I am unable to concur in the foregoing opinion because, as I view the matter, the employer, upon the facts stated in the certified question answered in that opinion was not in default in the payment of unemployment compensation at the time when it filed with the director of labor its petition for a review of the preliminary agreement.
It should be noticed that no compensation, under art. II, § 12 of the workmen's compensation act, for any specific injury to the employee is involved in this cause, but only general unemployment compensation.
It should also be kept in mind in answering this certified question that, as stated in the opinion of the court, it was provided in P.L. 1941, chap. 1064, that on a petition for review, such as was filed in this cause, the director of labor may "make such other order as the justice of the case may require." That amendment to the workmen's compensation act went into effect before the filing of the employer's petition for review by which this cause was begun.
It is my conclusion that justice in the instant cause clearly requires that the employer should not be held to be in default, and therefore not entitled even to be heard on its petition for review, solely because, for the period while the employee was again in its employ and receiving wages at least equal to his former wages, it did not also pay him unemployment compensation.
As to the three cases reported in 65 R.I. and relied on, in the instant cause, by the director of labor in his decision and by the court in its opinion, I have not found any statement which in my judgment is inconsistent with my conclusion above expressed. *Page 385
Indeed it seems to me that there is some support for this conclusion in the following language in the opinion in theHingeco case at page 221: "One of the objects of the act is to protect an injured employee against the consequences that ordinarily follow an impairment or destruction of earning capacity by substituting the benefits which the act grants for the weekly wages that such employee would have earned but for his disability." (italics mine)
So also in the opinion in the Carpenter case it was stated, at page 196, that the main question was whether an agreement for compensation, entered into by the employer and the employee and approved by the director of labor in accordance with the act, might be terminated by the employer without filing with the director of labor, in accordance with the act, a petition for a review of the agreement on the ground that the employee's incapacity had ended. We held that it could not and on page 197 we said: "It does not appear from the evidence whether petitioner's employer was ready to reemploy him on December 6, 1937, at his regular employment and wages, nor does it appear whether any other employment was available to him."
I have not found any reported case in this state or elsewhere which seems to me to support the opinion of the court in the instant case. On the other hand this court in Harvey v.Brown, 56 R.I. 34, at page 37, said: "The fundamental principle of the Workmen's Compensation Act is that the benefits which it grants to an injured workman or to his dependents shall be asubstitute for the weekly wages that the workman would have earned but for his disability or death resulting from an accident in the course of his employment. The object of this law is to provide weekly payments to the injured workman or to his dependents, irrespective of any question of negligence, as a protection against the consequences that ordinarily follow an impairment or destruction of earning power." (italics mine) See also Weber v. American Silk Spinning Co., 38 R.I. 309, at 315. *Page 386
In Perkins's Case, 278 Mass. 294, the facts are stated on page 295 as follows: "The employee received on December 18, 1928, an injury arising out of and in the course of his employment by a subscriber. He entered into an agreement in writing with the insurer which was duly approved by the Industrial Accident Board, wherein it was stated that his average weekly wage was $42 and the compensation due per week $18. He was paid that compensation weekly up to November 15, 1929, when it was reduced to $4.67 per week based on his earnings. He desired to secure a greater partial rate of compensation and alleged that his average weekly wages for a year previous to his injury were in excess of $42. He actually returned to work on September 12, 1929, and the insurer contended that there had been an overpayment."
At page 301, the court says: "The average weekly wage of the employee since his return to work in September, 1929, exceeded the average weekly wage at the time of his injury, as stated in the written memorandum of agreement approved by the department. Therefore, he was entitled to no payments since his return to work. He was in truth paid compensation by the insurer from his return to work until November 15, 1929, at the rate of $18 per week. The insurer contended that there had been this overpayment at the hearing before the board member, as stated in his report. It is manifest from what has already been decided that this was an overpayment."
The conclusion of the supreme judicial court is set forth on page 302 as follows: "Since it was apparent that the employee had received the overpayment already stated, and since the insurer had seasonably raised that question, manifest justice required that the overpayment ought to be returned." That case seems to me to strongly support the position of the petitioner in the instant cause.
In the New York case of Matter of Sullivan v. Seely Son,Inc., 226 N.Y. App. Div. 629, the employer, after a disabling accidental injury suffered by the employee in the course of his employment, continued to pay him his full salary during *Page 387 the period of his disablement. The State Industrial Board, on a petition by the employee, awarded him compensation at the rate of $25 per week during that period.
This decision was reversed on appeal, the court saying, at page 630, as to the award: "This would seem to pervert the purpose of the statute which is to compensate the injured workman for loss of earning power (Matter of Marhoffer v. Marhoffer,220 N.Y. 543), and to protect him against destitution during the period of disability. `The act was not intended as a source of profit to the employee or as a means of punishment of the employer . . .'." At page 631 the court added: "Having freely consented to accept a substantial benefit from his employer, all equitable rules would hold the claimant estopped from recovering another sum not based on a loss arising during the term of disability."
In Matter of Beach v. Travelers Ins. Co., 233 N.Y. App. Div. 55, at page 57, the same court says: "An employee is not entitled to compensation for the period during which he has received full wages, since he has suffered no loss of earnings." See also Ulmer v. E.I. Du Pont De Nemours Co., 190 So. 175 and Sayre v. Textile Machine Works, 129 Pa. Sup. Ct. 520.
After consideration of the pertinent language of the unemployment compensation act of Rhode Island, including the statement of the purposes of its enactment, and after consideration of the relevant cases in this state and elsewhere which have come to my attention, I am of the opinion that the certified question now before us should be answered in the negative.
BAKER, J. concurs in the opinion of Moss, J.