Courts (m), but it is now generally recognized as the correct course SCHED. I. to adopt. Par. (3). Amount of payments. earn. suspensory Where a man suffered from rupture, and could do his work weekly perfectly satisfactorily, such suspensory award was held to be Ability to correct (n), and, so, where a joiner lost two fingers, but was never- Physical theless able to pursue his calling as before, he was still held entitled condition and to the same order (o). But where a man had an injured knee- orders. cap which could be kept right by wearing an elastic band, the arbitrator, in a Scotch case, ended the compensation, and it was held there was evidence to justify his so doing (p). The most general class of cases where such orders have been made is when workmen have been injured and have suffered a diminution of earning capacity, and have yet been taken back by their employers at the old rate of wages. This practice was established in the old case of Chandler v. Smith (q), and has since been uniformly acted upon. In cases such as above when there may easily be a recrudescence of the injury, these suspensory orders are not unsatisfactory. But when they are made owing to a man's area of employment being circumscribed, they are anything but a happy solution of difficulties arising in the carrying out of the Act, and here, with all diffidence, I would suggest that there is one modification open under the present Act which might, in some cases, work more or less usefully. It has been noted the present para. (3) is drawn far more in favour of the employer than the corresponding one under the old Act. Now, as regards quantum in the case of partial incapacity, we have seen that the law is that an employer shall be liable to pay compensation, and the amount is to be, where partial incapacity results, a weekly payment, during the partial incapacity, not (m) Singer Manufacturing Co. v. Morgan, (1909) 2 K. B. 66. facturing Co. v. Dudley, 3 B. W. (p) Anderson v. Darngavil Col- SCHED. I. Amount of Ability to earn. Physical condition and suspensory orders. exceeding fifty per cent. of his average weekly earnings, to be ascertained, and in no case to exceed the difference between what he was earning before his accident and the average weekly amount which he is earning or is able to earn in some suitable employment or business after the accident. Is there anything inconsistent in these words with an arbitrator neither giving a partially disabled man the same amount as if he were totally disabled, nor yet a nominal amount as if not disabled at all, but at once, to the best of his ability, assessing as a jury would assess what he should properly earn in a suitable employment, and awarding a weekly payment accordingly? He might well argue, “I cannot say what suitable employment is open to a man, and no more can a master, but that there is some suitable employment which can be found with trouble and diligence, I have not a doubt. Take the case of the butcher's mate. Other men who have lost a finger have to earn their living, and what one man does another can do. My business is to find out how much a man's earning capacity is reduced. This done, and compensation given accordingly, it is for him to take the risk of the labour market and find a job, and not for other people." Thus, suppose a case where a man was earning 40s. a week, and the arbitrator, after hearing evidence, was satisfied that he was for the future-under the same market conditions of labour-only likely to earn 30s., then he would find his earning capacity had been reduced 10s. a week, and award him a weekly payment of 78. 6d. In many cases this would operate far more justly than the present practice. Take the case of the two miners. Suppose the arbitrators in the respective cases had found that neither of them could find suitable employment which would yield them within 108. a week of what they were originally earning, and that, therefore, 10s. was a proper weekly sum to award. Then, according to temperament, and a thousand and one other considerations no one could determine but themselves, one might decide to go back to work as a miner, and the other decide he would wait till he got a job as a carter. Amount of To only give one man a penny a week was SCHED. I. obviously too little. There was not a doubt his earning capacity Par. (3). had been far more lessened. To find the other totally incapacitated weekly was equally wrong, because there was work offered which he could Ability to actually do. payments. earn. Physical condition and Were it possible for an arbitrator, subject to a man's physical suspensory condition remaining the same, to make a permanent award, the orders. advantages would be many. A man, with his award, would have got all out of his accident he ever would get, and it would be to his interest to make the best of himself, and not the worst. Such awards would be the death blow of malingering and a too great nicety in taking or refusing work that was offered. So, by restoring to masters and men their equally free powers of contracting, the amenity of industrial life would be again restored. Nothing is truer than the fable of the two friendly dogs who never ceased fighting when they were chained together. It is not a pleasing situation when a master has to employ a man. But it would seem that as against a master, an arbitrator can make no such permanent award except by consent. Take the case of the miner. He might return to work, and, save for the extra risk, do just as well and earn just as much as any other miner. This would at once entitle his employer to ask for a review. The weekly payment is not to exceed the difference between what a man was and is earning. Still, it seems that this difficulty notwithstanding, that arbitrators might well meet the necessities of a case by their giving a weekly sum actually proportionate to the injury sustained. One thing is certain, the nominal penny a week is as often wrong as the maximum amount allowed. A man has been injured. His earning capacity has been reduced 2s. 6d. a week. Why should he not have that 2s. 6d., even if he wants to drink himself to death, and even if, on account of his drunken habits, no one will employ him? Perhaps, before his accident, he was not a drunkard at all, or, at any rate, knew how to carry his liquor. SCHED. I. Par. (4). examination, Paragraph (4) provides for a workman submitting himself to medical examination if so required by his employer. This paragraph we will deal with later on conjointly with paras. (14), (15) and (20), also dealing with other phases of such medical examination. The payment in the case of death. (5) The payment in the case of death shall, unless otherwise ordered as hereinafter provided, be paid into the county court, and any sum so paid into court shall, subject to rules of court and the provisions of this schedule, be invested, applied, or otherwise dealt with by the court in such manner as the court in its discretion thinks fit for the benefit of the persons entitled thereto under this Act, and the receipt of the registrar of the court shall be a sufficient discharge in respect of the amount paid in: Provided that, if so agreed, the payment in case of death shall, if the workman leaves no dependants, be made to his legal personal representative, or, if he has no such representative, to the person to whom the expenses of medical attendance and burial are due. As regards payment to the workman himself, we may point out that the chief provision is that of para. 14 of Sched. II. (infra), which requires all sums paid as compensation to be either paid into Court or else only paid on the receipt of the person entitled, and does not permit his solicitor or agent to receive any part of such amount or to claim a lien on it further than what is allowed by the arbitrator. Para. 19 of Sched. I. is also to be noted, which does not permit such sums to be charged, and para. 17, which provides for their being compounded. As regards death, by this paragraph, in every case payment is to be into Court for the benefit of the dependants. Par. (5). of death. The rights of dependants when death results from the injury SCHED. I. is a separate and independent right to that of the workman, and The payment cannot be released by them, but amounts paid to him weekly, or in the case any lump sum paid in redemption, have to be deducted from the amount payable to them (r). Payment of funeral expenses, or repayment of money so expended, is not provided for when there are dependants, but when the maximum is not exceeded, the same, so far as reasonable, may be added to the amount awarded (s). Who are dependants we have discussed under sect. 13 of the Act, and para. 8 of this schedule (see infra) determines how they are to be ascertained, and also provides for the settlement of their rights inter se. Rule 18 provides for payment into Court on admission of liability by respondents, and Rule 56 provides generally for the carrying out of this paragraph 5. The general direction for payment into Court is an improvement on the old procedure. Formerly the employer was placed in a difficult position if there was no legal personal representative to pay the compensation to. He could not compel a dependant to take out letters of administration (t), he ran risks of not getting a good receipt for his money if he did not, and if he paid the money into Court he incurred extra costs. Now, the ascertainment of the dependants as well as the disposition of the fund is a matter for the judge, and if the employer has admitted liability, and brought the money into Court, there is no need for him to be joined in arbitration proceedings to determine how it is to be dealt with, even if some of the dependants be infants (u). On the hearing the Court, however, will require all dependants, or all claiming as dependants, to be before them before making an order (v). |