This is аn appeal from a decree of the workmen’s compensation commission denying and dismissing the employee’s original petitiоn for total disability compensation and for an “Acknowledgement of acceptance of liability on employer’s behalf, by Employers Mutual of Wassau, as Workmens Comp. Liability Carrier.”
The material facts are not in dispute. On November 20, 1960 petitioner, a foreman whose weekly salary was $159 and who had been in respondent’s employ for thirty-two years, sustained a compensable injury which totally incapacitated him from engaging in any work from the date of his injury until early in January 1961 when he resumed his regular duties. The respondent paid petitioner his rеgular salary during that period of disability and in addition paid his hospital and medical expenses. While hospitalized his statement was taken by an adjuster employed by respond *450 ent’s insurer who advised him that compensation benefits would not be paid because he was “on salаry with the company * * No claim for disability benefits was made until the filing of this petition on September 8, 1964 only a few weeks following the termination of petitioner’s employment with respondent.
There is neither direct evidence nor any finding by the commission relating to the reasons which motivated respondent to continue petitioner on the payroll for the duration of his incapacity. In these circumstances аnd in order not to deny the parties the benefits of any reasonable inference which may naturally and logically arise from the undisputed testimony, we have examined the record with a view to ascertaining what probabilities may reasonably flow from the undisputed facts, Stiness v. Brennan, 51 R. I. 284, Valente v. Bourne Mills, 77 R. I. 274, and we conclude that respondent intended the wage payments as a gratuity in recognition and appreciation of thirty-two years of continuous service by a key employee. Having drawn the inference, it has the same effect and is as much in the case as if it had been established by testimonial evidence. Venlente v. Bourne Mills, supra.
We come now to the question of whether a grateful employer’s payment of regular weekly wages to an employee during his incapacity for work bars recovery of weekly disability benefits.
The answer lies in how we construe the term “earning capacity” as used in the rule first adopted in
Weber
v.
American Silk Spinning Co.,
38 R. I. 309, and ever since consistently followed. Under the
Weber
rule compensаtion is awarded only for injuries resulting in a loss or an impairment of earning capacity. The statement of the rule, however, does not assist in determining what we mean by earning capacity. Professor Larson says it is a “theoretical concept.” 2 Larson, Workmen’s Compensation Law, §57.20,
*451
p. 4. Definitionally, it connotes an ability or a power to earn rather than wages actually received,
United Engineering Co.
v.
Pillsbury,
. Within these concepts of what constitutes earning capacity it is our judgment -that an employee concededly so disabled as to be unablе to engage in any gainful employment has neither an ability nor a power to earn. His right to weekly disability benefits should not be denied becаuse he is employed by a sympathetic employer who continues to pay his salary, not with the intention that the payments be in lieu of сompensation but intending them as a voluntary gesture of gratitude for past services rendered. 2 Larson,
supra,
§57.34, p. 16;
Allen
v.
Industrial Commission,
We turn now to the question of whether petitioner’s claim, filed almost four years after he first became entitled to compensatiоn, is barred because it was not filed within the two-year limitation period prescribed by G. L. 1956, §28-35-57, as amended. He says that he relied, his disadvan *452 tage, оn the representation of the adjuster that he could not receive both compensation and his regular wages for the same period of disability and, citing Shea v. Gamco, Inc., 81 R. I. 12, contends that this conduct estops respondent from urging the bar of the statute as a defense to his petition.
In Shea we held that the employer was estopped to claim the bar of the statute because the employee had refrained from filing a petition within the statutory period in reliance on the insurer’s repeated assurances that she would be told either that her claim would be settled or that she should commence adversary proceedings for its adjudication.
The fact situation here, however, is substаntially different. The adjuster who visited petitioner at the hospital with compensation check in hand told him that he could not receivе both compensation payments and regular wages. That statement, rather than constituting a Shea type of assurance, was instead and in substаnce a denial of liability. It neither reasonably misled nor lulled petitioner into believing that it would be unnecessary for him to file a claim in оrder to receive compensation benefits nor did it violate the standards of fair dealing and cooperation between еmployer and employee to which we referred in Shea. 12 Schneider, Workmen’s Compensation (perm, ed.), §2376, p. 47. Were we to equate it with the kind of conduct which in law will estop an employer from claiming the benefit of the statute, we would be nullifying by judicial declaration a legislative directive which makes the filing of a petition within a prescribed time an express condition of the right to recover compensation. See Kenyon v. United Electric Rys., 51 R. I. 90; Torek v. Butler, 50 R. I. 347.
The petitioner argues further, however, that his failure to make timely application for benefits should be excused bеcause respondent voluntarily provided him with medical services and continued him on the payroll during his in *453 capacity. Those acts, еven were we to follow the minority rule under which conduct of that kind will excuse a late filing, would merely toll the limitations period. 2 Larson, supra, §78.43 (c), p. 272; 12 Schneider, supra, §2362, p. 26. Thе record -before us, however, does not disclose that any payment was made -or service rendered within two- years- of the time of the filing of the. petitioner’s claim and for that reason the -question of whether the statute should be tolled is no-t before us. .
The petitioner’s appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to- the workmen’s -compensation commission for further proceedings.