Under the Connecticut Act, where one eye is destroyed and the other injured, and total incapacity for work results from the injured eye because of the blindness of the other, though it would not have caused incapacity had that eye been normal, compensation is payable for loss of the eye under the schedule, and for total incapacity during its existence. 31 Where the claimant had no useful vision in her eye because of a prior injury, though she was able to distinguish light from dark, she could not recover for loss of sight on account of an accident which necessitated the removal of the eye; but where the removal of such eye was made desirable by pain and soreness consequent upon sticking a spindle into it. while stooping to pick up a bobbin which had fallen on the floor, compensation was allowed for disability due to its removal.32

§ 161. Hernia-California

A hernia, though usually remediable by operation, and therefore a temporary disability, constitutes a permanent disability where it is not operated upon and no operation is tendered by the employer. An employé receiving a hernia is under no obligation to sustain an operation at his own expense, as his earnings should be devoted primarily to the support of his family, and he cannot reasonably be required to deprive them of such support to undergo was injured by a fall, causing a severe sprain of the left ankle, and recovery therefrom was prolonged by reason of a condition of general arterial disease, and at the date of the hearing the applicant's disability was about equally divided between his general condition and the result of the accident, he was held entitled to compensation during the entire continuance of disability resulting from the accident. Dabila v. Brandon & Lawson, 1 Cal. I. A. C. Dec. 239. But where an employé bruises his leg, this bruise subsequently breaking down into an ulcer, and the duration of this ulcer is greatly prolonged by a condition of varicose veins, but it is shown that the varicose condition did not in any way contribute to the formation of the ulcer, compensation will be allowed for the full period of disability. Hoffman v. Korn, 2 Cal. I. A. C. Dec. 166.

31 Swanson v. Sargent & Co., 1 Conn. Comp. Dec. 433.

82 In Nichols v. Max Pollock Co., 1 Conn. Comp. Dec. 74.

33

an operation. Unless an employer has knowledge prior to the accident of a hernia then existing, disability awards for hernia, claimed to result from the accident, will be made only when the traumatic origin of the hernia is clearly established, and any award will be limited to cover the cost of operation to cure the hernia and for disability consequent upon such operation, except for such disability as may have existed prior to the offer on the part of the employer or insurance carrier to provide for such operation. Where an employé is operated upon for hernia, and within a few days after leaving the hospital returns, suffering from typhoid fever, such typhoid fever will not be presumed to have been caused by the hernia or operation, and compensation will be allowed only for the normal period of disability which would result from the operation if no disease had intervened.85

§ 162. Scheduled injuries

34

Where compensation under the schedule is in addition to other compensation, it is often called "additional compensation." 36 The

33 Taylor v. Spreckels, 2 Cal. I. A. C. Dec. 62. A hernia may be treated as a permanent disability unless operated upon, and compensation may be awarded upon the basis of such permanent disability, unless an operation be tendered for its cure at the expense of the employer, even though 90 days may have elapsed from the date of the accident. Id.

Hernia cannot usually be regarded as a permanent disability, as it is remediable by operation. Brandt v. Globe Indemnity Co., 1 Cal. I. A. C. Dec. 309. Hernia is a temporary disability, because it is remediable, and the risk of the operation is inconsiderable, in view of the seriousness of the injury if not remedied, under section 16, subd. (e), of the California Act. An employé suffering from hernia must therefore submit to an operation, if offered, or forfeit part or all of the compensation due him. McNamara v. United States Fidelity & Guaranty Co., 1 Cal. I. A. C. Dec. 138.

34 Mifsud v. Palace Hotel Co., 1 Cal. I. A. C. Dec. 37.

35 Viglione v. Montgomery Garage Co., 2 Cal. I. A. C. Dec. 87.

36 The injured employé, who had suffered the loss of any member, was entitled to specific award, as stated in section 25 of the Nevada Industrial Insurance Act, and in addition to said award was also entitled to an award

particular injuries set out are merely examples to aid in administering the Act. The enumeration does not profess to be exclusive.37 The usual theory of the Compensation Acts is to make provision in the schedule for certain specific injuries, and to leave all other injuries to be compensated for under general provisions.38 An award within the statutory limit cannot be held arbitrary. Under a provision that the schedule shall also apply "in case the injury is such that" the member "is permanently incapable of use," the words “incapable of use" should receive a construction which, while fairly within their interpretation, is not narrow and technical, nor, on the

39

of 50 per cent. of the average monthly wage for such time as he was totally disabled. Rep. Nev. Indus. Com. 1913-14, p. 24.

The fact that a workman, after suffering the loss of one or more fingers, is able to earn the same wage as before, does not affect his right to the specific indemnity provided in section 10, part II, of the Law; such indemnity being given because the workman must go through the remainder of his life without the use of the members so lost. Lardie v. Grand Rapids Showcase Co., Mich. Wk. Comp. Cases (1916) 17.

37 Wagner v. American Bridge Co. (Sup.) 158 N. Y. Supp. 1043.

38 "The whole schedule is so specific that it is difficult to see how the Legislature could have intended that an injury to an arm impairing its usefulness 50 per cent. or any degree, would come within the schedule. It seems from the whole Act that the purpose of the Legislature was to confine the fixed compensation named in the schedule in subdivision 5 to the specific injuries named therein." Northwestern Fuel Co. v. Leipus, 161 Wis. 450, 152 N. W. 856.

It was held in Wallace v. Tracy Bros. Co., 1 Conn. Comp. Dec. 155, that the Connecticut Act provides compensation under the schedule in lieu of all other compensation for the injuries included therein, and that compensation may be awarded in addition to compensation under the schedule, for injuries to other fingers which do not come under the schedule. In Batch v. Borough of Groton, 1 Conn. Comp. Dec. 177, where claimant's finger was crushed in a pump, and infection set in and spread, causing the total loss of the use of the hand and septic phlebitis in the right leg, compensation was awarded under the schedule for loss of the use of the hand, and separate disability indemnity for incapacity due to the condition of the leg.

39 An award of $1,200 to a servant for loss of several fingers could not be set aside as arbitrary, where this was less than the maximum amount authorized by statute. Sinnes v. Daggett, 80 Wash. 673, 142 Pac. 5.

42

43

other hand, so free and liberal as to give a right which the words themselves do not fairly import.40 The complete loss of the functions of a thumb, finger, toe, hand, arm, foot, leg, or eye should be considered as the total loss of such member; 1 but the loss of the merest shaving of bone from the tip of the first phalange is not equivalent to the loss of the phalange. When the accident sets in motion agencies which ultimately destroy the sight of the eye, no right to compensation accrues, and no compensable injury exists, until the point of time is reached where the eye is a total loss.* "All other cases in this class," in the provision of the Wisconsin Act that in such cases "the compensation shall bear such relation to the amount stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule," obviously has reference to the injuries mentioned specifically in the schedule, and was not intended to include impairment occasioned by a different injury than that named in the schedule. Where the injury consisted of a fracture of the skull, paralysis of the right side of the mouth, and injuries to the nostril, eye, and ear, together with impairment of the use of the right arm, an award of 340 weeks' pay was unauthorized under the New Jersey Act, when there was no evidence that the injuries stood to the disability in the proportion of 340 to 400, but, on the contrary, the evidence showed that

44

40 (St. 1911, c. 751, pt. 2, § 11, amended by St. 1914, c. 708) Floccher v. Fi delity & Deposit Co. of Md., 221 Mass. 54, 108 N. E. 1032.

41 Rep. Nev. Indus. Com., 1913-14, p. 21.

The loss of the use of a member is sufficient to entitle the injured party to compensation as provided in the schedule, whether the member is completely severed or not; the action of the surgeon in amputating the finger, or failing to amputate it, not being controlling (section 10, part II, Workmen's Compensation Act). Lardie v. Grand Rapids Showcase Co., Mich. Wk. Comp. Cases (1916) 17.

42 (Wk. Comp. Act, § 15, subd. 3) Mockler v. Hawkes, 158 N. Y. Supp. 759. 48 Kalucki v. American Car & Foundry Co., Mich. Wk. Comp. Cases (1916) 390.

44 Northwestern Fuel Co. v. Leipus, 161 Wis. 450, 152 N. W. 856.

HON.COMP.-40

the proportion of the extent of the disability was much less. None of these injuries are specially provided for, and allowance therefor must be under the provision that the compensation shall bear such relation to the amounts stated in the schedule as the disabilities bear to those produced by the injuries named in the schedule.** Awards under the schedule of the Washington Act are dependent upon surgical discharge and proofs when the extent of the injury is to be determined.46

There is nothing in the New York Act to justify concurrent compensation for temporary total disability and under the schedule for total disability, and such a construction is contrary to the intention of the Legislature."

An award for permanent impairment of vision is unauthorized, where the injury does not destroy the workman's eye or vision, or prevent him from returning to work and earning the same wages as before the injury, though his eye be permanently injured. The loss being only partial, he is entitled to compensation measured only by his lessened wages. Where a workman, after injury to

49

48

45 O'Connell v. Simms Magneto Co., 85 N. J. Law, 64, 89 Atl. 922. An award made under section 2 of the New Jersey Act must be according to paragraph 11, containing the schedule of amounts, and is limited by that paragraph. (P. L. 1911, p. 136, § 2, par. 11) Bateman Mfg. Co. v. Smith, 85 N. J. Law, 409, 89 Atl. 979.

46 (Wk. Comp. Act Wash. § 5) Rulings Wash. Indus. Ins. Com. 1915, p. 17. 47 Fredenburg v. Empire United Rys., Inc., 168 App. Div. 618, 154 N. Y. Supp. 351.

48 Hirschkorn v. Ficge Desk Co., 184 Mich. 239, 150 N. W. 851.

49 Cline v. Studebaker Corporation (Mich.) 155 N. W. 519, L. R. A. 1916C, 1139.

Where, as a result of an injury, an employé lost 50 per cent. of the vision in one eye, and his earning capacity was thereby impaired, he was entitled to one-fourth of his average weekly wages, the same being based upon onefourth loss of vision, and the injury as a matter of law having affected his