R. I. 309, 95 Atl. 603, Ann. Cas. 1917E, 153. In this case, where a foreman in a silk mill sustained an injury to his hand, including amputation of a finger, but declined the employer's offer, after the injury, to restore him to his position at the same wages, the court said: "The petitioner seems to overlook the fact that § 11 of article 2 of chapter 831 is only intended to furnish compensation for loss of earning capacity. Without such loss there is no provision for compensation in the section, although even permanent physical injury may have been suffered, and the burden is upon a petitioner to show this loss, and, with reasonable definiteness, its amount. In the present case, it appears that the petitioner, while claiming no general impairment of his health and no disability whatever, except such as arises from the injury to the thumb and finger, has neither done nor attempted to do any work since his injury, either in his former position as foreman or in any other way; and, if it be suggested that the offer of the respondent to re-employ him at the former rate of wages did not necessarily imply permanency of employment, the fact still remains that the petitioner has presented no evidence showing loss of earning capacity or which would enable a court to make an award of compensation for partial incapacity after April 1st."

So, under the Michigan statute, there can be no compensation for permanent injury, where the injured member is not lost, and the workman can do his work as well as ever. Hirschkorn v. Fiege Desk Co. (1915) 184 Mich. 239, 150 N. W. 851, holding that there can be no compensation for the partial permanent injury to an eye, where the claimant concedes that he can do his work as well as before the injury, and that he is receiving the same wages therefor, since the statute makes no provision for anything less than the loss of an eye.

And under the Wisconsin statute, 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 could

be no recovery for permanent disability. International Harvester Co. v. Industrial Commission (1914) 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330, 5 N. C. C. A. 822. The statute provided that the loss in wages for which compensation may be made shall consist of such percentage of the average weekly earnings of the injured 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." In this case, where an operator of a drill press in a factory sustained an injury which materially impaired the sight of one eye, the commission sustained the employer's contention that the claimant was capable of earning as much as before he was injured in the employment in which he was then engaged, but awarded compensation on the theory that employers would be less likely to hire him because of the partial loss of sight in one eye. It was held that an award on the latter ground was not supported by the evidence, and should be set aside.

To a similar effect, that prior to the amendment of the statute in 1915 loss of earning capacity was the test of the right to compensation where there was no actual loss of any member, and that physical injury not diminishing earning capacity did not entitle one to compensation, is Johnstad v. Lake Superior Terminal & Transfer R. Co. (1917) 165 Wis. 499, 162 N. W. 659, citing Northwestern Fuel Fuel Co. V. Industrial Commission (1915) 161 Wis. 450, 152 N. W. 856, Ann. Cas. 1918A, 533. And in the Johnstad Case compensation was denied, since the evidence failed to show a loss of earning capacity, where, after the injury, the employee returned to work at the same wages he had been previously receiving, though in a different line of work, notwithstanding the fact that he had sustained permanent partial disability through the stiffening of a wrist and impaired usefulness of a hand.

But it is to be observed that under the Wisconsin statute the incapacity of the workman is determined with

reference to his ability to do the particular work at which he was engaged at the time of the accident. Thus, it was held in Mellen Lumber Co. v. Industrial Commission (1913) 154 Wis. 114, L.R.A.1916A, 374, 142 N. W. 187, Ann. Cas. 1915B, 997, that one who, by the loss of a thumb and finger on one hand, was disabled from following the particular calling in which he was engaged, was entitled to compensation for total disability, regardless of what he might be able to earn in other occupations.

Under the New York statute by which the compensation to an employee is a prescribed percentage of "the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise," it was held in Jordan v. Decorative Co. (1921) 230 N. Y. 522, 130 N. E. 634, that an employee who sustained such an injury that his capacity for heavy work was impaired, if not destroyed, and thereafter obtained light work in another employment, for which he received the same wages as before the accident, was not entitled to compensation during a period of idleness after he voluntarily left his new work, in the absence of any claim that it was beyond his powers. The court said that his earning capacity was then equal, if the claimant was willing to exert it, to his capacity before the injury, and that he must be held to the use of the powers which he had; that cases such as this, where the award was to be measured by the difference between wages and capacity, were not to be confused with those where the act prescribed a fixed and certain limit irrespective of the tendency of the individual to rise above or fall below it.

And, although the holding on the particular facts was otherwise, the court in Humphreys v. Chevrolet Motor Car Co. (1920) 191 App. Div. 4, 181 N. Y. Supp. 3, stated that if it were true that the claimant continued to work after the accident at the same wages until the work was finished, and then, at his own request, was employed on a different job, at a

less wage, but receiving the full wages of a well man, the award should not stand.

That compensation under the New York statute is based solely on loss of earning power, see also, on facts beyond the scope of the annotation, Jensen v. Southern P. Co. (1915) 215 N. Y. 514, L.R.A.1916A, 403, 109 N. E. 600, Ann. Cas. 1916B, 276, 9 N. C. C. A. 286, reversed on other grounds in (1917) 244 U. S. 205, 61 L. ed. 1086, L.R.A.1918C, 451, 37 Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, 14 N. C. C. A. 597.

Under the Nebraska statute, compensation cannot be awarded for the loss of a toe unless the injury has impaired the earning power of the employee. Epsten v. Hancock-Epsten Co. (1917) 101 Neb. 442, 163 N. W. 767, 15 N. C. C. A. 1067. The court said the statute did not, as was the case in many of the states, make provision specifically for the loss of toes or fingers; and that unless such injury caused the "permanent loss of the use" of the foot or hand, the compensation apparently was to be determined by the "difference between the wages received at the time of the injury and the earning power of the employee thereafter."

II. Effect of training or education after injury.

It was held in Epsten v. HancockEpsten Co. (1917) 101 Neb. 442, 163 N. W. 767, 15 N. C. C. A. 1067, that, under the provision of the statute for compensation for partial disability at the rate of 50 per cent of the “difference between the wages received at the time of the injury and the earning power of the employee thereafter," the fact that the employee earned higher wages after than before the injury would not deprive him of compensation to which he was entitled, where he received higher wages because he had, by education and training, fitted himself for more remunerative employment. And it was held in this case that an award might be made for impaired earning capacity where there was evidence that the plaintiff was unable to perform the duties of his

former employment in operating a press for an engraving company owing to an injury in such employment which necessitated the amputation of a toe, although after the injury he attended a business college, and, on returning to work for the company, received a higher wage than he was receiving at the time of the injury. The court said that if an employee after his injury receives the same or higher wages than before, ordinarily this would indicate that his earning power had not been impaired; that such evidence, however, would not ordinarily be conclusive, since he might, for various reasons, receive higher wages notwithstanding impairment of his earning power, as, because of a general advance in wages; and that in the present case it was a reasonable inference that the plaintiff received higher wages because he had, by education and training, fitted himself for more remunerative employment.

That the arbitrator, under the English statute, may take into consideration, in case of injury to a minor, the sum which the workman "would probably have been earning" had the injury not occurred, see III. infra.

III. English and Canadian decisions.

English, Canadian, and Scotch cases are cited in support of the general rule under I. supra.

Under the provision of the English Statute of 1897 that, "in fixing the amount of the weekly payment, regard shall be had to the difference between the amount of the average weekly earnings of the workman before the accident and the average amount which he is able to earn after the accident," it has been held in several cases that there was no justification for making an award of compensation where the workman was earning the same wages after the injury as before.

Thus, in Irons v. Davis & Timmins [1899] 2 Q. B. 330, 68 L. J. Q. B. N. S. 673, 80 L. T. N. S. 673, 47 Week. Rep. 616, where a workman lost the top joint of his left thumb, and was consequently incapacitated for work for at

certain period, but subsequently was taken back again into the service of the same master at the same rate of wages as before the accident, upon, however, a different kind of work, the county court judge awarded him compensation for the period during which he was incapacitated for work, and also half a crown a week for life. Upon appeal it was held that there was no evidence justifying the award of half a crown a week for life, and that the weekly payment should be a mere nominal sum. It was said, however, that if in the future the ability of the workman to earn wages was affected by the accident, the county court judge would have power to review the award and to increase the amount of the weekly payment.

And in Pomphrey v. Southwark Press [1901] 1 K. B. 86, 83 L. T. N. S. 468, 70 L. J. Q. B. N. S. 48, 65 J. P. 148, 17 Times L. R. 53, a youth apprenticed to a printer sustained an injury to his right hand which prevented his working as a skilled artisan, and the indenture of apprenticeship was canceled. He obtained, in proceedings under the act, an award of a weekly payment based on his wages for the previous year, and afterwards resumed work for the same employer, as a laborer, at weekly wages higher than his wages at the time of the accident, but less than those that would be ordinarily paid to a workman employed on the same class of work, since the injury he had sustained affected his ability to earn full wages. The county court judge dismissed the application by the employers for the review and termination of the weekly payment, on the ground that the workman was earning less, by a sum equal to the amount of the weekly payment awarded, than if he had had the use of his right hand. On appeal it was held that, as the workman at the time of the application was suffering no loss of wages, the employer was entitled to have the weekly payment reviewed; that, on a review of a weekly payment made by award under the act, the test to be applied is the difference between the amount of the average earnings before the acci

dent and the average amount which the workman is able to earn after the accident; that in the absence of evidence of advantages incidental to the employment, and capable of being appraised at a money value, the earnings before the accident must be determined by the wages received; that the county court judge was therefore wrong in refusing to review the weekly payment; but that the weekly pay'ment should be continued at a nominal amount, in order to preserve the right of the applicant to make any further application that might become necessary.

And it was held in Beath v. Ness (1903) 6 Sc. Sess. Cas. 5th series, 168, 41 Scot. L. R. 113, 11 Scot. L. T. 455, that a workman is not entitled to payment for a time during which he was earning full wages.

In Webster v. Harrison, T. & Co. (1920) 89 L. J. K. B. N. S. 1077, 13 B. W. C. C. 195, 150 L. T. Jo. 5, compensation was denied for partial disability, although a declaration of liability was granted on the ground that it was reasonably probable that incapacity might at some future time ensue, where a skilled printer was able, after the accident, to work only as an ordinary printer, but, owing to the increase of wages, his average weekly earnings in the latter capacity exceeded those which he had received prior to the injury.

And in William Baird & Co. v. M'Whinnie [1908] S. C. 440, 45 Scot. L. R. 338, 1 B. W. C. C. 109, it was held that a charge against the employers would be suspended where the workman, who had returned to work, refused the tender by the employers of the difference between what he earned after he returned and what he had earned for a like period before his injury.

And if there is a practical admission on the part of the workman that the incapacity has ceased, he cannot claim compensation in respect of incapacity. Nimms & Co. v. Fisher [1907] S. C. 890, where the servant had returned to work, and earned at first wages lower than those received before the injury, but afterwards somewhat more than those wages.

But, on the other hand, it has been held that if an actual diminution of his wage-earning capacity is established, the fact that at the date of his claim he was earning the same wages as he had earned before the accident does not, of itself, show that he is not entitled to compensation; since the arbitrator may consider the probability that, if the injuries had not been sustained, the man might be making more money. Freeland v. Macfarlane (1900) 2 Sc. Sess. Cas. 5th series, 832, 37 Scot. L. R. 599, 7 Scot. L. T. 456.

And it was held in Fraser v. Great North of Scotland R. Co. (1901) 3 Sc. Sess. Cas. 5th series, 908, 38 Scot. L. R. 653, 9 Scot. L. T. 96, that the employee's right to compensation is not necessarily forfeited because he refuses to accept an offer of his employer to give him work at wages equal to his former earnings.

So, in Jackson v. Hunslet Engine Co. (1915) 84 L. J. K. B. N. S. 1361, 8 B. W. C. C. 584, 113 L. T. N. S. 630, 10 N. C. C. A. 1081, where the accident caused the loss of the employee's eye, but his employers offered to take him back at his old work at his former wages, it was held that the county court judge misdirected himself where he considered that the fact that the applicant, who had been employed as a "steam hammer man," was physically able to do the work he had previously been doing, was conclusive to show that he had suffered no loss of

wage-earning capacity. A later appeal is reported in [1916] 2 K. B. 8, 85 L. J. K. B. N. S. 1213, [1916] W. C. & Ins. Rep. 183, 114 L. T. N. S. 584, 60 Sol. Jo. 386, 9 B. W. C. C. 269, to the effect that under the English act the mere fact that a workman is physically able to do his old work does not prove that such work is a "suitable employment" for him.

And in accord with the doctrine that a workman is not necessarily precluded from any compensation because he is being paid the same or even higher wages than before the injury is Pearson v. Archibald Russell (1916) 53 Scot. L. R. 377. In this case Lord Johnston said: "Although I am not sure that there is any def

inite decision to that effect, I think that it is the law that where the employer offers to take back a man at wages which he is not able to earn, that is an offer which the workman may reject, in respect that it would be partly an offer of wages for work done and partly of charity, and that the acceptance might affect his future position under the statute."

Also in Larivière V. Girouard (1915) Rap. Jud. Quebec 24 B. R. 154, 24 D. L. R. 532, it was held that the fact that when he recovered from his injury the workman earned for some time as much as he formerly earned could not be considered as decisive in fixing his earnings. In this case, where the employee lost an eye, it was said: "The amount of the compensation payable, though dependent upon 'incapacity,' varies in proportion to the extent to which 'wages' are reduced by the accident. Incapacity means incapacity to earn, and is consequently a thing different from disfigurement. If the respondent's earning capacity at present is as great as it was before the accident, no compensation is payable. In other words, if his incapacity has come to an end, his right to compensation no longer exists, because it is measured by 'a rent equal to half the sum by which his wages have been reduced in consequence of the accident'; . . . The respondent's work has been intermittent. It is true that, in one or two instances since the date of the accident, his rate of earnings has been greater than his average rate of earnings before the injury. That, however, is not conclusive. It is

fallacious to reason, as does the respondent, that the loss of an eye means a permanent partial loss of earning capacity. It may or it may not mean that. It is a question of fact to be decided in each case, and it is a mistake for the court to give effect to generalizations made by phy sicians or statisticians, such as have been put forward in this case, to the effect that the loss of an eye is a loss of from 20 to 40 per cent of earning capacity."

And the fact that after the accident the workman returned to work for his

former employer at the same wages was held in Peterson v. Garth Co. (1913) Rap. Jud. Quebec 24 B. R. 165, not conclusive that his earning capacity had not been diminished, the court stating that this only proved that in the state of the labor market he was able, notwithstanding his injury, to command his old wage. In this case the employee, by the accident, lost the greater part of the middle finger of one hand.

It has been held, however, that under the Quebec act a workman is not entitled to compensation where, after the accident, he voluntarily returned to the employer with the same salary he received before the accident. Cater v. Grand Trunk R. Co. (1912) 18 Rev. de Jur. (Can.) 27, cited in Canadian Dig. 1912, col. 825.

And where parts of several fingers of a workman were amputated by an accident, which caused only a slight incapacity, and did not diminish his salary, compensation as for permanent and partial incapacity was denied in Stack v. Whittal (1915) Rap. Jud. Quebec 48 C. S. 272, under a statute granting, in case of such incapacity, a rent equal to half the sum by which the wages have been reduced in consequence of the accident.

That there must be impaired earning capacity to justify an award of compensation for partial disability is assumed, apparently, in such cases as Harrison v. Matthews (1920) 13 B. W. C. C. 109, where a slate sawyer met with an accident which resulted in the loss of a little finger; and, in view of evidence that his earning capacity had not been impaired, continuance of compensation was refused. The question, it was said, was not whether one was able to earn the same wages in a particular employment, but whether his earning capacity in the general labor market was depreciated.

The same observation may be made with respect to Jones v. Anderson [1914] W. N. 432, 84 L. J. P. C. N. S. 47, [1915] W. C. & Ins. Rep. 151, 112 L. T. N. S. 225, 59 Sol. Jo. 159, 31 Times L. R. 76, 8 B. W. C. C. 2, where compensation was discontinued because the employee, a miner who had