247 Mass. 157 | Mass. | 1923
The employee on February 14, 1920, fractured his right patella in the course of, and arising out of his employment by the subscriber the Taunton Hotel- Com-pony, hereafter referred to as the employer, and “ the insurer entered into an agreement to pay him $16 a week for total incapacity for work, based on an average weekly wage of $28, and compensation was paid in accordance with this agreement up to and through January 21,1922. Since that date the insurer paid the employee $4 for the week ending April 1, and $4 each for the week ending April 29, May 6, 13, 20, 27, June 3, and June 10.” The record states that the question for decision was the employee’s “ incapacity since January 21, 1922.”
In substance the employee testified that he received no money from the employer while he was out of work, although “ after the insurance company stopped paying,” quite often “ the hotel gave him $8 to help him out . . . because he had a big family.” In reply to questions by the board member he said that “ he was back there working some of the time,” and notified the insurance company he had “ gone to work,” but could not tell the date when he resumed work or of the notice, and that the insurer subsequently paid him $4 for two weeks only, when the payments ceased. The evidence of the employer’s treasurer, a witness called by the insurer, shows, however, that on January 21, 1922, he was engaged in such work as he was able to perform, receiving $24 a week, except that on April 1 and April 4 the payments were $20, to which the payments for those weeks by the insurer of $4 for each week afforded a weekly revenue of $24. It is
The statute awards compensation for loss of earning capacity caused by the injury as compared with the employee’s average weekly wage received by him before the injury, and, the findings having been supported by the board member’s view of the evidence, and of the credibility of the witnesses, we cannot say as matter of law that they are erroneous. Diaz’s Case, 217 Mass. 36. It follows from these findings and the findings of continuing partial incapacity that the employee is entitled to compensation, the amount of which was to be determined. Donnelly’s Case, 243 Mass. 371. Johnson’s Case, 242 Mass. 489.
The insurer contends that there is reversible error in the further findings fixing the employee’s earning capacity at $16, and that “ he still is limited to that amount.” It could be found on all the evidence that while the employer gave the employee $24 a week for many weeks, $8 of the amount was a gratuity, apparently leaving his earning capacity at
It is also contended that even if the claimant finally prevails, the insurer should be credited with alleged overpayments from September 12, 1921, to January 1, 1922, as well as the payments for eight weeks allowed by the board member. But on the employee’s evidence it could be found there were no overpayments. The inquiry moreover was limited to a period which did not include payments made prior to January 21, 1922.
While error appears for the reasons stated, and the decree must be reversed, the case is recommitted to the Industrial Accident Board for further proceedings not inconsistent with this opinion. Doherty’s Case, 222 Mass. 98. Fierro’s Case, 223 Mass. 378. Comerford’s Case, 224 Mass. 571.
Ordered accordingly.