 2, § 11) Weber v. American Silk Spinning Co. (R. I.) 95

17 See note 17 on following page.

object of this legislation, broadly stated, is to compensate for loss of capacity to earn, measured by what the workman can earn in

Atl. 603. The scheme of the Compensation Acts makes compensation almost inseparable from wages. Porton v. Central (Unemployed) Body for

London (1910) 2 B. W. C. C. 301.

Farwell, L. J., has said: "The Acts do not give compensation for a loss such as the loss of a limb, but for the loss of earning capacity actually caused by the loss of such limb. During the continuance of such incapacity the loss of the limb diminishes the capacity to earn, but the court has to measure the compensation by the loss of earnings. Therefore, if the workman has learned as a one-armed man to earn, and earn as high or higher wages than he got as a man with both arms, he cannot then get compensation, for there is no loss. * Physical incapacity due to the loss of a limb is doubtless strong and probably conclusive evidence, in the absence of anything else, of incapacity to earn full wages on an application to award compensation." Calico Printers' Association, Ltd., v. Higham (1912) 5 B. W. C. C. 110.

*

The evidence showed that the employé, manager for the subscriber, received a cut from a circular saw which necessitated the amputation of the forefinger and caused material damage to the second finger of the right hand. The employé claimed that his earning capacity had been lessened by the injury, stating that, whereas he was able to earn $27 weekly before the injury, he was able to earn only $13.50 afterward. The record of the meeting of the corporation by which he was employed showed that by vote of the corporation at its annual meeting, seven months after the injury, the employe's wages were fixed at $27 for the ensuing year, but despite this vote it was claimed that the earning capacity of the employé was only $13.50 weekly. The employé was held not entitled to compensation. Grady v. Fidelity & Deposit Co. of Md., a Mass. Wk. Comp. Cases, 678 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.).

Computation of loss of earning power.-In Carlson v. Emanuelson, 1 Conn.

17 The burden is on the claimant to show with reasonable definiteness the extent of the loss of earning capacity. Weber v. American Silk Spinning Co. (R. I.) 95 Atl. 603.

In Jacobs v. American Steel & Wire Co., 1 Conn. Comp. Dec. 100, it was held that the claimant could not be allowed incapacity compensation on account of an injury to his eye which incapacitated him for work as a printer, when he had not worked at this trade for 18 years previous, did not secure printing work after voluntarily leaving his other employment, and did not produce any evidence of the prevailing wages in the printing trade at the time, though experts agreed that he was incapacitated for such work approximately 10 per cent. The claimant must show his earning power after the injury, in order to recover for loss of earning power.

the employment in which he is, under the conditions prevailing therein before and up to the time of the accident. That he takes a

Comp. Dec. 139, where a woman, employed to do washing, ironing, housecleaning, and similar duties for several employers, sustained an injury, after which she was only able to work two days a week, instead of six, as before, she was awarded one-half her loss of wages during such partial incapacity. Where the claimant has recovered sufficiently to be able to work one-half of the time, he is to be awarded one-half the difference between his wages at the time of the injury and what he is able to earn now by reasonable effort. Hurlowski v. American Brass Co., 1 Conn. Comp. Dec. 6. In Field v. N. Y., N. H. & H. R. R. Co., 1 Conn. Comp. Dec. 199, it was held that the Commissioner, in awarding for partial incapacity, can determine as a matter of judicial knowledge, considering evidence of the workman's capabilities and health, what a man partially incapacitated can reasonably earn. The employé was in a nervous condition, and it was found that the only practical way to regain his capacity was for him to begin on light work, and gradually increase the work until he entirely recovered; the Commissioner awarding compensation until a time sufficient to effectuate a complete recovery. In Bristol v. Bristol, 1 Conn. Comp. Dec. 368, where the employé, partially incapacitated, worked for the same employer, receiving $20 less per month than before, one-half that amount was awarded him as compensation; in this case the employer had already paid more than that amount, and so was discharged from liability. In Margolin v. Union Hardware Co., 1 Conn. Comp. Dec. 334, where because of the injury to his eye the claimant was unable to do his previous work, or any other which he could find, he was awarded for total incapacity, provided that, if his employers found him work, the wages he then earned should be taken as his earning capacity. In Baggonski v. Clayton Bros., Inc., 1 Conn. Comp. Dec. 299, where it appeared that the claimant had been taken back by his employer, but whereas he earned $1.75 per day before the injury, he was then earning but $1.50, compensation for partial incapacity was awarded on the basis of the difference of earnings before and after the injury. (Wk. Comp. Act, pt. B, § 12) In Penfield v. Town of Glastonbury, 1 Conn. Comp. Dec. 637, where a janitor who had been injured continued to work and draw full wages, but had to employ assistants he would not otherwise have needed, compensation for loss of earnings, based upon the amounts so expended, was awarded. New York. In determining the amount of an award for compensation, the fact that the vocation of blacksmith helper is not a vocation which requires much time or talent to acquire, and that the workman can without loss take up some other vocation that is as remunerative as that of a blacksmith helper, will be considered. Saccoccio v. Bradley Contracting Co., The Bulletin, N. Y., vol. 1, No. 5, p. 11. That a stockholder would not have received so large a salary, but for the fact that he was a stockholder, and that if he were to go into the employ of

holiday and forfeits his wages for a month does not interfere with what he can earn. It is only that for a month he did not choose to earn. So, too, where there is a casualty accidentally stopping the work. But where it is part of the employment to stop for a month in each year, he cannot earn wages for that time in that employment, and his capacity to earn is less for the year.18 Under the Ohio Act it has been held that, inasmuch as the purpose of the Act is to compensate the employé for impairment of his earning capacity and not for pain and suffering 1o-the rule prevailing under many of the Acts, including that of California 20-a workman who

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any other person his salary would be greatly reduced owing to his injury, did not form a basis for allowing compensation where his salary in fact continued the same as before the accident. Kennedy v. Kennedy Mfg. Co., The Bulletin, N. Y., vol. 1, No. 5, p. 12. It was later held (vol. 1, No. 8, p. 8) that, in view of fact that his salary bad been reduced by the company which succeeded his former employer, he should be allowed compensation based on his loss of earnings.

18 Anslow v. Cannock Chase Colliery Co., Ltd. (1910) 2 B. W. C. C. 361, C. A., and 365, H. L.

Where an injured workman, who had returned to work in a different capacity, was earning as much as before the accident, but later, during a general fall in wages, had his pay reduced, the reduction was not due to incapacity, and cannot be considered a loss of earning power. Merry & Cuninghame, Ltd., v. Black (1910) 2 B. W. C. C. 372, Ct. of Sess.

The Industrial Accident Board was not prevented from awarding additional compensation for impairment of earning capacity in the workman's trade by the fact that the claimant, when filing his petition for additional compensation and when the testimony was taken, was earning as much or more wages in another employment than he did before the accident. Foley v. Detroit United Ry. (Mich.) 157 N. W. 45.

Awards made are according to a surgical scale of relative impairment of earning capacity. Previous wages or specialized value of lost members cannot be considered. While the workman may not get full "compensation," he will always get some compensation, without expense to him and at a time when he most needs it. (Wk. Comp. Act Wash. § 5) Rulings Wash. Indus. Ins. Com. 1915, p. 17.

19 In re David Burns, vol. 1, No. 7, Bul. Ohio Indus. Com., p. 5.

20 Compensation is not allowed for pain and discomfort following injury, but only for disability to labor at any form of employment which the injured

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