129 A. 168 | Vt. | 1925
This is an appeal by the defendants in a compensation case. The plaintiff, a resident of Bennington, suffered an accident on April 9, 1921, for which he was entitled to compensation under the Workmen's Compensation Act. A memorandum of agreement respecting compensation, signed by the plaintiff and the insurance company, was filed with and approved by the commissioner of industries in accordance with the Act. G.L. 5801. Among other things the agreement provided for payment of $12.50 per week from April 16, 1921, during the period of total disability. In April, 1924, the parties were in disagreement respecting the extent of plaintiff's disability, and application for a hearing on that question was made to the commissioner August 1, 1924. A hearing was held thereon, resulting in an order for the payment of compensation as for total disability to the date of the hearing and thereafter at the same rate until further order, or until the parties should agree that total disability resulting from plaintiff's injury had ceased. The defendants have appealed to this Court from the commissioner's decision, pursuant to G.L. 5808.
Plaintiff's injury is described in the compensation agreement as a "strained knee." The commissioner in making his award set forth the following facts: At some time subsequent to the injury osteomyelitis developed in the injured leg which the medical evidence indicated was directly due to the injury. Seven or eight operations have been performed on the leg for the removal of decayed bone, and further operations for such purpose are probable. Up to the time of the hearing the plaintiff had been going to Troy weekly for surgical treatment. He was then weak and sick and able to get about with difficulty. His general health had been considerably impaired by the long period of suffering from the diseased condition of the bone. In walking he was obliged to hold his foot in an abnormal position, and as a result had developed a condition for which medical treatment had been necessary. Medical evidence indicated that at no time since his injury had his condition been such that he was able to perform any physical labor, and that any attempts to do so were unwise and contrary to the advice of doctors. Commencing about September 1, 1923, the plaintiff had, whenever able, spent his time at a local cigar store and waited on trade and assisted the proprietor so far as he was able. Many days he was not able to go to the store at all, estimated about three *517 months in all since the practice commenced. Each week the proprietor, who was a friend of the plaintiff, paid him what he considered his services worth, the average being, according to the plaintiff's estimate, about seven dollars per week. The defendants contended that because of these activities the plaintiff was entitled only to compensation on a partial disability basis. However, the commissioner found that the plaintiff was totally disabled continuously from the date of his injury until the date of the hearing, and that such total disability was likely to continue for a considerable time in the future.
In substance, the only question for review is whether, in the circumstances shown, plaintiff's activities as assistant in the cigar store rendered his disability partial only within the meaning of the Workmen's Compensation Act (Chapter 241 of the General Laws). No question is made about plaintiff's condition prior to September 1, 1923. To that date it was unquestionably that of total disability in contemplation of the Act. G.L. 5785. The defendants do not question the commissioner's findings of fact, as of course they could not on an appeal to this Court, except for lack of supporting evidence. Kelley's Dependants,
Our Workmen's Compensation Act, adopted in 1915, is modeled after the act approved by the Commissioners on Uniform State Laws in 1914. The Act requires that its provisions shall be so interpreted and construed as to effect its general purpose to make uniform the law of those states which enact it. G.L. 5831. We are thus constrained to examine the decisions of other jurisdictions with this object in view.
Practically all the states have adopted workmen's compensation acts. While not entirely uniform, they are essentially the same in many of their provisions. This is true of the sections relating to compensation for total and partial disability, *518
the subject-matter of this inquiry. The term "incapacity for work," appearing in practically all workmen's compensation statutes, has come to have a well-settled meaning. It means loss of earning power as a workman in consequence of the injury, whether the loss manifests itself in inability to perform such work as may be obtainable or inability to secure work to do. 1 Honnold's Work. Com., p. 599. It may mean physical inability to do work so as to earn wages, or it may mean inability to earn wages by reason of inability to get employment. Ray v.Frenchmen's Bay Packing Co.,
It has been said that a man is physically able to work, as far as his right to compensation under the Workmen's Compensation Act is concerned, when he can do so without endangering life or health (Perkinson v. Industrial Com.,
The Texas court has stated the rule thus: Total incapacity for work does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is ordinarily regarded as totally incapacitated. HomeLife Acci. Co. v. Corsey (Tex. Civ. App.),
The principle running through the cases is quite clearly stated in Austin Bros. Bridge Co. v. Whitmire,
This is the doctrine of the English cases. The expression "incapacity for work" was evidently taken from the English Workmen's Compensation Act of 1906; accordingly the decisions of the English Courts defining the meaning of these words before the adoption of our Act are of weight. Bosquet v. Howe Scale Co.,
Stated broadly, the Act undoubtedly intends that the higher rate of compensation shall be adopted when the workman is not able to earn wages, and that where he does earn or is able to earn wages in a suitable employment credit is to be allowed for this sum to the extent specified. To the extent that the power to earn something is retained or has returned the workman does not incur the particular kind of loss for which compensation *520
is to be made. See Ball v. W. Hunt Sons, Ltd., supra. The defendants rely upon this and similar general statements to be found in some of the cases. Their argument is that a workman cannot be totally disabled for work when he can get employment and perform the duties thereof. The weakness of the argument is that it gives conclusive effect to the single circumstance that the workman performs some service for pay and wholly disregards the question of the fitness of the service to his impaired condition and his capacity to perform the same. "Total disability for work" is necessarily a relative term depending in a measure upon the character of the available occupation and the capabilities of the workman. Ordinarily it is a question of fact depending largely upon the circumstances of the particular case.Clarke v. Travelers Ins. Co.,
We think it clear on principle, and on the authority of the cases as well, that it cannot be held as matter of law the commissioner erred in finding the plaintiff totally disabled for work during the time in question. The precise question has received attention in other jurisdictions. It has been held that a finding of total incapacity for work may be sustained, although the servant has been able to obtain some employment. Hanley v.Union Stockyards Co.,
The circumstances of the instant case are even stronger for the plaintiff. There was no evidence of improvement in his physical condition — his capacity for work — but the contrary was fairly indicated. The evidence was that he had not been able to perform any physical labor since his injury and that his attempts to do so were unwise. If so, the service performed was not such as the law would require of him. The fact that it was physically possible for him to do the little work the case shows he did, when to do so was an indiscretion or error of judgment, would not conclude him from claiming that he was totally disabled for work.Clarke v. Travelers Ins. Co., supra. Besides, the nature of the service rendered and the gratuitous character of the pay received therefor would imply that the plaintiff was not capable of performing the service in such a way as to enable him to procure and retain the employment otherwise than as a matter of grace through friendship; that is to say, it could fairly be inferred that it was friendly consideration rather than ability to perform the service satisfactorily that enabled him to eke out the scanty income which the compensation for total disability afforded him. The facts found, together with the inference which may properly be drawn therefrom (Gates v. A.G. Dewey Co.,
The award is affirmed with costs. Let the result be certifiedto the Commissioner of Industries.
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