second 200 payments should not begin until the expiration of the first 200 payments.25 Two awards, one under the schedule and one not, ordinarily run consecutively and not concurrently.20

There is no provision in the Iowa Act which permits employers to make payments otherwise than weekly, unless an arrangement is made for the payment in a lump sum.2 27

The year for which compensation is payable begins to run on the day following the date of the injury and terminates with the anniversary of the day of injury.28 The date of the injury is the date on which the injury results in incapacity for work.29 So long as the injury continues the employé is entitled to his status at the time of the injury, and must be paid compensation as if he continued to be employed, even though the work on which he was employed has been stopped or suspended before he is able to resume work; 31 but he is entitled to compensation no longer than his incapacity is due

30

25 Diskon v. Bubb, 88 N. J. Law, 513, 96 Atl. 660.

26 In Swanson v. Sargent & Co., 1 Conn. Comp. Dec. 433, it was held that compensation for the loss of an eye under the schedule and compensation for incapacity due to injury to the other does not run concurrently, but consecutively. In Kaiser v. Pinney, 1 Conn. Comp. Dec. 562, where the claimant was found entitled to compensation under the schedule for loss of hearing, and also for total incapacity, as a result of being struck on the head by a piece of timber, causing Meniere's disease, it was held that the double compensation should run consecutively, and not concurrently.

As to separate awards under the schedule, see § 165, ante.

27 (Code Supp. 1913, § 2477m14) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 34.

28 In re Kelly, Op. Sol. Dept. of L. 337. The compensation year begins to run from the exact time when the wage earnings cease. In re Robinson, Op. Sol. Dept. of L. 386.

29 In re Bowen, Op. Sol. Dept. of L. 340.

30 In re Huff (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 568; (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 786.

81 In re McCrae, Op. Sol. Dept. of L. 375.

33

to his original injury, and may not be paid because, on account of old age or other bodily infirmity, he is unable to resume work within the year. The payment of compensation provided for contemplates a continuing liability, and even in case of death that the payments will be made as they would have accrued. Where the period of incapacity covers more than one fiscal year, payment should only be made for the time of incapacity during each fiscal year from the appropriation for that year. A temporary employé, who is injured and whose incapacity continues beyond his term of appointment, is entitled to pay during incapacity, regardless of the termination of the employment. Ability to resume the regular work of the injured person's employment appearing, compensation ceases under the Act, though the employé remains seriously and permanently injured. Ability to resume work means inability to resume the regular work of the injured person's employment in the

32 In re Blackhurst, Op. Sol. Dept. of L. 690. To entitle an employé to continued compensation, the disability must be due in an appreciable measure to the original injury. In re McAllister, Op. Sol. Dept. of L. 680.

A workman was struck in the eye by a piece of steel, causing the loss of the eye. The injury, while permanent, was stated by the United States hospital service physician to have no bearing on the physical condition. He was held entitled to compensation only for the time he was physically incapacitated by the injury. In re Holden, Op. Sol. Dept. of L. 268. In this case the superior officer of the claimant recommended that he be paid only for a certain number of days, but gave no satisfactory reason for his recommendation. As the medical evidence appeared to substantiate the contention of the claimant, it was decided that a claim was established. In re Smith, Op. Sol. Dept. of L. 745. The hospital surgeon reported that the injury should not have caused incapacity for more than 15 days, while the attending physician certified to incapacity for a longer period. In view of all the circumstances, the claim was allowed. In re Williamson, Op. Sol. Dept. of L. 750.

38 In re Huff (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 568.

84 (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 794. Where the period of incapacity covers more than one fiscal year payment should only be made for the time of incapacity, regardless of the termination of the employment. (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 795.

35 In re Carroll, Op. Sol. Dept. of L. 367.

37

course of which the injury was sustained, not any work he may be able to do notwithstanding the injury. Hence, inability to resume regular work of the employment appearing, compensation is payable, though the claimant is discharged and obtains other employment of a different character. However, where an injured employé, though unable to return to his regular work, returns to work of a different character, and receives the same pay as if his duties remained unchanged, compensation under the Act ceases; his right to compensation is merged in his right to receive pay for his services.38 Ability to resume work at a given date cannot be predicated on the fact that an injured person refused to submit to an operation, and therefore, according to medical opinion, delayed recovery. When delay in returning to work is not chargeable to the claimant, but to some rule or regulation of the establishment where he is employed, loss of time occasioned thereby is an incident of the injury, and the claimant is entitled to pay therefor. The time consumed by an injured workman in returning from the place where he was treated for the injury may be considered a part of the incapacity period, where it was necessary to go to such place for treatment because of the lack of facilities at a nearer point. The compensation period includes all regular working days, exclusive of Sundays and legal holidays.*2

41

36 In re Query of Naval Constructor of Boston Navy Yard, Op. Sol. Dept. of L. 345.

Claimant was advised by the government physician who treated the injury to perform light work in the way of exercise, but this did not disentitle him to compensation, which was payable until he was able to resume his regular duties. In re Richerson, Op. Sol. Dept. of L. 775.

87 In re Hill, Op. Sol. Dept. of L. 369.

88 In re Manaloc, Op. Sol. Dept. of L. 383.

39 In re Passus, Op. Sol. Dept. of L. 371.

40 In re Winn, Op. Sol. Dept. of L. 389.

41 In re Cernich, Op. Sol. Dept. of L. 539; In re Bailey, Op. Sol. Dept. of L. 297.

42 In re Weissenborn, Op. Sol. Dept. of L. 388.

§ 177. Waiting period

43

As a rule, compensation is not payable unless the resulting disability lasts longer than two weeks, or ten days. The provision of the New Jersey Act that "no compensation shall be allowed for the first two weeks after injury received, except as provided by paragraph 14, nor in any case unless the employer has actual knowledge of the injury or is notified thereof within the period specified in paragraph 15," does not reduce the compensation for loss of a phalange from an allowance for 35 weeks to an allowance for 33 weeks. It is probable that the intent of this section was to exclude allowance of compensation in the case of a temporary disability lasting less than two weeks, except for medical and hospital services and medicines. This section must be read in connection with the section relating to the furnishing of medical attention and medicine, and be confined to cases where death does not occur. Where the workman is killed instantly, the provision for holding up the compensation for two weeks does not apply. Under the California Act, where an injured employé returns to work within two weeks after an accident at the same wages that he was receiving before his injury, no temporary total or partial disability compensation can be awarded, even though he has not entirely recovered. Compensation is awarded only for loss of earnings due to accidental injury, and not for pain and suffering unaccompanied

46

43 Armiger v. Townsend-Davis Baking Co., 1 Cal. I. A. C. Dec. 55; Turgeon v. Fox Co., 1 Cal. I. A. C. Dec. 68; Lough v. Standard Oil Co., 1 Cal. I. A. C. Dec. 41; Kagaroff v. Southern California Gas Co., 1 Cal. I. A. C. Dec. 43.

44 In Swanson v. Sargent & Co., 1 Conn. Comp. Dec. 433, it was held that the loss of a member compensable under the schedule is a presumed incapacity, and that the waiting period applies to such injuries, under a provision that, if incapacity extends beyond a period of ten days, compensation shall begin on the eleventh day. (Wk. Comp. Act, pt. B, § 8, as amended by Laws 1915, c. 288, § 4.)

45 James A. Banister Co. v. Kriger, 84 N. J. Law, 30, 85 Atl. 1027. 46 Conners v. Public Service Electric Co. (N. J. Sup. 1916) 97 Atl. 792.

by loss of earnings beyond the two weeks' waiting period. But where an employer elects to pay compensation for any portion of the period of disability, without deducting for the waiting period of the first fifteen days, the injured employé will not be forced to refund the indemnity paid for such waiting period, nor will the employer be credited therewith on the award.48

49

Although the nature of the injury and the physician's certificate indicate clearly that the incapacity will continue more than fifteen days, the Secretary is not justified in approving a claim which fails to show affirmatively that incapacity continued for more than that period. When the days of incapacity, whether consecutive or in broken periods, amount to more than fifteen, counting intervening Sundays and holidays, the law entitles the employé to compensation.50 The day on which the injury occurred should be included in determining whether duration of incapacity existed for more than fifteen days.51 An employé who is so injured that he can never resume the work on which he was engaged at the time of the injury, but who, after fourteen days of incapacity, is able to resume work by accepting an assignment to a character of work with which his injury does not materially interfere, and who does so resume work, may receive compensation for the time lost, even though it may not amount to more than fifteen days.52 Where there is a conflict of opinion between the

47 Ely v. Maryland Casualty Co., 1 Cal. I. A. C. Dec. 335.

48 Turner v. City of Santa Cruz, 2 Cal. I. A. C. Dec. 991.

49 In re Dray, Op. Sol. Dept. of L. 540.

50 In re Wells, Op. Sol. Dept. of L. 515.

51 In re Taylor, Op. Sol. Dept. of L. 542. An injury continues for "more than" fifteen days if the period of disability lasts for fifteen full days in addition to the day of injury; the day of injury cannot be disregarded without extending the period limited to sixteen days. In re Fogg, Op. Sol. Dept. of L. 509.

52 In re Davis, Op. Sol. Dept. of L. 516.