HILL
v.
DU BOSE et al.
No. 384.
Supreme Court of North Carolina.
November 7, 1951.*372 Guy Elliott, Kinston, for plaintiff, appellee.
Smith, Sapp, Moore & Smith, Greensboro, for defendants, appellants.
DEVIN, Chief Justice.
It is apparent from an examination of the findings and award of the Industrial Commission, which were in all respects affirmed by the court below, that the award of compensation now made was based upon a finding as to the amount the claimant had earned since the date on which total permanent disability had ceased, rather than upon his capacity or ability to earn.
The statute, G.S. § 97-2(i), defines disability as meaning "incapacity because of injury to earn the wages * * * the employee was receiving at the time of injury in the same or any other employment." The rule of compensation for partial disability prescribed by G.S. § 97-30 is that the employer shall pay "to the injured employee during such disability, a weekly compensation equal to 60 per centum of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter".
In Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438, 440, it was said: "The disability of an employee because of an injury is to be measured by his capacity or incapacity to earn the wages he was receiving at the time of the injury. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865; Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265. Loss of earning capacity is the criterion." Compensation must be based upon loss of wage-earning power rather than the amount actually received. It was intended by the statute to provide compensation only for loss of earning capacity. Hence, the finding that claimant had earned $7 per week for the period from November 25, 1949, to July 18, 1950, was not the proper basis for determining the award under the statute.
The appellee concedes that in accord with the decision in Dail v. Kellex Corp., supra, the award of the Commission should be modified by eliminating the requirement that the case be held open for 300 weeks.
While in other respects the findings of the Industrial Commission were supported by the evidence, we think in the particulars pointed out there was error in affirming the conclusions an award of the Commission, and accordingly the case is remanded to the end that sufficient findings, and proper conclusions and award thereon may be made by the Industrial Commission as the basis for judgment.
Error and remanded.