The reasons of appeal assume that the plaintiff's incapacity is partial, and the Superior Court in its memorandum states that counsel so agreed. There is, however, no such finding by the commissioner, and the award of weekly compensation equal to one half of the plaintiff's average weekly earnings at the time of his injury, could not lawfully have been made except in the case of total incapacity. Nevertheless, the injury in question is not one of those enumerated in § 5352, and so far as the commissioner's jurisdiction to render an award of weekly compensation for a fixed period of time is concerned, it makes no difference whether the incapacity is partial or total.
No express authority for such an award can be found in the statutes. The plaintiff's contention is that the commissioner could have allowed him a lump sum under § 5367, and therefore could reach the same result by allowing him a lump sum divided into thirty weekly payments. We think § 5367 did not authorize the commissioner to award a single lump sum in this case. The authority given by that section is, not to award by way of compensation such a lump sum as the commissioner may deem just, but to "approve or direct the commutation, in whole or in part, of weekly compensations under the provisions of this chapter into monthly or quarterly payments, or into a single lump sum." The authority to commute the weekly compensations already provided for in the Act, into monthly payments, or into a single payment, carries its own limitations on its face. If the period for which the weekly *Page 675 compensations is to be continued is a fixed period of time, as it is in the cases specifically enumerated in § 5352, and in cases of permanent total disability, the award can be commuted into a single lump sum without changing its value to the plaintiff or its cost to the defendant. But in all other cases the duration and amount of the weekly payments is dependent on the continuance and the degree of the plaintiff's incapacity. Such payments may, for the time being, be commuted into monthly or quarterly payments, but they cannot be commuted into a single lump sum without violating the express requirement of § 5367, that "in any such case of commutation, a true equivalence of value shall be maintained, with due discount of sums payable in the future." Many other provisions of the statute also express its manifest intent, that the injured employee shall in every adjudicated case receive no more and no less than the statutory compensation, and that in every settlement by special agreement or substitute system of compensation he shall receive no less than the statutory compensation. In all cases not covered by the schedule of injuries enumerated in § 5352, the statute requires that the weekly compensation, or its true equivalent in value, when commuted into monthly or quarterly payments, shall continue during the period of total or partial incapacity, not exceeding five hundred and twenty weeks. In such cases the statute makes the future compensation dependent on the actual continuance and degree of incapacity of the plaintiff; and the commissioner has no power to award compensation on any other terms. He is not to award such damages as he deems just, but to determine what the facts are, and then apply the statutory measure of compensation to the particular case.
There is error, and the cause is remanded to the Superior Court with directions to set aside the judgment