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fore the injury, his capacity to earn such disability as impairs present may have been diminished; and under earning power at the particular occuvarious American statutes it has been pation, but embraces any loss of held, accordingly, that the incapacity physical function which detracts from of an injured workman is not to be the former efficiency of the body or its measured solely by the wages which he members in the ordinary pursuits of receives after the injury.

(For il life.” lustrations under the English statute, To the same effect, that there may see III. infra.)

be a statutory "disability," although Thus, it was held in WOODCOCK V. it appears that the earnings of the peDODGE BROS. (reported herewith) ante, titioner have not been impaired, is De 203, that the fact that an employee Zeng Standard Co. v. Pressey (1914) injured so as to prevent his following 86 N. J. L. 469, 92 Atl. 278, affirmed the particular employment in which without opinion, in (1915) 88 N. J. L. he was engaged at the time of the in 382, 96 Atl. 1102. In this case the jury, is able to earn greater compen employee, through the fracture of a sation in other employments, does not bone in a forearm, sustained an inprevent his receiving compensation jury which it was admitted caused the for diminished earning power in the permanent loss of 30 per cent of the employment which he followed when use of his arm. The court said: “The injured.

prosecutor's principal claim is that In Frankfort General Ins. Co. v. there cannot be a statutory 'disabilPillsbury (1916) 173 Cal. 56, 159 Pac. ity' when it appears that the earnings 150, the court said: “The ability of of the petitioner had not been imthe workman to do the exact work for paired. With this we cannot agree. which he had been employed at the It may well be that for a time an intime of the injury is not the sole jured employee might be able to earn measure of disability.”

the same wages as before the acciSo, in London Guarantee & Acci. Co. dent; but, as we read the act, the disv. Industrial Commission (1921) ability intended thereby is a disability Colo. 199 Pac. 962, the court said due to loss of a member, or part of a that the amount of wages paid by the member, or of a function, rather than former employer to the workman to mere loss of earning power. Even after the injury, as compared with the if this were not so, it does not follow wages received previously, is not con that the injured employee had not susclusive of the question of the work tained a distinct loss of earning power man's disability; that the question is in the near or not remote future, and whether the latter's physical and for which the award is intended to mental efficiency has been substan compensate. If it were a question of tially impaired, and to what extent, damages at common law, the elements and for what time this impairment of damage would consist of present will continue.

loss of wages, probable future loss of And it has been held under the New wages, pain and suffering, and temJersey act that the word "disability" porary or permanent disability, which is not restricted to mere loss of earn loss the jury would be at liberty to ing power, and that the mere fact that assess quite independently of the fact an injured workman is employed at that the plaintiff was earning the the same work and at the same wages same wages, except so far as that fact as before the injury will not disentitle might be evidential with regard to the him to compensation under the act, if extent of the disability.” his physical efficiency has been sub And in Hercules Powder Co. v. stantially impaired. Burbage v. Lee Morris County Ct. (1919) 93 N. J. L. (1915) 87 N. J. L. 36, 93 Atl. 859. In 93, 107 Atl. 433, the rule was laid this case the employee sustained per down that the sole criterion of a dismanent injuries through fractures and ability, partial in character and perdislocations. The court said: “The manent in quality, under the statute term disability' is not restricted to of that state, was not limited to the

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loss of earning power. And in this it was contended that the subsequent case, where the injured employee lost employment was skilled work of the one of his testicles, it was held that same class as he had been performing the loss was a “permanent injury” previously, and that the employer within the meaning of the statute by should be permitted to discontinue which compensation was awarded,

awarded, payment of compensation on the "where the usefulness of the member ground that the employee was able to is permanently impaired," or "where earn more in his new position than in any physical function is permanently the old. In holding that recovery of impaired."

compensation was not precluded, the In Foley v. Detroit United R. Co. court said that it was asked to hold (1916) 190 Mich. 507, 157 N. W. 45, that if a skilled laborer was so injured the court held that it is the “capacity as to debar him from ever continuing to earn,” and not the mere amount of the same employment, yet if his skill wages which the employee may be and training and acquired knowledge earning after the injury, that deter fitted him for doing work somewhat mines his right to compensation. In allied thereto, which he could perform this case a motorman on a street rail without diminution of earnings, then, way, who sustained an injury in a col from the time he entered upon such lision which rendered him partially new work and earned thereat as much unfit for this particular work, subse or more than before the injury, his quently obtained employment as compensation on account of the injury watchman at the street car barns, re must stop. It was said: “No precedceiving a larger amount as wages than ent for such a holding has been called he had received as motorman. Yet it to our attention, and counsel for was held that the industrial accident defendant say the point is one of first board had authority to award compen impression in this state. Just how sation for partial disability, where the skilled labor is to be classified is not statute provided that the weekly loss made apparent. If classification is to in wages referred to in the act should proceed upon the theory of employconsist of such percentage of the ments closely allied in skill and trainaverage weekly earnings of the injured ing, then the statute making the test employee as should fairly represent the impairment of his earning capacity "the proportionate extent of the im in the employment in which he was pairment of his earning capacity in the working at the time of the accident employment in which he was working does not mean what it says. The at the time of the accident."

board found from the evidence that And in Jameson v. Walter S. New 'said applicant at the time of his inhall Co. (1918) 200 Mich. 514, 166 jury was employed as a motor tester, N. W. 834, 18 N. C. C. A. 855, where which employment the board finds to an expert pile driver was physically be a skilled work and a distinct incapacitated by an accident from and particular employment, requiring pursuing that employment, although years of experience in motor building after his injury he received higher and dismantling in order to become wages for a time at lighter work, competent thereat.' That plaintiff was wages having generally increased in wholly incapacitated as a motor tester the meantime, an award on the basis is established. ... Defendant claims of total disability was sustained. to have no quarrel with such holdings,

Also, in Geis v. Packard Motor Car but asks us to place a meaning upon Co. (1921) - Mich. 183 N. W. 916, the occupation in which an employee where one employed by an automo is injured commensurate with ability bile manufacturer as a motor tester to turn his skill, training, and knowlsuffered an injury by the fracture of edge acquired in one employment to his right arm, rendering him unable to use in another closely related thereto. perform his duties in that capacity, The argument is ingenious, but to but was afterwards employed by the accede to it would start the thin edge same company as a motor inspector, of the wedge to a riving of the clear,

the

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terms of the statute, and open in a logging camp obtained work after field to equitable and conjectural con his injury in a paper mill at unskilled siderations now closed by the statute. manual labor, earning more than he We must stick to the statute and leave had before the injury. And it was defendant to present the equity of its held that a continuance of an award position to the legislature.”

on the basis of total disability, on the The holdings in several other Michi theory that the employee was still gan cases are here set out, for the totally disabled in his particular emreason that it appeared that after the ployment as a "woodsman" could not injury the employee received a larger be sustained. wage than he was receiving at the And in Kling v. National Candy Co. time of the injury, although this does (1920) — Mich. 180 N. W. 431, the not appear to be a controlling factor, same doctrine was applied, where a the cases turning on the nature of the youth employed in a candy factory as employment, and being to the effect a “candy mixer" sustained an injury that an award as for total disability to his hand, resulting in the loss of should not be made where the employee part of a finger and otherwise injuring is a common laborer, and is merely in the hand, and was subsequently offered capacitated by the accident to perform employment by the same company at the particular kind of common labor a larger wage than he was receiving he was performing at the time of the at the time of the injury; it being held accident.

that an award on the basis of total inThus, in Leitz v. Larabie Ice Co. capacity, on the ground that he was (1920) 211 Mich. 565, 179 N. W. 291, totally incapacitated for work in the where the plaintiff sustained an acci- particular employment in which he dental injury while in the employ of was engaged at the time of the accithe defendant ice company

dent should be set aside. common laborer, release from the pay The fact that there had been no loss ment of an award as for total dis of wages was held in Clark v. Kenneability was asked on the ground that bec Journal Co. (1921) Me. the employee's incapacity to earn Atl. 51, not to preclude recovery of wages had ceased, and that he was in

compensation under the Maine statute, fact earning more at manual labor where the applicant, in cranking an than he received at the time of the automobile, was struck on the arm and accident. It appeared that the plain sustained a permanent impairment to tiff was, at the time of the hearing, in his hand, the court saying that he had the employ of an automobile company, suffered a distinct loss of earning operating a punching machine, for

power in the near or not remote future. which he was receiving a larger wage The statute provided: "In all cases in than at the time of the accident. The this class where the usefulness of a industrial board, however, had found member any physical function that he was totally disabled in the thereof is permanently impaired, the employment in which he was engaged compensation shall bear such relation when the accident occurred. It was to the amount stated in the above held that on these facts an award on

schedule as the incapacity shall bear the basis of total disability should be to the injuries named in this schedule, set aside, the court holding that under and the commission shall determine the statute in that state the fact that the extent of the incapacity." a common laborer was not able to do

And under the provision of the Louexactly the same particular kind of isiana statute that payments should common labor he was doing when

not be made in any case "after the injured was not the test of total dis

employee is able to earn as much as ability-citing Miller v. S. Fair & Sons

he did before the acident," it was held (1919) 206 Mich. 360, 171 N. W. 380. in Norwood v. Lake Bisteneau Oil

The same principle was applied in Co. (1919) 145 La. 823, 83 So. 25, that Smith v. Stevenson Co. (1920) — Mich. recovery of compensation was not pre

180 N. W. 384, where a workman cluded merely because the employee,

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or

upon returning to his work two tinued mining, being helped with months after the accident, was paid the heavy lifting by his fellow workmen, same wages as before, where he was and his wages were sometimes as not fully capable of attending to his large or larger after the injury than work in caring for pumping ma they had been previously. chinery, which was started by other And where there was evidence workmen for him, and he was dis tending to show that as a result of charged at the end of eight months. the injury the plaintiff was less able

Also, in Gailey v. Peet Bros. Mfg. to perform his work as a car repairer, Co. (1916) 98 Kan. 53, 157 Pac. 431, it and the jury made a finding that is held that an employee partially in he was partially incapacitated, and capacitated by an injury from per awarded him the minimum compensaforming his labor does not lose his tion of $3 per week for the period right to compensation by remaining during which they found his partial inin the employment of his master at his capacity would probably continue, it former wages. It was said: “The was held in Hood v. American Refrigdefendant argues that within two erator Transit Co. (1920) 106 Kan. 76, weeks after the injury the plaintiff 186 Pac. 977, that the judgment should was employed by the defendant at the be affirmed, notwithstanding it apsame wages at which he had been peared that within a few months after employed previous to receiving the the plaintiff received his injury he injury, and that he voluntarily quit obtained employment elsewhere in the the defendant's employ. If this em same kind of work, and had been ployment relieved the defendant of earning almost double the amount of liability, then any employer can escape his average earnings at the time of liability for compensation by retain the injury. The statute provided that ing the injured employee and paying in case of partial incapacity the payhim wages, although he may not be ments should be computed so as to able to do as good work after the in equal 50 per cent of the difference jury as he did before. An injured between the amount of the average employee may not wish to continue to earnings of the workman before the work for the one in whose employ he accident and the average amount was injured, and, because of his in "which he" is most probably able to jury, he cannot obtain as good wages earn in some suitable employment or in another place. The injured em business after the accident,” subject ployee has a right to compensation for to a specified minimum. The court his injury. It does not matter that said: "Since there was evidence to his employer continues to accept his sustain the finding of partial incapacservices and pay him regular wages, ity, the plaintiff cannot be deprived unless that employment continues for of his right to the minimum compensathe entire period for which compensa tion fixed by the statute, merely betion might be allowed."

cause such incapacity is slight. The So, the court in Raffaghelle v. Rus fact that he has obtained employment sell (1918) 103 Kan. 849, 176 Pac. from another employer in the same 640, laid down the rule that "an in kind of work, and has been able to jured workman, who, only in pain and earn a great deal more than his averdistress and with the friendly help of age earnings at the time he received his fellow workmen, can earn as much the injury, must be regarded as acas he did before his injury, may main-. counted for by unusual conditions, of tain an action against his employer which the courts will not decline to for permanent partial incapacity take notice, and which have resulted under the Workmen's Compensation in a general increase in the wages Act.” The court applied this rule in paid to laborers." a case where a miner received such Also, in Sauvain v. Battelle (1917) injuries as diminished his earning 100 Kan. 468, 164 Pac. 1086, where the capacity, although it appeared that he plaintiff sustained an injury while had gone to another state and con engaged in car repair work, which

17 A.L.R.-14.

or

totally incapacitated him for this kind and was earning more wages than of work at least for a year, and secured before the injury. It was said: “A employment as foreman of a section minimum of $3 a week was prescribed, gang, the duties of which required no not because it would in each case be manual labor or much physical exer in accord with precise justice, but betion, receiving therefor a larger re cause as a general thing this was muneration than at the time of the deemed a fair lower rung for the injury, although his subsequent em ladder of allowances. While aiming ployment was of uncertain duration, at a thing named 'compensation,' no it was held that compensation was way was found to avoid, in every properly awarded him under the stat instance, certain inequities, to ute. The court said that it was provide in advance that judgments of settled that when one is totally or courts might never turn out to be, in partially incapacitated for hard manu the light of subsequent developments, al labor, he is not to be denied com slightly excessive or slightly lacking pensation because he obtains employ in sufficiency. Although the method ment, even at better wages, at a task of settlement and adjustment should which he is physically able to perform. have been, and was doubtless intended

And in Lombard v. Uhrich Planing usually to be, without resort to the Mills Co. (1918) 102 Kan. 780, 172 Pac. courts, it seems to have been con32, the court said that the fact that sidered that in any case of partial inthe plaintiff, after he quit the employ capacity the traffic-otherwise the pubof the defendants, was employed in a lic—could and should bear at least like capacity, for other parties, at a $3 a week. While partially disabled, more remunerative wage, did not de should a workman by some happy feat his right to recover under the revolution of the wheel of fortune, by Workmen's Compensation Act.

entering a profession or by obtaining The Kansas statute providing that a light but lucrative position, be when partial incapacity for work placed beyond the need of the $3 results from injury, periodical pay allowance, no means has been proments during such incapacity shall vided for its detachment from the not be less than 25 per cent, nor ex aggregate of his income.” ceed 50 per cent, based upon the It was held in Hanley v. Union average weekly earnings computed as Stock Yards Co. (1916) 100 Neb. 232, provided in the act, but in no case less 158 N. W. 939, that if a workman is than $3 per week, has been construed, disqualified to continue his regular it was said in Seckman v. Monarch employment, the fact that he may proCement Co. (1917) 100 Kan. 463, 165

temporary employment in a Pac. 278, as meaning that if a work different occupation for a few days at man suffers a permanent injury which equal or greater wages is not consubstantially reduces his earning clusive that his disability has ceased. capacity, he is entitled to receive at If, however, the employee returns to least $3 a week until the end of the his former work at the same or higher eight-year period specified in the stat wages, or the employer makes a bona ute, regardless of what he could earn fide offer so as to restore him to work, or did earn during that time.

these facts may be evidence that his And in Dennis v. Cafferty (1917) earning capacity has not been im99 Kan. 810, 163 Pac. 461, the court paired, and if there is no showing of a held that the minimum of $3 a week loss of earning capacity due to the allowed by the Kansas statute for par- injury, compensation, under some of tial disability was a sum fixed by the the statutes, is precluded. legislature, with the general view and Thus, under the Rhode Island statpurpose of compensation, and should ute, if the petitioner has presented no not be withheld merely because, in a evidence showing loss of earning given case before the expiration of capacity, the court cannot make an the period of parital incapacity, the award of compensation. Weber v. workman found other employment American Silk Spinning Co. (1915) 38

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