Opinion
No. 4265.
Argued December 2, 1953.
Decided December 31, 1953.
Disability of a workman resulting from an injury sustained in the course of his employment is not compensable under the Workmen's Compensation Law (Laws 1947, c. 266, s. 23) unless it produces a loss in his earning capacity. Hence, where a claimant's wages after injury reflect his actual earning capacity as an injured man and show no loss in his ability to earn as compared with his average wage before injury he is not entitled to workmen's compensation (Laws 1947, c. 266, s. 23) although in the medical sense he has a disability resulting from injuries sustained in the course of his employment. The amount of compensation to which a claimant is entitled for partial disability (Ib., s. 23) is the difference between his average wage before the injury and the average weekly wage which he is able to earn thereafter with his injury in suitable work under normal employment conditions. The determination is made without consideration of his present ability to perform the type of work he was engaged in at the time of his injury nor what he could have earned in that trade but for the injury. In determining the actual earning capacity of a workman since sustaining his injury it was proper for the Trial Court to consider the degree of permanency of his present employment.
PETITION, for workmen's compensation against an employer and its insurer, brought under the provisions of R. L., c. 216, as amended by Laws 1947, c. 266.
On October 19, 1948, while employed by Dionne Bros. as an apprentice carpet layer, the plaintiff hurt his leg at the knee while using a knee kicker. As a result he was out of work one week in 1948 and two weeks in the fall of 1950 prior to December 18, when he underwent an operation for the removal of a ruptured disc in the lower part of his spine and a fusion thereof. At a prior hearing reported in 97 N.H. 525 the plaintiff was awarded compensation for his disability up to April 23, 1951. This court ordered a new trial on his claim for partial disability thereafter.
At the time of the accident plaintiff who had been training almost two years to be a floor mechanic, was earning $40 per week for 47 hours. Since his injury he has worked for defendant as an estimator and salesman. He is earning on an average of $58 per week for 49 hours.
On rehearing the Court (Grimes, J.) found "that his wages since April 23, 1951, reflect his earning capacity and that he is employed on his own merits and not out of consideration of sympathy or relationship. No loss of earning capacity is found on the evidence, and it is found he is not entitled to compensation beyond that already received . . . ."
"While it is found that but for the injury the petitioner would probably be a qualified floor mechanic during the period for which he now seeks compensation and would probably have the ability in that capacity to earn more than he has been or will be able to earn with his limitations caused by the injury, it is ruled that he is not entitled to compensation on this basis."
Plaintiff excepted to the denial of certain of his requests and to the ruling that he is not entitled to compensation in spite of the finding that but for his injury he probably would be a qualified floor mechanic and able to earn more in that capacity than he will with his resulting limitations. His bill of exceptions was allowed and transferred.
Robert E. Earley and Charles J. Flynn (Mr. Flynn orally), for the plaintiff.
Sullivan Gregg and Joseph M. Kerrigan (Mr. Kerrigan orally), for the defendants.
"The right of a claimant to recover workmen's compensation does not rest at all upon the common law, but upon the statutes alone, which both create and measure the right . . . The act creates new remedies and new liabilities. The manner in which it operates is to be found under the legislation itself." Bolduc v. Company, 96 N.H. 235, 239. Section 23 of R. L., c. 216, as amended by Laws 1947, c. 266, provides that compensation for partial disability shall be "a weekly compensation equal to sixty-six and two-thirds percent of the difference between his average weekly wage before the injury and the average weekly wage he is able to earn thereafter."
The distinctive feature of the compensation system by contrast with tort liability is that its awards (apart from medical benefits) are made not for physical injury as such, but for disability produced by such injury. 2 Larson's, Workmen's Compensation Law 2. Compensable disability under the act consists in loss of earning capacity due to injury. Peak v. Company, 87 N.H. 350, 352. Disability in the medical sense such as inability to make the necessary muscular movements and exertions which result as in this case from a fusion of the spine is not compensable under section 23 unless it produces a loss in earning capacity. Larson's supra. "It is well settled that our compensation act is intended primarily to afford limited compensation . . . to the injured employee for his loss of earning capacity." Carbonneau v. Company, 97 N.H. 438, 441; Desrosiers v. Company, 97 N.H. 525, 530.
Earning capacity, not necessarily actual earnings, after injury is to be contrasted with actual earnings prior thereto. If claimant's wages after injury reflect his actual earning capacity as an injured man and they show no loss in his capacity to earn as compared with his average wage before injury then he is not entitled to compensation under section 23 after his return to work. Peak v. Company, supra; Gagne v. Company, 87 N.H. 163; Carbonneau v. Company, supra; Desrosiers v. Company, supra. Actual wages earned after injury are but one of the evidentiary facts to be considered with such others as may be material in arriving at the operative fact of loss of earning capacity. The Trial Court has found on the evidence that "his wages since April 23, 1951, reflect his earning capacity and that he is employed on his own merits and not out of consideration of sympathy or relationship. loss of earning capacity is found on the evidence, and it is found he is not entitled to compensation beyond that already received." There being evidence to support the above finding of the Trial Court that the plaintiff incurred no loss of earning capacity as a result of his injury it must be accepted as true. Newell v. Moreau, 94 N.H. 439, 440. Consequently he is not entitled to compensation. Desrosiers v. Company, supra.
This conclusion is legally justified even though the Trial Court also found "that but for the injury the petitioner would probably be a qualified floor mechanic . . . and would probably have the ability in that capacity to earn more than he has been or will be able to earn with his limitations caused by the injury." In some jurisdictions earning capacity refers only to the employee's capacity to earn in the employment or trade in which he was working at the time of the accident so that for compensation purposes the earning capacity remaining to him in other callings is not considered. Anderson v. Whitaker, (Ky.) 247 S.W.2d 980; See anno. 149 A.L.R. 413, 415. Section 23 of our act imposes no such limitations nor has it been so interpreted. Desrosiers v. Company, supra.
The test of compensable disability under our statute is not the employee's ability or disability because of his injury to do his old job. Nor is it what the claimant could have earned but for his injury in the employment or trade in which he was working at the time of the accident. 2 Larson's, Workmen's Compensation Law 7; Clark v. Henry Wright Mfg. Co., 136 Conn. 514, 517; see Colby v. Varney, 98 N.H. 99, 102. It is the difference between "his average weekly wage before the injury and the average weekly wage which he is able to earn thereafter" (emphasis supplied) with his injury in suitable work under normal employment conditions. Laws 1947, c. 266, s. 23; Gagne v. Company, supra; Peak v. Company, supra; Carignan v. Company, 95 N.H. 333, 336; 2 Larson's, Workmen's Compensation Law 6; Shaffer v. Midland Empire Packing Co., (Mont.) 259 P.2d 340.
In order to properly evaluate post-injury earnings and arrive at a determination of whether or not they represent actual earning capacity certain factors have to be considered such as longer hours, sympathy and the temporary and unpredictable character of those earnings. Peak v. Company, supra. It was therefore proper for the Trial Court to consider the degree of permanency associated with plaintiff's employment. The Court's finding that "the petitioner's present employment is of no more uncertain duration than any ordinary employment" was proper and supported by the evidence.
Exceptions overruled.
KENISON, C.J., was absent: the others concurred.