The workman is a common laborer, and the trial court has determined that while he could not do hard work, yet he had lost only forty percent of his earning capacity. This finding and the evidence satisfies me that he can still do the work of a common laborer, though not "hard work." The finding of the court mentioned is supported by substantial evidence, and therefore I agree that the judgment of the district court should be affirmed.
In my opinion it is not necessary to construe the words "permanent, total disability" as used in the Workmen's Compensation Act. This question has been posed in at least three cases (Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000; New Mexico State Highway Dept. v. Bible, 38 N.M. 372, 34 P.2d 295; Bubany v. New York Life Ins. Co., 39 N.M. 560, 51 P.2d 864) and not decided because unnecessary to a decision in any of them. While the question was *Page 252 raised in this case, it is unnecessary to a decision and I see no reason for deciding it at this time.
There is much confusion among the authorities as to the meaning of this phrase. It is held by some courts that a workman is totally disabled if he cannot perform the duties for which he had fitted himself by training and experience, or work of a similar character, and not whether he can engage in some other occupation foreign to his experience and training. Thompson v. Leach McClain, La. App., 11 So. 2d 109. Other courts hold it to mean the loss of one's earning power as a workman whether manifested by inability to perform work obtainable, or inability to secure work on that account. Consolidation Coal Co. v. Ditty, 286 Ky. 395,150 S.W.2d 672. Another court holds that it must appear from the evidence either that the workman is not able to do even light work of a general character and that his earning capacity is entirely destroyed, or that remunerative employment is not available to him. Hughes v. H. Kellogg Sons, 139 Pa. Super. 580, 13 A.2d 98.
Our workmen's compensation statutes are copied largely from the laws of Colorado, and the Supreme Court of that state doubts if any of these rules are satisfactory for all cases. That court said, in Globe Indemnity Co. v. Industrial Commission of Colorado, 67 Colo. 526, 186 P. 522, 523:
"It appears that the rule contended for by plaintiffs in error for determining the `impairment of earning capacity of claimants,' and which we will designate as `Rule No. 1,' is, `The degree of disability is to be determined by the claimant's general impairment of earning capacity without respect to any particular kind of labor,' to support which the following, among other authorities, are cited: Grammici v. Zinn, 219 N.Y. 322,114 N.E. 397; Boscarino et al. v. Carfagno Dragonette, Inc.,220 N.Y. 323, 115 N.E. 710, Ann.Cas. 1918A, 530; Modra v. Little,223 N.Y. 452, 119 N.E. 853, Ann.Cas. 1918D, 177. Whereas, the rule contended for by defendants in error, and which we will designate as `Rule No. 2,' is, `The degree of disability is to be determined by the claimant's impairment of earning capacity as it relates to the kind of labor at which he was employed when injured,' to support which the following, among other authorities, are cited: Duprey v. Maryland Cas. Co.,219 Mass. 189, 106 N.E. 686; Gillen v. O.A. G. Corp., 215 Mass. 96,102 N.E. 346, L.R.A. 1916A, 371. Both of these contentions may be wrong, as a simple illustration will demonstrate.
"An expert engraver, past middle age, engaged for years in that business, commanding high wages thereat and having no other special skill and no other regular occupation, is temporarily employed at very low wages carrying brick and mortar in a wheelbarrow in building construction. *Page 253 While so employed he sustains an injury to his right hand, trivial in its effect to incapacitate him for general work, but making it wholly impossible for him ever again to secure employment as an engraver. Both the language and spirit of the act would be violated in his case by the application of Rule No. 1.
"The same man, under the same circumstances, engaged in the same occupation, sustains an injury to his foot of such a character as to permanently incapacitate him from running a wheelbarrow, but having no effect whatever upon his earning capacity as an engraver. Both the language and spirit of the act would be violated in his case by the application of Rule No. 2.
"We are of the opinion that the widest possible discretion is vested in the commission to determine whether, under a given set of circumstances and a particular state of the evidence, the first or second rule, or a combination of both, should be applied. Age, education, training, general physical and mental capacity, and adaptability, may, and often should, be taken into consideration in arriving at a just conclusion as to the percentage of impairment of earning capacity."
I do not pass upon the question; but I do not subscribe to the doctrine stated by Mr. Justice HUDSPETH, "This and other provisions of the statute clearly indicate that the proper test is not whether the injured workman is able to do the same kind of work as he did before the injury, but whether he is able to doany kind of work."
That this statement is too broad is quite evident. I know of no case going so far. The workman would have to be paralyzed before it could be said that he was totally disabled. See Cleland v. Verona Radio, 130 N.J.L. 588, 33 A.2d 712.
SADLER, C.J., and LUJAN, J., concur. *Page 254