The jury found that the claimant in this case is now permanently and totally disabled because of the progressive effect of inhaling chlorine gas in the course of his employment six years ago. He could have filed a claim for temporary partial disability for the loss of six weeks following the accident, and he could probably have claimed permanent partial disability (loss of theoretical earning capacity) within a year from the time he returned to work. One reason why he did not do so was because he was receiving the same or greater wages.
I question whether the statute authorizes or requires him to file a claim for permanent total disability before it occurs. But assuming that it does, I think there was evidence in this case from which the jury could find, as they did, that the employer is estopped from setting up this defense by continuing him on the pay roll, with full knowledge of the accident and its probable effects. If authority in the superintendent to waive the filing of the claim cannot be implied, at least we may imply the authority to hire, to assign to light work, to transport to work, to increase his pay, all of which operated to lull him into a belief that filing a claim was unnecessary at that time.
I think the judgment should be affirmed. *Page 634