receives an injury resulting in temporary disability, and who enters other employment before he has fully recovered at a wage equal to or greater than he was receiving at the time of his injury, is not entitled to compensation after engaging in the latter employment, even though he was not at that time able to resume the employment in which he was engaged at the time of his injury.21 But it must not be assumed that an injured employé will remain in the same employment always, and if by reason of permanent injury or disfigurement he is handicapped in seeking other employment, or exercising his physical powers to the utmost, compensation should be awarded for this loss of earning capacity.22 Award

man might, by the exercise of reasonable diligence, be able to do. Consequently, when nature has remedied the injuries as far as it can, and whatever remains to make the cure complete is to be supplied by the applicant himself in going to work and giving his limbs the use which alone would effect his complete restoration, compensation should be discontinued. Kid v. New York Motion Picture Co., 1 Cal. I. A. C. Dec. 475. Where an employé has sustained an injury, such as a fracture, which has healed as far as nature can repair the damage without the hearty co-operation of the injured party in getting the member back into use, the employé is not entitled to further compensation because of stiffness and pain in using it. The law does not contemplate compensation for mere pain and inconvenience, but only for disability to labor. Wolff v. Levison & Zellerbach, 1 Cal. I. A. C. Dec. 347. The California Commission regards "disability," within the meaning of the Act, as referring to inability to earn, and no form of temporary disability is compensable under the Act, except and in so far as it involves inability to earn. Every injured employé is expected to make every effort to earn a living, either at the old or a new occupation. Larnhart v. Rice-Landswick Co., 1 Cal. I. A. C. Dec. 557. Where, as often happens in the healing of a broken rib, a nerve is caught in the callous thrown around the fracture, and the injured person feels pain whenever it is moved or touched, but the pain is not aggravated nor his physical condition harmed in any way by working at his occupation, and the condition of the nerve would be relieved sooner by resuming work and forgetting about it, such condition, though painful, does not constitute disability, and no compensation will be awarded during its continuance after the rib has knit together sufliciently to allow his return to work. Semi v. Rolandi, 1 Cal. I. A. C. Dec. 184.

21 In re David Burns, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 5.

22 Greenock v. Drake, 2 Cal. I. A. C. Dec. 379.

must be made with reference to the effect of the injury upon the power to secure employment in the open market.28 Where the injury is incurable, the temporary increase or decrease in earnings need not be considered. This is so, even where the injured employé continues to earn his wages following the accident in an amount equal to or in excess of his former earnings.24

The Massachusetts Act provides that the Massachusetts Employés' Insurance Association shall pay to the injured employé, where the injury is partial, “a weekly compensation equal to onehalf the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than $10 a week; and in no case shall the

23 A dismemberment of the body, although slight, and although the injured person has returned to his employment at his former wages, creates a partial disability; it causes an inability to compete with other men in obtaining employment, and, in the average man, results in a lower earning power. Bassett v. Thomson Graf Edler Co., 1 Cal. I. A. C. Dec. 60. The loss of the forefinger of the left hand affects a carpenter and cabinet maker very differently from a sewer digger. The California Commission, in making its permanent disability ratings, cannot take into consideration the fact that the present employer of the applicant may always retain him in its employment. Ratings and awards must be made with reference to the effect of the injury upon a man's securing employment in an open labor market. Immel v. American Beet Sugar Co., 2 Cal. I. A. C. Dec. 385. Where the ability to compete is seriously impaired, an award for a total disability indemnity will be made, subject to the condition that, if the employer or insurance carrier shall find and offer to the injured person employment suitable to his physical condition at a fair wage, the injured employé shall be entitled to receive only 65 per cent. of the difference between the wage he was receiving at the time of his injury and the wage which he was offered for doing the light work tendered by the employer or his insurance carrier. Raily v. Island Transportation Co., 2 Cal. I. A. C. Dec. 608.

The mere fact that an employer gives an employé employment after an injury is not binding or conclusive as to the character of the earning capacity of the employé. Waters v. Kewanee Boiler Co., Bulletin No. 1, Ill., p. 169.

24 Greenock v. Drake, 2 Cal. I. A. C. Dec. 379.

period covered by such compensation be greater than 300 weeks from the date of the injury." 25 In determining the compensation payable under this provision, no deduction should be made from the employe's average weekly wages earned prior to the injury because of subsequent business depression, but the award should be based on the difference between the wages which he actually earned prior to the injury and the wages which he is able to earn subsequent thereto.20 The compensation given is not properly considered as a payment of wages. The quantum of compensation is measured by the amount of wages; but the payment is in place of all the rights of action that belonged to the injured employé and covers suffering as well as loss of wages.27

§ 150. Computation of earnings in general

In computing the average earnings for a particular period, microscopical accuracy is not required, and indeed is seldom possible. The nature of the employment, its terms, its actual duration, and the personal qualifications of the workman may all be taken into consideration.28 What is to be considered in determining the amount of wages is not the recompense in fact received, but the rate which the contract of hiring fixed, whether that rate was in fact

25 St. 1911, c. 751, pt. 2, § 10.

26 In re Durney, In re Revere Rubber Co., In re American Mut. Liability Insur. Co., 222 Mass. 461, 111 N. E. 166.

27 (St. 1911, c. 751, pt. 2, §§ 3, 11) King v. Viscoloid Co., 219 Mass. 420, 106 N. E. 988.

Where a

28 Barnett v. Port of London Authority (1913) 6 B. W. C. C. 111. man worked odd days before and after pay day, when he began and was leaving the employment, the judge, in computing his average weekly earnings, should have added these odd days together, instead of counting them two full weeks. Turner v. Port of London Authority (1913) 6 B. W. C. C. 23, C. A. In computing the average weekly earnings for a year and a half work, the judge properly refused to consider two periods of four days each when the workman was sick and unable to work. Id.

realized for the whole time or not.29 The amount to be awarded is not to vary according to the employé's age, or the character of his work, or his expectancy of life; the only variance between the cases of different employés is that caused by a difference in wages. earned.30 In the case of concurrent contracts of service—that is, contracts running concurrently in respect to successive and separate employment-the computation of weekly earnings as a basis. of an award is to be made as if all the earnings were earned in the employment of the one who was employer at the time of the injury,31 provided the services are performed in the same occupation.

31

29 In an employment and in a community where the regular working week was six days of ten hours each, and the workman was paid 25 cents an hour, the hourly rate reduced to a weekly rate was $15 a week. (P. L. 1913, p. 313) Smolenski v. Eastern Coal Dock Co., 87 N. J. Law, 26, 93 Atl. 85. Where petitioner had worked only part of a day at the time of his injury, and up to 11 o'clock had earned $1.60, it could be properly found that he was earning $4 per day. Schaeffer v. De Grottola, 85 N. J. Law, 444, 89 Atl. 921.

80 (P. L. 1911, § 2) Bateman Mfg. Co. v. Smith, 85 N. J. Law, 409, 89 Atl. 979. 31 Where a night watchman works for six independent employers at the same time, his earnings, upon which compensation is to be computed, are the total amount received from all six, and not just the amount received from the employer on whose premises he was injured. (Wk. Comp., etc., Act, § 17) Western Metal Supply Co. v. Pillsbury (Cal.) 156 Pac. 491. Where a night watchman is employed by a number of employers severally, and is paid a certain amount by each for watching their premises, his average annual earnings are to be fixed at the amount earned by him from all of such employers in his occupation of night watchman during the year preceding his injury. Compensation is not primarily determined between the employer and his injured employé, but between the state and the industries of the state. It is rated upon the average amount necessary to tide injured persons over periods of adversity consequent upon accident. The accident has deprived the widow of the whole of the earnings of the deceased from all sources as night watchman, and she is entitled to an award computed upon the whole of her husband's earnings. Mason v. Western Metal Supply Co., 1 Cal. I. A. C. Dec. 284. There were concurrent contracts of service, upon which to compute earnings, where a charwoman worked regularly certain days of the week for one employer, and on other days worked for other people (Dewhurst v. Mather [1909] 1 B. W. C. C. 328, C. A.); where a railway company's rule that their employés must "devote themselves exclusively to the company's service" meant

Where a person is employed as a night watchman, and also earns a small amount acting as janitor in the daytime, the sums earned as janitor in the employment of others cannot be included in his average annual earnings for the purpose of ascertaining the amount of death benefit, where he is killed while acting as night watchman. It was as night watchman that he was employed by the defendant, and his earnings in that occupation only are to be considered.32

33

In determining the amount of compensation due for a temporary disability, compensation is based upon the present total or partial loss of earnings. The probable loss of wages will be determined by computation and estimate from all the evidence, and cannot be established definitely by evidence of earnings at any particular time.34

§ 151.

Determination of average earnings

In California, where a workman has worked substantially the whole of the preceding year in the same employment, his average

that they must do so only during the hours of the day they were working for the company, and a plate layer worked evenings in a theater (Lloyd v. Midland Ry. Co. [1914] 7 B. W. C. C. 72, C. A.); and where the stoker on a merchant ship received in addition to his earnings there a retainer of £6 per year as a member of the Royal Naval Reserve (Owners of S. S. Raphael v. Brandy [1911] 4 B. W. C. C. 307, H. L., and 6, C. A.); but not where a casual laborer worked at two different times for two different employers (Cue v. Port of London Authority [1914] 7 B. W. C. C. 447, C. A.). Where a workman, in conjunction with his three years' continuous employment by the respondents, worked as a sorter in the post office, and was killed, his earnings under the concurrent contract were not considered. Buckley v. London & India Docks (1910) 2 B. W. C. C. 327, C. A.

32 Mason v. Western Metal Supply Co., 1 Cal. I. A. C. Dec. 284.

38 Greenock v. Drake, 2 Cal. I. A. C. Dec. 379.

Where one employed at a yearly salary sustains an injury resulting in temporary disability only, he is not entitled to compensation if, under his contract, no deduction from his salary is to be made for loss of time. In re A. Costello, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 54.

34 Saunders v. Oxnard Home Telephone, 1 Cal. I. A. C. Dec. 636.