Hill v. DU BOSE
67 S.E.2d 371
N.C.
1951
Check Treatment
DeviN, C. J.

It is apparent from an examination of the'findings and award of the Industrial Commission, which were in all respects affirmed by the court below, that the award of compensation now made was based upon a finding as to the amount the claimant had earned since the date on which total permanent disability had ceased, rather than upon his capacity or ability to earn.

The statute, G-.S. 97-2 (i), defines disability as meaning “incapacity because of injury to earn the wages the employee was receiving at the time of injury in the same or any other employment.” The rule of compensation for partial disability prescribed by G.S. 97-30 is that the employer shall pay “to the injured employee during such disability, a weekly compensation equal to 60 per centum of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter.”

In Dail v. Kellex Corp., 233 N.C. 446, 64 S.E. 2d 438, it was said: “The disability of an employee because of an injury is to be measured by his capacity or incapacity to earn the wages he was receiving at the time of the injury. Branham v. Panel Co., 223 N.C. 233, 25 S.E. 2d 865; Anderson v. Motor Co., ante, p. 372 (233 N.C. 372, 64 S.E. 2d 265). Loss of earning capacity is the criterion.” Compensation must be based upon loss of wage-earning power rather than the amount actually re *448 ceived. It was intended by tbe statute to provide compensation only for loss of earning capacity. Hence, tbe finding tbat claimant bad earned $7 per week for tbe périod from 25 November, 1949, to 18 July, 1950, was not tbe proper basis for determining tbe award under tbe statute.

Tbe appellee concedes tbat in accord with tbe decision in Dail v. Kellex Corp., supra, tbe award of tbe Commission should be modified by eliminating tbe requirement tbat tbe case be beld open for 300 weeks.

While in other respects tbe findings of tbe Industrial Commission were supported by tbe evidence, we think in tbe particulars pointed out there was error in affirming tbe conclusions and award of tbe Commission, and accordingly tbe case is remanded to tbe end tbat sufficient findings, and proper conclusions and award thereon may be made by tbe Industrial Commission as tbe basis for judgment.

Error and remanded.