BabNhill, J.
The 'Workmen’s Compensation Act, Oh. 120, P. L., 1929, as amended (Michie’s N. C. Code of 1939, Ch. 133 [a]), provides primarily for four several types of compensation to be paid to employees covered by the Act for injuries arising out of and in the course of their ■employment. They are:
1. Compensation for disability, dependent as to amount upon whether the injury produces a permanent total, a permanent partial, a total temporary or a partial temporary incapacity. Sec. 29 and 30.
2. Compensation in stipulated amounts for loss of some part of the body such as a finger or toe, a leg or arm. Sec. 31.
3. Compensation for death. Sec. 29.
4. Compensation for bodily disfigurement. Sec. 31.
The claim here made comes within the first class embracing injuries which produce a permanent partial incapacity. The compensation is to be computed upon the basis of the difference in the average weekly earnings before the injury and the average weekly wages
he is able io earn
thereafter. Sec. 30.
The general purpose of the Act, in respect to the first class, is to substitute, in cases to which it is applicable, for common-law or statutory rights of action and grounds of liability a system of money payments based upon the actual loss of wages by way of relief for workers for injuries received in the course of and arising out of their employment.
Duart v. Simmons,
231 Mass., 313, 121 N. E., 10;
Centlivre Beverage Co. v. Boss,
125 N. E., 220. To guard against the possibility that an injured employee may refuse to work when, in fact, he is able to work and earn wages, and thus increase or attempt to increase the amount of his compensation, the benefits of the Act are denied to him so long as he refuses, without justification, to accept employment procured for him suitable to his capacity. Sec. 32.
All payments are by way of financial relief for inability to earn wages, or for deprivation of support from wages theretofore received. “Compensation,” in the connection in which it is used in the Act, means a'money relief afforded according to tiie scale established and for the persons designated in the Act.
Duart v. Simmons, supra; Centlivre Beverage Co. v. Ross, supra.
The statute provides no compensation for physical pain or discomfort. It is limited to the loss of ability to earn. “The loss of his capacity to earn ... is the basis upon which his compensation must be based.” Sec. 30.
Gillen v. Ocean, Etc. Corp.,
215 Mass., 96, 102 N. E., 346, L. E. A., 1916 A,- 371;
Centlivre Beverage Co. v. Boss, supra.
It is only intended to furnish compensation for loss of earning capacity. Without such loss there is no provision for compensation in Section 30, although even permanent physical injury may have been suffered.
Weber v. American Etc. Co.,
95 Atl., 603, Ann. cases 1917 E., 153.
What, then, is the meaning of “disability” as used in the statute ? It is defined in the Act: “The term ‘disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” Sec. 2 (i).
The disability because of the injury is to be measured by the capacity or incapacity of the employee to earn the wages he was receiving at the time of the injury. It is not his inability to do the identical kind or
type of work as theretofore. That is to say, the right to compensation is not dependent upon the inability to do substantially the same work as before the injury. It is confined to the loss of ability to earn
in the same or any other employment. Smith v. Swift & Co.,
212 N. C., 608, 194 S. E., 106.
In short, under our Act, wages earned, or the capacity to earn wages, is the test of earning capacity, or, to state it differently, the diminution of the power or capacity to earn is the measure of compensability.
It follows that, as the claimant is now earning wages in an amount equal to those received by him prior to his injury, he has failed to show any compensable injury or incapacity.
However urgently he may insist that he is “not able to earn” his wages, the fact remains that he is receiving now the same wages he earned before his injury. That fact cannot be overcome by any amount of argument. It stands as an unassailable answer to any suggestion that he has suffered any loss of wages within the meaning of the Act.
The contention of the appellant that
Smith v. Swift & Co., supra,
is distinguishable in that in that case the employee secured employment from another employer cannot be sustained. The statute, sec. 2 (i), is clear. There is no “disability” if the employee is receiving the same wages in the same or any other employment. That “in the same” employment he is not required to perform all the physical work theretofore required of him can make no difference. Even so, if this be not “the same employment” then it clearly comes within the term “other employment.” To remove the employment from one classification necessarily shifts it to the other. Furthermore, there is no language used in this section or in any other part of the statute which even suggests that “other employment” must be with a different employer.
But the appellant contends that he is not now earning his wages; that they are paid to him “because of his long service and the sympathetic attitude of his employer.” Hence, he says, he is not now “able to earn” and is not earning any wage. Conceded,
arguendo,
the final result is the same. While the employer here, as is ordinarily the case, has an insurance carrier standing by under contract to pay whatever it is called upon to pay, it is the one primarily liable. It is paying and the employee is receiving more than the assessable 'amount of compensation. What boots it whether the “wages” received by him are paid for services rendered or as compensation for the injury received? In either event, under the express terms of the Act, he cannot recover additional compensation.
Decisions of other jurisdictions on the question here presented are by no means uniform. This lack of accord is due, in very large measure, to the difference in the phraseology of the statutes under consideration
in defining disability and in prescribing tbe standards or tests of compensability.
Hence, it is needless for us to undertake to analyze and differentiate the several cases cited and relied on by appellant. Suffice it to say that no decision dealing with identical language in which a different con-elusion was reached has been called to our attention. See, however, Anno. 17 A. L. R., 205, and Anno. 118 A. L. R., 731.
To protect the employee against the possibility that the employer might, after the expiration of 12 months, see. 24, discontinue the employment and thus defeat the rights of the employee, the commission, after finding the existence of the disability, directed that an award issue subject to specified limitations. The court below entered judgment striking this provision and affirming the judgment of the commission as thus modified.
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BabNhill, J.
The 'Workmen’s Compensation Act, Oh. 120, P. L., 1929, as amended (Michie’s N. C. Code of 1939, Ch. 133 [a]), provides primarily for four several types of compensation to be paid to employees covered by the Act for injuries arising out of and in the course of their ■employment. They are:
1. Compensation for disability, dependent as to amount upon whether the injury produces a permanent total, a permanent partial, a total temporary or a partial temporary incapacity. Sec. 29 and 30.
2. Compensation in stipulated amounts for loss of some part of the body such as a finger or toe, a leg or arm. Sec. 31.
3. Compensation for death. Sec. 29.
4. Compensation for bodily disfigurement. Sec. 31.
The claim here made comes within the first class embracing injuries which produce a permanent partial incapacity. The compensation is to be computed upon the basis of the difference in the average weekly earnings before the injury and the average weekly wages
he is able io earn
thereafter. Sec. 30.
The general purpose of the Act, in respect to the first class, is to substitute, in cases to which it is applicable, for common-law or statutory rights of action and grounds of liability a system of money payments based upon the actual loss of wages by way of relief for workers for injuries received in the course of and arising out of their employment.
Duart v. Simmons,
231 Mass., 313, 121 N. E., 10;
Centlivre Beverage Co. v. Boss,
125 N. E., 220. To guard against the possibility that an injured employee may refuse to work when, in fact, he is able to work and earn wages, and thus increase or attempt to increase the amount of his compensation, the benefits of the Act are denied to him so long as he refuses, without justification, to accept employment procured for him suitable to his capacity. Sec. 32.
All payments are by way of financial relief for inability to earn wages, or for deprivation of support from wages theretofore received. “Compensation,” in the connection in which it is used in the Act, means a'money relief afforded according to tiie scale established and for the persons designated in the Act.
Duart v. Simmons, supra; Centlivre Beverage Co. v. Ross, supra.
The statute provides no compensation for physical pain or discomfort. It is limited to the loss of ability to earn. “The loss of his capacity to earn ... is the basis upon which his compensation must be based.” Sec. 30.
Gillen v. Ocean, Etc. Corp.,
215 Mass., 96, 102 N. E., 346, L. E. A., 1916 A,- 371;
Centlivre Beverage Co. v. Boss, supra.
It is only intended to furnish compensation for loss of earning capacity. Without such loss there is no provision for compensation in Section 30, although even permanent physical injury may have been suffered.
Weber v. American Etc. Co.,
95 Atl., 603, Ann. cases 1917 E., 153.
What, then, is the meaning of “disability” as used in the statute ? It is defined in the Act: “The term ‘disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” Sec. 2 (i).
The disability because of the injury is to be measured by the capacity or incapacity of the employee to earn the wages he was receiving at the time of the injury. It is not his inability to do the identical kind or
type of work as theretofore. That is to say, the right to compensation is not dependent upon the inability to do substantially the same work as before the injury. It is confined to the loss of ability to earn
in the same or any other employment. Smith v. Swift & Co.,
212 N. C., 608, 194 S. E., 106.
In short, under our Act, wages earned, or the capacity to earn wages, is the test of earning capacity, or, to state it differently, the diminution of the power or capacity to earn is the measure of compensability.
It follows that, as the claimant is now earning wages in an amount equal to those received by him prior to his injury, he has failed to show any compensable injury or incapacity.
However urgently he may insist that he is “not able to earn” his wages, the fact remains that he is receiving now the same wages he earned before his injury. That fact cannot be overcome by any amount of argument. It stands as an unassailable answer to any suggestion that he has suffered any loss of wages within the meaning of the Act.
The contention of the appellant that
Smith v. Swift & Co., supra,
is distinguishable in that in that case the employee secured employment from another employer cannot be sustained. The statute, sec. 2 (i), is clear. There is no “disability” if the employee is receiving the same wages in the same or any other employment. That “in the same” employment he is not required to perform all the physical work theretofore required of him can make no difference. Even so, if this be not “the same employment” then it clearly comes within the term “other employment.” To remove the employment from one classification necessarily shifts it to the other. Furthermore, there is no language used in this section or in any other part of the statute which even suggests that “other employment” must be with a different employer.
But the appellant contends that he is not now earning his wages; that they are paid to him “because of his long service and the sympathetic attitude of his employer.” Hence, he says, he is not now “able to earn” and is not earning any wage. Conceded,
arguendo,
the final result is the same. While the employer here, as is ordinarily the case, has an insurance carrier standing by under contract to pay whatever it is called upon to pay, it is the one primarily liable. It is paying and the employee is receiving more than the assessable 'amount of compensation. What boots it whether the “wages” received by him are paid for services rendered or as compensation for the injury received? In either event, under the express terms of the Act, he cannot recover additional compensation.
Decisions of other jurisdictions on the question here presented are by no means uniform. This lack of accord is due, in very large measure, to the difference in the phraseology of the statutes under consideration
in defining disability and in prescribing tbe standards or tests of compensability.
Hence, it is needless for us to undertake to analyze and differentiate the several cases cited and relied on by appellant. Suffice it to say that no decision dealing with identical language in which a different con-elusion was reached has been called to our attention. See, however, Anno. 17 A. L. R., 205, and Anno. 118 A. L. R., 731.
To protect the employee against the possibility that the employer might, after the expiration of 12 months, see. 24, discontinue the employment and thus defeat the rights of the employee, the commission, after finding the existence of the disability, directed that an award issue subject to specified limitations. The court below entered judgment striking this provision and affirming the judgment of the commission as thus modified. The exception to the judgment challenges the correctness of this ruling. It must be held for error.
The commission adjudged the rights and liabilities of the parties. It then directed compensation at the statutory rate “at any time it is shown that the claimant is earning less,” etc., during the statutory period of 300 weeks. By this order the commission, in effect, retained jurisdiction for future adjustments. In so doing it did not exceed its authority.
Thigpen v. Ins. Co.,
204 N. C., 551, 168 S. E., 845, cited and relied upon by the court below involved a claim under the permanent disability clause of an insurance policy. It is not controlling here.
The claimant likewise contends that the court-below erred in overruling his exception to the refusal of the Industrial Commission to allow compensation for disfigurement. Such compensation is not required by the Act. Its allowance or disallowance is within the legal discretion of the commission. Sec. 31. See, also, Ch. 164, P. L., 1931. Furthermore, it is not made to appear that claimant had sustained a disfigurement within this provision of the statute.
To disfigure means to mar, to deface, to render less beautiful, as to disfigure the landscape with billboards. Webster’s New International Dictionary. A disfigurement, then, is a blemish, a blot, a scar or a mutilation that is external and observable, marring the appearance.
The terms “facial,” “head,” “bodily” and “member or organ,” are used in connection with the term disfigurement. They are limited by the manner of their use and must be so construed. Being so construed “any member or organ” includes only those parts of the body which are subject to disfigurement. There must be an outward observable blemish, scar or mutilation which tends to mar the appearance of the body, and, under the express terms of the Act, it must be serious. For instance, a puncture of the ear drum or the removal of a kidney would result in injury, perhaps serious, and yet no disfigurement would result.
This view is justified by recent amendments to this section. See , H. B. 272, General Session Laws of 1943, C. 502.
Apparently this is the construction the commission has adopted and consistently followed. “To warrant compensation for disfigurement it must be so permanent and serious that it, in'some manner, hampers or handicaps the person in his earning or in securing employment, or it must be such as to make the person repulsive to other people.”
Poston v. Amer. Enka Gorp.,
1 I. 0., 53. See other decisions cited in 4 'Schneider, Workmen’s Compensation Statutes, 2829.
The conclusions and award of the Industrial Commission should be affirmed without qualification. Judgment must be entered accordingly.
Modified and affirmed.