Opinion
Decided June 4, 1935.
Loss of earning capacity is the basis for compensation under the workmen's compensation act (P. L., c. 178) and only to the extent that such loss is due to physical injury. Hence what a servant earns on returning to work after his injury is not the extent of his earning capacity if his wages are then lower because of business conditions; but such wages are only one of the evidentiary facts to be considered in determining earning capacity. As the amount actually earned after an injury may or may not represent earning capacity an award reached by considering nothing but the difference between the higher wages paid the employee before an injury and the wages paid him thereafter is erroneous. Likewise erroneous is the computation of such loss by the difference between his prior wages and what he would have earned but for lack of work and low wages due to general business conditions. What compensation should be paid during enforced idleness after injury depends upon the cause of the idleness. If due solely to business conditions there is no loss of earning capacity established. Otherwise if such idleness be due in whole or in part to the injury; and if due to both causes the effect of each must be determined and only the loss of work due to the injury is compensable. Determination of earning capacity requires the weighing of conflicting testimony and the exercise of judicial discretion, within the statutory limits, by the superior court; and that question cannot be transferred to the supreme court.
PETITION, for compensation under P.L., c. 178. Trial by the court.
On January 11, 1932, the plaintiff, while employed by the defendant, was severely burned by molten metal. It was admitted that from that date until August 17, he was totally disabled, and that he has received compensation therefor at the rate of one half his former average weekly wage of $23.50 per week. On August 17, he returned to work for his former employer but at a different kind of work for which he received $16 per week. This difference in pay was due to the fact that during his disability the defendant's other employees had voluntarily accepted a 10% wage cut and that the weekly hours of work had been reduced because of lack of orders.
On November 3, 1932, the plaintiff was told that there was no more work for him and that his services were no longer required. For the following year he made diligent efforts to find employment but was unsuccessful until November 4, 1933, when he obtained work at $12 per week. His inability to find work between November 3, 1932, and November 4, 1933, was "found to be due to a combination of his disability and a lack of work he could do, the latter due to the depression."
The court made no finding of loss of earning capacity but submitted two alternative computations, one based solely upon the difference between his prior wage and his actual wages after injury, the other upon his prior wage and what would have been his wages after injury had it not been for the pay-cut and lack of work due to general business conditions.
Burque, J., allowed the defendant's bill of exceptions and transferred the question "as to what the petitioner is entitled to recover."
Ivory C. Eaton, by brief and orally, for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Wadleigh orally), for the defendant.
The workmen's compensation act is designed to afford compensation for loss of earning capacity due to physical injury. It is not designed to afford compensation for loss of earning capacity due to any other cause. For this reason "loss of earning capacity due to general business conditions cannot be made the basis of compensation." Plourde v. Auclair, 86 N.H. 303, 304. See also Cote v. Company, 85 N.H. 444, 447.
The court found that the plaintiff's loss in pay after his return to work was not due to his injury, but to a general pay-cut and to a reduction in hours of work; in other words, that his loss in actual earnings after injury was not a consequence of the accident, but of general business conditions. Therefore, for the purpose of determining the amount of compensation to which he is entitled, it must be considered as if he had returned to work at the same wage he had received prior to injury. It does not follow from this, however, that, as a matter of law, he is entitled to no compensation after August 17, 1932. 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. "His ability to earn, rather than his actual earnings, should be used to measure the value of his working capacity after injury." Gagne v. Company, ante, 163.
If his wages after injury reflected his actual earning capacity as an injured man, then he is not entitled to compensation after his return to work. If, on the other hand, although able to earn as high wages as formerly, his injury prevented him from obtaining permanent employment such as he had formerly enjoyed, then such wages do not reflect his true earning capacity. Similarly, if he was, for any reason, either over or under-paid after his return to work, then his wages would not show actual earning capacity.
Similar considerations apply in determining whether or not he is entitled to compensation for the year of enforced idleness from November 3, 1932, to November 4, 1933. In so far as his lack of employment during that time was due to his injury, he is entitled to compensation. In so far as it was due to general business conditions, he is not. The finding that his idleness during this period was due to a combination of his injury and general business conditions indicates that it was not due solely to his injury and so that he was not, during that time, totally disabled thereby. How much his idleness was due to injury and how much to business conditions must be determined and compensation given only for such idleness as was due to disability.
Again, his present pay of $12 per week may or may not show actual earning capacity. If it truly reflects what he is able to earn it is to be used as the basis for calculation. If it does not, that is, if he is earning less than he might or more than his services are worth, then it is not the true basis for computation.
Both the alternative awards are incorrect because in neither of them has account been taken of anything but the purely arithmetical aspects of the case. Earning capacity, not necessarily actual earnings, after injury is to be contrasted with actual earnings prior thereto. Arithmetic is an aid to determine earning capacity, but the court, in awarding compensation, must not look to arithmetic alone. A determination of earning capacity requires the weighing of conflicting testimony, and, within the limits established by the statute, the exercise of judicial discretion. This presents a question for the superior court, not one which can be transferred to this court. Ricard v. Insurance Co., ante 31; Nawn v. Railroad, 77 N.H. 299.
The evidence in regard to the probable duration of the disability is far from clear but this inadequacy of proof can be corrected at the next trial. The other questions argued are not likely to arise again and so do not need to be considered.
New trial.
All concurred.