Section

ARTICLE II

DISABILITY AND INCAPACITY FOR WORK

155. "Disability" and "incapacity for work."

156. Permanent total disability.

157. Permanent partial disability.

158. Temporary total disability.

159. Temporary partial disability.

160. Computation in case of previously impaired physical condition. 161. Hernia-California.

§ 155. "Disability” and “incapacity for work"

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Compensation is awarded for disability and incapacity for work, whether permanent or temporary, total or partial. Since "disability" usually means more than mere loss of earning power, the fact that an injured workman is employed at the same work and the same wages after the injury as before will not disentitle him to compensation if his physical efficiency has been substantially impaired. It is essential, however, that there be some impairment of efficiency. The occupation to be considered in making a dis

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64 Compensation should be provided by the employer or his insurer for all injuries involving permanent or temporary disability, whether total or partial. Wagner v. American Bridge Co. (Sup.) 158 N. Y. Supp. 1043.

65 (P. L. 1911, p. 134, § 2) Burbage v. Lee, 87 N. J. Law, 36, 93 Atl. 859; De Zeng Standard Co. v. Pressey, 86 N. J. Law, 469, 92 Atl. 278; Gailey v. Peet Bros. Mfg. Co., 98 Kan. 53, 157 Pac. 431.

66 This legislation does not cover injuries having no tendency to impair the efficiency of the employé in his occupation, as where an employe's ear was bitten by a horse and its amputation became necessary. Shinnick v. Clover Farms Co., 169 App. Div. 236, 154 N. Y. Supp. 423.

An employé who has suffered no loss other than two teeth, which have been

ability rating is usually that at which the employé was engaged at the time of the injury. Under some Acts, recovery is allowed for total disability because the employé was unfitted by his injury to follow the occupation in which he was engaged when injured, although it is shown without dispute that he was capable of earning substantial wages in other occupations.68

replaced by the employer, is not entitled to any compensation. Kandalets v. Swift & Co., Bulletin No. 1, Ill., p. 24.

Where the employé was incapacitated for work for a time by straining his left shoulder while he was pushing on a piece of joist in order to remove a safe, but there was no restriction in his power to use the injured shoulder or arm, or in its field of motion, at the time of the hearing, the employé was denied compensation. Robson v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 235 (decision of Com. of Arb.).

"The Compensation Act does not attempt to compensate the applicant for the loss of his fingers, nor for his pain and suffering. It merely considers him as a workman, and provides him with competent medical attention, and compensates him for 65 per cent. of his loss of wage." Janiec v. MitchellLewis Motor Co., Bul. Wis. Indus. Com., 1912-13, p. 30.

67 Felsen v. Atchison, Topeka & S. F. Ry. Co., 3 Cal. I. A. C. Dec. 11. In computing the average annual earnings of a machinist, who, while working as such machinist, has sustained injury to his hand, resulting in the loss of his ability to play and teach the violin, whereby he had earned considerable in addition to his wages as machinist, such earnings must be disregarded; the Act not contemplating compensation except upon the basis of earnings in the industry in which injury occurs. Id.

The award of compensation must be based on disability and loss of wages as applied to the employment in which the applicant was performing service at the time of his injury. Winters v. Mellen Lumber Co., Bul. Wis. Indus. Com. vol. 1, p. 89. Disability of a common laborer must be considered in regard to his being able to go back to work as a common laborer in the various kinds of work pertaining to that employment. Janiec v. Mitchell-Lewis Motor Co., Bul. Wis. Indus. Com. 1912-13, p. 30.

The ability of the workman to do the exact work for which he had been employed at the time of the injury is not the sole measure of disability; the nature of the physical injury or disfigurement and the workman's age may also be considered. Frankfort General Ins. Co. v. Pillsbury (Cal.) 159 Pac. 150.

68 International Harvester Co. v. Indus. Com., 157 Wis. 167, 147 N. W. 53. Ann. Cas. 1916B, 330.

"Incapacity for work" means loss of earning power as a workman in consequence of the injury, whether the loss manifest itself in inability to perform such work as may be obtainable, or inability to secure work to do," or inability to reach his place of work.7°

69 Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244. What the Legislatures had in mind was compensation for loss of earning capacity as a workman as a result of injury. Whether this loss manifest itself in inability to perform work which is obtainable or inability to secure work to do is not very material. While personal injury must occur, when the word "incapacity" is not expressly qualified by the use of the word "physical" in the statute, deprivation of power to earn wages as a workman as a result of injury is incapacity within the meaning of the law. Id. "Incapacity for work" means no more than inability to earn wages, or full wages, as the case may be, at the work in which the injured workman was employed at the time of the accident. Duprey v. Maryland Casualty Co., 219 Mass. 189, 106 N. E. 686; Ball v. William Hunt & Sons, Ltd., 5 B. W. C. C. 459; McDonald v. Wilsons & Clyde Coal Co., Ltd., 5 B. W. C. C. 478; Gillen's Case, 215 Mass. 96, 102 N. E. 346, L. R. A. 1916A, 371. Inability to obtain work resulting directly from a personal injury is an incapacity for work within the meaning of this act, though a like inability resulting from some other cause, such as an altered condition of the labor market, would not be so. The inability to get work is evidence tending to show an incapacity for work, though it will not always be conclusive. In re Sullivan, 218 Mass. 141, 105 N. E. 463, L. R. A. 1916A, 378; Radcliffe v. Pacific Steam Navigation Co., [1910] 1 K. B. 685; Cardiff v. Hall, 4 B. W. C. C. 159, [1911] 1 K. B. 1009; Brown v. J. J. Thornecroft & Co., Ltd., 5 B. W. C. C. 386; Ball v. William Hunt & Sons, Ltd., supra (overruling 1 K. B. 1048); McDonald v. Wilsons & Clyde Coal Co., supra. Where the injury necessitated amputation of the employé's arm, he was entitled to compensation for a total incapacity for work during the entire time that he was out of work, though during a portion of that time he was physically able to work, but on account of being a one-armed man was unable to procure work. (St. 1911, c. 751, pt. 2, § 9) In re Sullivan, supra. Where an injured employé has been unable after repeated efforts to get an opportunity to earn wages, a finding that his earning capacity is gone, and that therefore he is under an "incapacity for work," is warranted, though he has a physical capacity to work and earn money. Duprey v. Maryland Casualty Co., supra. Where the disability of the employé is of such a character as to interfere with his ability to secure employment, as distinguished from his ability to do work, such dis

70 Where a workman fractured his ankle, and although otherwise in good health, could not walk to his work, such inability was held to constitute total incapacity. Beddard v. Stanton Ironworks Co., Ltd. (1913) 6 B. W. C. C. 627, C. A.

This expression was taken from the English Workmen's Compensation Act of 1906, in which it was provided that the amount of compensation to be paid "where total or partial incapacity for

ubility is compensable, and the Commission has decided on a form of conditional award to include and provide for such disability. Raily v. Island Transportation Co., 2 Cal. I. A. C. Dec. 608.

Where as a result of the injury the employé's opportunity to obtain work had been so narrowed that he found it impossible to get any employment, and his ability to earn had been thereby rendered negligible, the possibility of his obtaining work being so remote, and the market for workmen of his capacity for performing work so inaccessible, that he was to all intents and purposes, at least for some time, totally incapacitated for work, he was awarded total incapacity compensation. Gillen v. Ocean Accident & Guarantee Corp., Ltd., 2 Mass. Wk. Comp. Cases, 812 (decision of Indus. Acc. Bd.). The employé lost his arm by accident, and for a period of five months, from May 31 to October 25, did not work. He diligently endeavored to secure employment, but was unable to do so because of the loss of his arm. He obtained a position as watchman on October 26 at an average weekly wage of $15. The evidence showed that on May 31 he was capable of performing the work which he finally procured, or any work which a one-armed man could ordinarily perform. It was held that the employé was totally incapacitated for work during the period from May 31 to October 25. Sullivan v. American Mutual Liability Insur. Co., 2 Mass. Wk. Comp. Cases, 435 (decision of Com. of Arb., affirmed by Indus. Acc. Bd., also by Sup. Jud. Ct., 218 Mass. 141, 105 N. E. 463, L. R. A. 1916A, 378). The employé, a foreman, had his right hand crushed, the first and second fingers severed, and the hand otherwise so mutilated that it would never be useful. Practically the only work which he could do was that of foreman, the position which he held when he was injured, and which he again expected to obtain when contracting business improved. Because of the mutilation of his hand he could not find employment as a blacksmith, his previous occupation; nor was he able, on account of the injury, to obtain any other work. He was entitled to compensation on the basis of total incapacity for work. Brennan v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 503 (decision of Com. of Arb.). An employé received a personal injury, necessitating the severance of two fingers of the right hand, and was subsequently furnished work which he was unable to perform. He was thereupon discharged, and the insurer declined to pay compensation. The employé searched diligently for work, but was unable to obtain any which he could do because of the incapacity due to the injury. He was held entitled to compensation on the basis of total incapacity. Krulla v. Casualty Co. of America, 2 Mass. Wk. Comp. Cases, 409 (decision of Com. of Arb.).

Where a workman who had been partially incapacitated was doing light

work" resulted from the injury should be certain weekly payments. Accordingly decisions of the English courts fixing the meaning there to be given to these words are of great weight." The same words were used in an earlier English statute, and it was held by the Court of Appeals that the object of the Act was to give compensation for an inability to earn wages, and that if an injured employé, after repeated efforts, could not get an opportunity to earn wages, a finding that his earning power was gone, and that therefore he was under an "incapacity for work," was warranted, though he had a physical capacity to work and earn money.72 There is incapacity for work when a man has a physical defect which makes his labor unsalable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labor salable for less than it would otherwise bring." Incapacity refers to inability to get work in the open market, and not to whether the workman is receiving the same wages as before the accident. The question is: Was the workman left in such a

work for his employers and receiving part compensation, and, being then dismissed, was unable to find work in the district, the incapacity included the loss due to the inability to obtain work. McDonald v. Wilsons & Clyde Coal Co., Ltd. (1912) 5 B. W. C. C. 478, H. L.

71 In re Sullivan, 218 Mass. 141, 105 N. E. 463, L. R. A. 1916A, 378; In re Hunnewell (1915) 220 Mass. 351, 107 N. E. 934.

72 Clark v. Gas Light & Coke Co., 21 L. T. R. 184.

73 Ball v. Hunt & Sons, Ltd. (1912) 5 B. W. C. C. 462.

Where a county court judge granted full compensation for a period during which a collier who had ruptured himself waited for a vacancy at the hospital and an operation, refusing, on medical advice, to work during that period, the judge saying that he had acted reasonably, it was held to be a misdirection, since the question was not one of reasonableness, but of capacity to work. Evans v. Cory Bros. & Co., Ltd. (1912) 5 B. W. C. C. 272, C. A.

74 The statutory test is earning capacity, and if it should appear upon the facts that the workman's earning capacity is less after than it was before or at the time of the accident, it seems that he might have a claim even if he was in fact receiving the same wages at the two periods. Freeland v. Macfarlane, Lang & Co. (1900) 2 F. 832, Ct. of Sess. (Act of 1897).

A boy workman, who had been injured, was paid more by the same em