exists when by reasonable diligence an employé can earn. When this ability has returned to him to a definite extent, he is then only entitled to compensation for temporary partial disability.22 Evidence that the injured employé was employed by his former em

matic cataract developed, which sympathetically affected the left eye and caused incapacity for work (Stachuse v. Fidelity & Casualty Co. of N. Y., 2 Mass. Wk. Comp. Cases, 324 [decision of Indus. Acc. Bd.]); where a carpenter, blind in one eye and partially deaf at the time of the injury, was incapacitated for work except "bench work," though he claimed later to be totally incapacitated from performing any work, and was shown upon examination by an impartial examiner to be unable to perform any work except that which could be done while seated (Duprey v. Md. Casualty Co., 2 Mass. Wk. Comp. Cases, 132 [affirmed by Sup. Jud. Ct., 219 Mass. 189, 106 N. E. 686]); where the employé suffered a fracture of the bones in his left hand and of his right arm, above the elbow, the latter so serious that the broken bone never united, leaving the left hand considerably stiff and cramped, and the right arm incapable of use, and endeavored to obtain work at various places of employment without success, being in fact unable to earn any wages (Jamieson v. Fidelity & Deposit Co. of Md., 2 Mass. Wk. Comp. Cases, 772 [decision of Com. of Arb.]); where an impartial physician reported that the employé was still unable to do the work of a grocery clerk, his regular occupation, and recommended that the treatment suggested by the employé's physician be afforded him (Portnoy v. Fidelity & Casualty Co. of N. Y., 2 Mass. Wk. Comp. Cases, 823 [decision of Indus. Acc. Bd.]); and where a carpenter had the tip of the thumb of his right hand taken off by a planer knife, and later obtained employment wheeling coal, but, finding he was unable to continue at this work because of further trouble with the injured thumb, asked for lighter work, was discharged, and was unable to obtain other work (Noval v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 586 [decision of Com. of Arb., affirmed by Indus. Acc. Bd.]). Where the evidence showed that the employé received a peculiar and serious injury, which in fact incapacitated him wholly for work, and there was need of further expert medical treatment in order to more promptly restore the employé to normal working efficiency, the employé was totally incapacitated for work. Dibilio v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 485 (decision of Com. of Arb.).

22 Larnhart v. Rice-Landswick Co., 1 Cal. I. A. C. Dec. 557.

Where a concrete worker, who sustained an injury while working for the same employer as a common laborer digging trenches, recovered sufficiently to assume the duties of a common laborer, but was not strong enough to perform the more arduous duties of a concrete worker, the compensable temporary disability had terminated. Utieres v. Otto, 2 Cal. I. A. C. Dec. 652.

ployer and paid wages, after the accident, though some evidence that he was not wholly incapacitated, is not conclusive.23

Under the California Act, where the permanent disability rating was for a period of sixteen weeks for the crippling of the employé's left hand, but the actual total incapacity resulting from the injury lasted for five months longer, compensation is payable for the actual total disability; the permanent partial rating being included therein.24 Where the employer paid full wages during the disability, and there is no evidence showing an agreement of the parties as to what portions were respectively for services and compensation, it will be conclusively presumed that the disability was total.25

§ 159. Temporary partial disability

Like other phases of disability, the existence of temporary partial disability is to be determined from the facts of each particular case.26 Under the Massachusetts Act, an award of compensation

23 In re Septimo, 219 Mass. 430, 107 N. E. 63.

24 Maher v. Sunset Lumber Co., 2 Cal. I. A. C. Dec. 602.

25 Turner v. City of Santa Cruz, 2 Cal. I. A. C. Dec. 991.

26 Where a carpenter's foreman is still able to supervise the work he is employed upon, but is unable as the result of the accident to use tools and work with those under him, he is under a partial disability. It is not generally or customarily true that a carpenter's foreman is not expected to use tools and only to superintend the work of carpenters under him. While this would be true of a superintendent of construction on a large building, it is not generally true of the foreman of a gang of carpenters. Gordon v. Evans, 1 Cal. I. A. C. Dec. 94. A fracture of the main bone of the forearm, because of the pain, if for no other reason, constitutes disability for a reasonable period, whatever the occupation of the injured person, and therefore entitles him to disability compensation. Shouler v. Greenberg, 1 Cal. I. A. C. Dec. 146. The statement of the doctor that applicant cannot do ordinary labor, together with his own testimony to the same effect, practically uncontroverted, is sufficient to warrant a conclusion that the applicant was at least partially incapacitated from earning a living. Acrey v. City of Holtville, 2 Cal. I. A. C. Dec. 587.

In Peters v. Indianapolis Abattoir Co., 1 Conn. Comp. Dec. 263, where the

for total disability to terminate at a certain date did not preclude the employé from securing payment for partial disability, where it appeared that it was intended that the question of payment for partial disability should be left open for future determination.27

§ 160. Computation in case of previously impaired physical condition

In some states, where an injury to an employé results in total disability because his physical condition was previously impaired, claimant had recovered from his injuries, all but a tenderness on the left side and atrophy of the muscles, but suffered from backache resulting from overuse and strain upon the muscles of the back, consequent upon his injury, he was awarded compensation for partial incapacity. In Jacobs v. American Steel & Wire Co., 1 Conn. Comp. Dec. 100, where the claimant, after several weeks of total incapacity from being struck in the eye with a wire, returned to work, but was unable to work full time because he was still undergoing medical treatment, which caused continual pain and annoyance, he was awarded one-half the difference between his wages before and after the injury, on the basis of partial incapacity. In Cottun v. I. Newman & Sons, 1 Conn. Comp. Dec. 289, the commissioner found, on medical evidence conflicting as to whether there was mere fiabbiness of the injured muscle at the time of hearing, or an injury to the structure, that there was partial disability, but refused to find that condition permanent, and recommended that the employer offer work under favorable conditions, so as to ascertain definitely the extent and probable duration of such incapacity, the award for five weeks additional to be modified if it later appeared necessary.

The employé, who had previously been awarded indemnity for total incapacity, had obtained a position at which he was able to earn an average weekly wage of $1.50. He had made several efforts to obtain other employment, but without success. The medical testimony showed that his partial incapacity for work was due to a condition of hysterical blindness and neurosis, having a casual relation with the personal injury received. His average

weekly wages at the time of the injury were $30. It was held that the employé is entitled to compensation on account of partial incapacity. Hunnewell v. Casualty Co. of America, 2 Mass. Wk. Comp. Cases, 827 (decision of Indus. Acc. Bd., affirmed by Sup. Jud. Ct., 220 Mass. 351, 107 N. E. 934).

It was error to classify the "consolidation" of two inches of the workman's lung as temporary, after it had healed as much as it would ever heal, and thereby extend the allowance for temporary disability. (P. L. 1913, p. 302, 27 In re Hunnewell, 220 Mass. 351, 107 N. E. 934.

as where a one-eyed man is made totally blind by the loss of the other eye, or a man having only one hand loses it, the award is made for total disability.28 In other states, a different rule prevails,2o and, in case of loss of sight, compensation is allowed only

amending Wk. Comp. Act of 1911) Birmingham v. Lehigh & Wilkesbarre Coal Co. (N. J. Sup.) 95 Atl. 242, distinguishing Nitram Co. v. Creagh, 84 N. J. Law, 243, 86 Atl. 435, in which the temporary award ran while the hand was in process of healing.

28 "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 possession of all his faculties. But nevertheless it was the employé'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 work resulting from the injury is total. It establishes no other standard. It fixes no method for dividing the effect of the injury, and attributing a part of it to the employment and another part to some pre-existing condition, and it gives no indication that the Legislature intended any such division. The total capacity of this employé was not so great as it would have been if he had had two sound eyes. His total capacity was thus only a part of that of a normal man. But that capacity, which was all he had, has been transformed into a total incapacity by reason of the injury. That result has come to him entirely through the injury." In re Branconnier, In re Travelers' Insur. Co., 223 Mass. 273, 111 N. E. 792.

Where a workman, having only one hand, lost it as the result of an accident in his employment, he was entitled to compensation for total disability. (Wk. Comp. Law, § 15, subd. 1) Schwab v. Emporium Forestry Co., 167 App. Div. 614, 153 N. Y. Supp. 234.

A pile driver lost the vision of his left eye by accident. The vision in the right eye had been destroyed previously by a cataract, and he was totally incapacitated for work because of the injury. The Committee of Arbitration awarded compensation on account of total disability. Morrison v. Fidelity & Casualty Co., 2 Mass. Wk. Comp. Cases, 594 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.).

29 The liability of the employer is ordinarily limited to compensation commensurate with the injury suffered by the employé while in his service, and he is relieved from the consequences of an injury previously sustained, even though both resulted in permanent total disability. The employer accepts in his service a disabled employé, knowing of the disability and with knowledge

for the loss or disability which resulted from the injury suffered in the employment.80

that under the Compensation Act he is liable for accidental injuries to such employé while engaged in his service; but to couple the prior disability with one suffered while in his service, and make the employer liable for both, would seem a hardship the Legislature intended to avoid. State ex rel. Garwin v. District Court, 129 Minn. 156, 151 N. W. 910.

30 Where a workman, who had previously lost one eye, lost the other in an accident arising out of and in the course of his employment, the injury could not be considered a total disability. Weaver v. Maxwell Motor Co., 186 Mich. 588, 152 N. W. 993, L. R. A. 1916B, 1276.

Prior to the time relator entered respondent's service he had lost the sight of one eye by accidental means. After entering respondent's service he lost, by accident happening during the course of his employment, the sight of his other eye, thus rendering him totally blind. It was held, under section 15 of the Compensation Act, that the last employer was liable for a permanent partial disability only, for that was the extent of the injury which the employé suffered while in his service. State v. District Court, supra. Section 15, Wk. Comp. Act, limits the liability of an employer for accidental injury to an employé, where such employé had before entering the service suffered an injury which resulted in permanent partial disability, to the compensation provided for by section 13 for a permanent partial disability, though both injuries together result in permanent total disability. (Gen. St. 1913, c. 84a, §§ 8195-8230). Id.

Where an employé sustained a serious injury to one eye in 1911, which would eventually result in total blindness of that eye, and in 1914 sustained the immediate destruction of the sight of the other eye by accident occurring in the course of his employment with the defendant, the percentage of perma nent disability for which the employer is liable in compensation is to be determined solely with reference to the physical injuries caused by the second accident, and not with reference to the condition of the applicant ensuing after the second accident, as influenced by the first. The employer is therefore liable to pay compensation for the loss of one eye, and not for total blindness. Rouner v. Columbia Steel Co., 2 Cal. I. A. C. Dec. 207. Where disability is prolonged by reason of the injured workingman's having suffered, prior to the happening of the accident in question, from varicose ulcers, so as to have practically no skin left, but only scar tissue upon the exposed parts, and this feature greatly prolongs disability from a new ulcer caused by an accidental bruise, the disability payments will be limited to such time as, in the judgment of the competent medical advisers, the disability would have terminated in any ordinary case of varicose ulcer. Fischer v. Union Ice Co., 2 Cal. I. A. C. Dec. 72. Where the applicant