and the only apparent justification for it is that it is a recognized custom, is convenient, and prevents the injustice that would occur when the compensation has been terminated in cases where there may be a recurrence of the workman's incapacity which is due to the incident. 21 In view of the fact that an award terminating the compensation is final, there has grown up the custom of awarding a "penny a week" to a workman who is at the time of the application able to do his ordinary work, but is permanently injured, and may at any time again become incapacitated by reason of the This custom has been held incompetent injury. It is conceded that the statute by both divisions of the court of sesmakes no provision for such an award, sion.2 But it is upheld by the court of 21 Rosie v. Mackay [1910] S. C. 714, arbiter's jurisdiction, and was not an ex47 Scot. L. R. 654; Clelland v. Singer | haustive review of his powers, and did not Mfg. Co. (1905) 7 Sc. Sess. Cas. 5th series necessarily exclude another course if the (Scot.) 975. justice of the case so required. He further observed: "If that view be sound, the next question is, what is the form of procedure which should be adopted? The method adopted in the English courts, and which has now received the approval of the court of appeal, is to diminish the weekly payment to the nominal sum of 1d. With great respect, I cannot think that that is a course which should be followed. It seems to me to proceed upon the view that the arbiter must either end, diminish, or increase the weekly payment. I have already given my reasons for thinking that the arbiter is not so restricted; but assuming that he is, the awarding of a nominal sum seems to me to be indefensible, because it is a device whereby it is attempted to keep the letter of the law while disregarding the substance. The course which I venture to suggest should be followed in this and similar cases is something of this nature: the arbiter might find that in respect the medical referee had reported that the respondent was not incapacitated for work but was able for his ordinary work, he was not entitled to receive any weekly payment so long as he remained in that condition, and with that finding he might sist procedure or continue the cause, with leave to either party to renew the application in the event of a change of circumstances occurring. Of course I merely suggest the kind of order (and not the precise terms of it) which I think would best meet the necessity of the case. may be objected that such a course would interfere with the employer's right to redeem. No doubt it would postpone the exercise of that right, and I recognize the force of the objection. But it seems to me that there is no course which is not open to some objection. If the weekly payment were ended, then, although the workman is permanently injured and may any day become totally incapacitated, he would lose his right to compensation in the event of incapacity actually recurring, a result which in my opinion would be contrary to the In the case of Rosie v. Mackay (Scot.) statute. On the other hand, if it were Lord Low, recognizing the hardship which held that the arbiter is bound at once to might follow the rule laid down by the fix the amount of compensation, he can do Scottish courts, said that the provision of no more than make a rough estimate, which the twelfth paragraph of the first schedule as events turned out might be a great -that upon review the weekly payments deal too much or a great deal too little. may be "ended, diminished or increased"-I therefore think that in a case such as merely indicated generally the scope of the the present,-where you have a workman In the latter case, Lord Adam observed: "The 13th section of the first Schedule, for example, gives to the employer, where weekly payments have been continued for not less than six months, a right to have his liability therefor redeemed by payment of a lump sum. This clause appears to me clearly to indicate that it was not intended that an employer's liability under the act should continue for an indefinite time, but that he should be able to get rid of it by payment of a lump sum at the end of six months. But it appears to me that the device of suspending the weekly payments, and substituting therefor the payment of a nominal sum of a penny, would render that clause practically inoperative. It was admitted on both sides that the payment of the nominal sum of a penny could not be treated as a weekly payment under the act. If that be so, then in this case, for example, in which the weekly payments ceased at the end of four months, if the appellants were to apply to have their liability under the act redeemed by payment of a lump sum, they would be met by the plea that the weekly payments had not been continued for the necessary period of six months. I see no answer to that plea, with the result that the appellant's liability under the act would be continued indefinitely. I think that the act assumes that the weekly payments are to be continuous, and if at the end of six months an application is made by an employer to an arbiter for redemption of his liability by payment of a lump sum, the arbiter must apply his mind to the facts as then existing, and determine the amount of that sum to the best of his ability. So I think that when an application is made to an arbiter, under the 12th section, to review a weekly pay ment, he must apply his mind to the facts as they exist at the time, and either diminish, increase, or end the payment, or, by refusing the application, continue it, but that he has no power under the act to suspend it." It appeal.22 In the House of Lords the question was at first expressly reserved; 23 but in a subsequent case the position was taken by all of the law lords delivering separate judgments that the county court judge or arbitrator has jurisdiction, in a case where upon the evidence he is of the opinion that incapacity may probably recur, to keep alive the liability of the employers either by a suspensory order, or by an order to reduce the weekly payment to a nominal sum, or by some other device.24 Even after the decision of the House of Lords permanently injured but able in the meantime to do his work, the course which is fairest to both parties and most in consonance with the scheme of the statute is of the kind which I have indicated. I do not think that the employer can complain if he is relieved of all payments so long as the workman is able for his ordinary work, while the workman gets all that he is entitled to if he can come back to the arbiter in the event of incapacity supervening." Freeland v. Macfarlane, Land & Co. (1900) 2 Sc. Sess. Cas. 5th series (Scot.) 832, and Ferrier v. Gourley Bros. & Co. (1902) 4 Sc. Sess. Cas. 5th series, 711, 39 Scot. L. R. 453, 9 Scot. L. T. 517, were reconsidered in Clelland v. Singer Mfg. Co. (Scot.) supra. that the practice of awarding a penny a week might be sustained, the Scottish court held that such a proceeding was a mere subterfuge and that the same end might be obtained by merely making a suspensory award.25 In cases in which the workman has recovered his capacity for work, but the injury was of such a character that incapacity might recur in the future, all of the courts now recognize the practice of making some form of suspensory award, either by awarding a penny a week or by making a declaration of liaing an award for nominal compensation so long as the immediate earning powers are not diminished, when there is reason to believe that they are not permanently as great as they were before the accident. This court has again and again had to deal with such awards, and has treated them as valid, and I think that they are in the interest of both parties." Where there is some reason to anticipate any recurrence of the difficulty, the county judge should make a suspensory award of a nominal amount, in order to keep alive the employer's liability. Griga v. The Harelda (1910) 3 B. W. C. C. (Eng.) 116, Cozens-Hardy, M. R., observed: "In my opinion this court has distinctly laid down a principle from which we should not depart, that in a case of this kind, where a man has been ruptured, though by wearing a truss he may be physically able to earn full wages, still the circumstances are such that there is a possibility, if not a probability, that in the future there will be bad effects resulting from the accident which will effect his earning capacity." 23 Nicholson v. Piper [1907] A. C. (Eng.) 215, 76 L. J. K. B. Ñ. S. 856, 97 L. T. N. S. 119, 23 Times L. R. 620. 24 Taylor v. London & N. W. R. Co. [1912] A. C. (Eng.) 242, 81 L. J. K. B. N. S. 541, 106 L. T. N. S. 354, 28 Times L. R. 290, 56 Sol. Jo. 323, [1912] W. C. C. 95, [1912] W. N. 53, 49 Scot. L. R. 1020, 5 B. W. C. C. 218. 22 The Tynron v. Morgan [1909] 2 K. B. (Eng.) 66. Fletcher, Moulton, L. J., said: "It [the power of review] must not, how ever, be allowed to work injustice to the workman, and I will put a case which I think shows conclusively that, where there is a permanent injury, no judge is entitled to treat the fact that a man can at the moment earn just as much as he could before his accident as being a justification for terminating the compensation. Suppose there is an injury which produces incapacity only in the winter; in other words, suppose that in the summer, when the weather is fairly warm, the man can work as well as he could previously to the accident, but in the cold weather he is wholly or partially incapacitated, and that the owners apply in the summer for a review. They are perfectly entitled to have the compensation cut down to a nominal amount at the time, but they are not entitled to have the compensation terminated, because, if once terminated, it cannot be reviewed again. If we were to hold that the fact that the man was earning full wages at the moment of review was sufficient to 25 Dempsey v. Caldwell [1914] S. C. 28, entitle the compensation to be terminated, 51 Scot. L. R. 16, [1913] 2 Scot. L. T. 267, the consequence would be that the county 7 B. W. C. C. 823. In this case the workcourt judge, with full knowledge of the man had sustained permanent injuries to admitted fact that when the winter came his right hand; and the court of sessions on the man would develop an incapacity remitted the case to the sheriff substitute due to the accident, would be obliged to who had previously terminated the paystop all compensation for the future. The ment, to consider whether the ending of tribunals which have to administer this the payment of compensation should be act have got out of the difficulty by grant-permanent or temporary. In Weir v. North British R. Co. (1912) 49 Scot. L. R. 772, [1912] S. C. 1073, 5 B. W. C. C. 595, weekly payments were terminated by the sheriff substitute, but as this decision was rendered prior to the decision of the House of Lords in Taylor v. London & N. W. R. Co. (Eng., supra, as to open awards, the court of sessions sent the case back to be reconsidered in the light of that case. bility, thus keeping the matter open for future determination. The whether the case is one to be thus kept open depends upon the facts of each case. It is not a case for suspensory award where the workman has been found to be wholly recovered from the accident.27 26 warrant the county court judge in term29 question inating the weekly payments. But the arbiter cannot increase weekly payments beyond the 50 per cent of the weekly sum which the workman would probably have been earning at the date of the review if he had remained uninjured, although the workman was a minor whose earning capacity had increased beyond what it was at the time of the award.30 In determining what weekly sum the workman, under age, would probably have been earning at the date of the review had he remained uninjured, the in a worse earning position, as this man would if he were to have his dead eye removed. He would be a palpable oneeyed man if he underwent this operation." The county court judge may make a suspensory award upon an original application as well as under an application to review.28 The mere fact that a minor is earning the same or more after the injury than before, does not 26 The county court judge is not justified in granting merely a suspensory award of 1 penny a week where, but three days before the application, there had been a second amputation of part of the finger which had been crushed. Burgess v. Jewell (1911) 4 B. W. C. C. (Eng.) 145. On the application by the employers to terminate the payment of a penny a week, the question for the county court judge is, Is the workman in such a position that in the open market his earning capacity in the future may be less than it was before the accident, as a result of the accident? The question is not whether the employers are paying him the same wages as he received before the accident. Birmingham Cabinet Mfg. Co. v. Dudley (1910) 102 L. T. N. S. (Eng.) 619, 3 B. W. C. C. 169. Where the workman's inability to earn as much or more than before the accident is due to his drinking habits, he is entitled to no more than an award of a penny a week. Hill v. Ocean Coal Co. (1909) 3 B. W. C. C. (Eng.) 29. The question whether a workman who has lost a finger and received permanent injury to two other fingers is entitled to a suspensory award is a question of fact for the county court judge, and his decision that the workman is not so entitled will not be disturbed, although medical evidence was given to the effect that the lad would always be handicapped and would never be able to grip firmly with that hand, and a foreman called on behalf of the employers said that although he thought the lad was now able to work just as well as before the accident, still he would engage a man whose hand was not injured in preference to one who had lost one or more fingers. Emmerson v. Donkin (1910) 4 B. W. C. C. (Eng.) 74. Where the workman has lost the sight of one eye by accident and subsequently regained his earning capacity, upon an application to terminate payment the workman is entitled to a declaration of liability, where there is possible loss of the other eye from suppuration from the injured eye, although it is possible that this could be avoided by having the dead eye removed. Braithwaite v. Cox (1911) 5 B. W. C. C. (Eng.) 77. Cozens-Hardy, M. R., said: "A man cannot be compelled to put himself Where the employers offered to receive a workman back, and he admitted he was then able to do all his old work, he is not entitled to such a declaration of the liability. of his former employers as would preserve his rights in the event of supervening incapacity. Husband v. Campbell (1903) 5 Sc. Sess. Cas. 5th series, 1146, 40 Scot. L. R. 822, 11 Scot. L. T. 243. It is the duty of the county court judge to make a declaration of liability, and not to terminate the payment of compensation whenever there exists a permanent injury which may in the future develop and lessen the earning power. Chapman v. Sage & Co. (1915) 8 B. W. C. C. (Eng.) 559. 27 London & N. W. R. Co. v. Taylor (1910) 4 B. W. C. C. (Eng.) 11; Cranfield v. Ansell (1910) 4 B. W. C. C. (Eng.) 57. Where the incapacity has ceased, and the injury to his finger has not prevented the workman from obtaining work, it is not a case for a suspensory award. Goodall v. Kramer (1910) 3 B. W. C. C. (Eng.) 315. It is competent for the arbitrator to terminate the compensation and not give a suspensory award, where the workman has recovered his capacity for work, and the injury is of such a character as not to impair his chance for work in his former line of employment, or in any other line which he might reasonably hope to follow. Watson v. Beardmore [1914] S. C. 718, [1914] 2 Scot. L. T. 481, 51 Scot. L. R. 621, B. W. C. C. 913. 7 28 Green v. Cammell [1913] 3 K. B. (Eng.) 665, 82 L. J. K. B. N. S. 1230, 109 L. T. N. S. 202, 29 Times L. R. 703, [1913] W. N. 259, 6 B. W. C. C. 735. 29 Wilson v. Jackson's Stores (1905) 7 W. C. C. (Eng.) 122. The fact that a minor workman is earning the same wages as before the accident is not in itself conclusive as to the termination of his right to compensation. Malcolm v. Bowhill Coal Co. [1909-10] S. C. 447, 47 Scot. L. R. 449, 3 B. W. C. C. 562. 30 Ambridge v. Good (1912) 5 B. W. C. C. (Eng.) 691. primary proposition to be dealt with is what would have been his general earning capacity, not what would have been his earning capacity in the particular employment in which he then was.31 Where a work girl, seventeen years of age, who had injured her left hand, which resulted in the loss of the whole of her first and part of her second finger, had fully recovered so far as the nature of the injury allowed, and was offered light work by her employer at a wage considerably in advance of that which she was receiving at the time of her injury, the county court judge was not justified in continuing an award of compensation which in no way purported to be founded on the probable increase of her earnings under the proviso in schedule I. (16).32 32 Upon an application to review, the onus of proving that the workman's present condition justifies a change in the 31 Vickers v. Evans [1910] A. C. (Eng.) 444, 79 L. J. K. B. N. S. 954, 103 L. T. N. S. 292, 26 Times L. R. 548, 54 Sol. Jo. 651, 3 B. W. C. C. 403. The question to be determined is, what as a matter of fact is the sum which the minor workman would have been earning at the particular date had he not been injured. Malcolm v. Spowart [1913] W. C. & Ins. Rep. 523, 50 Scot. L. R. 823, 6 B. W. C. C. $56. 32 Clarke v. Knox (1913) 6 B. W. C. C. (Eng.) 695, 57 Sol. Jo. 793. 33 Gray v. Reed [1913] W. C. & Ins. Rep. (Eng.) 127, 108 L. T. N. S. 53, 6 B. W. C. C. 43. The burden is upon the employer to show such change of circumstances as to warrant the termination of the weekly payments. Cory v. Hughes [1911] 2 K. B. (Eng.) 738, 80 L. J. K. B. N. S. 1307, 105 L. T. N. S. 274, 27 Times L. R. 498, 4 B. W. C. C. 291; New Monckton Collieries v. Toone [1913] W. C. & Ins. Rep. (Eng.) 425, 109 L. T. N. S. 374, 57 Sol. Jo. 753, 6 B. W. C. C. 660. In the case of a payment fixed by a recorded memorandum of agreement, the burden is on the employer to prove affirmatively that the workman had recovered from his injuries. Quinn V. M'Callum [1909] S. C. 227, 46 Scot. L. R. 141. 34 M'Ghee v. Summerlee Iron Co. [1911] S. C. 870, 48 Scot. L. R. 807, 4 B. W. C. C. 424. 35 A county court judge, who has been asked by the workman for the restoration of a weekly payment, is not entitled upon such application to terminate the employ ers' liability where the employers have not asked for such termination in their answer. Henshaw v. Fielding (1914) 7 B. W. C. C. (Eng.) 650. 36 Where the application is for the reduction of compensation the county court judge award is upon the person seeking such change.33 Whenever the employer wishes to have the compensation ended or diminished, the burden is upon him to show a change of circumstances justifying it; but when the employer meets this burden by a certificate of the medical referee, then the burden is upon the workman to show that any supervening incapacity is due to the accident.34 The county court judge or other arbitrator is bound by the pleading and cannot give relief other than is asked for in the application for review or in the answer; 35 but an order to terminate the payments may be made although the application was to reduce the payments, where a further request to terminate was lodged during the proceedings.36 Findings of fact of the arbitrator upon a review will not be disturbed if there is any evidence to sustain them.37 The county court judge should state is justified in terminating it, where the whole of the applicant's evidence is directed towards making a case for terminating the payments, and the workman's medical evidence that the workman is not fit for continuous work is directed to and traverses that issue, and a further request for termination is lodged during the proceedings. Higgs v. Unicume [1913] 1 K. B. (Eng.) 595, 82 L. J. K. B. N. S. 369, 108 L. T. N. S. 169, [1913] W. N. 36, [1913] W. C. & Ins. Rep. 263, 6 B. W. C. C. 205. 37 McNaughton v. Cunningha:n [1910] S. C. 980, 47 Scot. L. R. 781, 3 B. W. C. C. 576, 577; Anderson v. Darngavil Coal Co. [1910] S. C. 456, 47 Scot. L. R. 342; Edmondsons v. Parker (1911) 107 L. T. N. S. (Eng.) 339, 5 B. W. C. C. 70; Jones v. Tirdonkin Colliery Co. (1911) 5 B. W. C. C. (Eng.) 3; Westcott & L. Lines v. Price [1912] W. C. Rep. (Eng.) 280, 5 B. W. C. C. 430; Giardelli v. London Welch S. S. Co. (1914) 7 B. W. C. C. (Eng.) 550. The reduction of the weekly compensation, due to a change of circumstances, does not present a question of law reviewable by the court of appeal. Taff Vale R. Co. v. Lane (1910) 3 B. W. C. C. (Eng.) 297. Where there is evidence to support the findings of the county court judge as to the condition of the workman the court will not interfere, although it may well be that if the county court judge had taken the opposite view the court could not possibly have interfered with his finding. Waal v. Steel (1915) 112 L. T. N. S. (Eng.) 846. The decision of the arbitrator that a workman who had lost the sight of one eye by an accident had recovered from his incapacity and was fit for work will not be disturbed, where there was evidence tending to support the finding and it was also in evidence that the applicant had been employed since the accident at his the grounds upon which he arrived at his findings.38 Several other decisions on this section of schedule I. but involving no general principle will be found discussed in the note below.39 As to the effect of refusal to have an operation performed upon the right of review, see notes 26 et seq. ante, 139. k. Payment of lump sum (¶ 17). There does not exist anywhere in the act, except in schedule I. ¶ 17, any right to award a lump sum.40 Under this paragraph the employer's right to redeem is absolute; 41 and the registrar is liable in damages to the employer for failure to record a memorandum of agreement as to a lump sum, where it is signed by the agent for the employer, although former work at the old rate of wages. Jones v. Anderson (1914) 84 L. J. P. C. N. S. (Eng.) 47, 112 L. T. N. S. 225, 31 Times L. R. 76, [1914] W. N. 432, 59 Sol. Jo. 159, [1915] W. C. & Ins. Rep. 151, 8 B. W. C. C. 2. The county court judge was justified in increasing from a nominal amount the compensation of a man who had lost an eye by accident, and consequently could not do his work properly and was reduced to the status of a casual laborer. Brown v. Thornycroft (1912) 5 B. W. C. C. (Eng.) 386. 38 Jones v. Tirdonkin Colliery Co. (1911) 5 B. W. C. C. (Eng.) 3. 39 In an application by an employer for review and ending of a weekly payment made under agreement, because the workman had recovered and had been certified as recovered by a medical practitioner selected by the employer, the sheriff substitute was not entitled to refuse the allowance of proof that the workman had not recovered. Johnstone v. Cochran (1904) 6 Sc. Sess. Cas. 5th series, 854, 41 Scot. L. R. 644, 12 Scot. L. T. 175. Where the workman made a definite claim and the employer admitted his liability but claimed that the workman had recovered his earning capacity upon a fixed date and asked the court to terminate the workman's right to compensation, the proper procedure was for the sheriff substitute not to grant a decerniture for the admitted liability and to hold that there was no dispute to be submitted to arbitration, but to make a finding that the workman was entitled to compensation to the amount of the admitted liability, and then to take up the question whether the compensation was to be ended or not at the date fixed by the employer. The fact that the workman made no claim for compensation beyond the date mentioned was not the equivalent of a finding that his right to compensation had terminated. Bowhill Coal Co. v. Malcolm form 53, which by rule 56a (4) must accompany such payment, requires that it shall be signed by the employers or their solicitors.42 The arbitrator in making an award of a lump sum has no power to make an optional award,43 and he has no jurisdiction over an application for the reduction of liability for weekly payments by the payment of a lump sum, where the applicant limits the lump sum to a certain amount.** There is no provision in the act for the review of an award of a lump sum in redemption of the weekly payment, since ¶ 16 applies to the review of weekly payments only.45 Unless the county court judge is satisfied that the incapacity of the workman is permanent, he is not, in awarding a (1909) S. C. 426, 46 Scot. L. R. 354, 2 B. W. C. C. 131. The county court judge was justified in finding that a workman was still entitled to compensation, where the workman was suffering from nystagmus and the county court judge found that his susceptibility to nystagmus was increased. Garnant Anthracite Collieries v. Rees [1912] 3 K. B. (Eng.) 372, 81 L. J. K. B. N. S. 1189, 107 L. T. N. S. 279, 5 B. W. C. C. 694. 40 Mulholland v. Whitehaven Colliery Co. [1910] 2 K. B. (Eng.) 278, 79 L. J. K. B. N. S. 987, 26 Times L. R. 462, 102 L. T. N. S. 663, 3 B. W. C. C. 317. 41 In Kendall v. Pennington (1912) 106 L. T. N. S. (Eng.) 817, [1912] W. C. Rep. 144, 5 B. W. C. C. 335, the court held that, as the employer's right to redeem is absolute, the county court judge is not justified in refusing the employer's application to redeem upon the ground that it would not be for the benefit of the workman to have so large a sum paid to him at once, and that provision is made in clause 17 for investing the sum for the benefit of the workman in such a case. 42 Thompson v. Ferraro (1913) 57 Sol. Jo. (Eng.) 479, 6 B. W. C. C. 461. 43 Calico Printers' Asso. v. Booth [1913] 3 K. B. (Eng.) 652, 82 L. J. K. B. N. S. 985, [1913] W. C. & Ins. Rep. 540, 109 L. T. N. S. 123, 6 B. W. C. C. 551. In this case the judge made an award that a weekly payment "may be redeemed." 44 Castle Spinning Co. v. Atkinson [1905] 1 K. B. (Eng.) 336, 74 L. J. K. B. N. S. 265, 53 Week. Rep. 360, 92 L. T. N. S. 147, 21 Times L. R. 192. 45 Marshall v. Prince [1914] 3 K. B. (Eng.) 1047, 30 Times L. R. 654, 137 L. T. Jo. 316, 58 Sol. Jo. 721, 7 B. W. C. C. 755. The applicant in this case was an infant and the court of appeal held that he was in no better position than an adult so far as procuring a review of an award of a lump sum was concerned. |