Hasson's Case

Lummus, J. The employee sustained a hernia on June 13, 1929, while the Commercial Casualty Insurance Company was the insurer. For this he was paid weekly compensation for total incapacity amounting to $753.43, which was discontinued April 2,1930. In June, 1930, he resumed work for the same employer, which had then become insured by the Merchants Mutual Casualty Company. He became disabled by hernia on June 20, 1930, and this, the Industrial Accident Board found, was not a new injury but a recurrence of the old one. The board awarded against the Commercial Casualty Insurance Company compensation for total incapacity at the maximum rate of $18 a week from June 20, 1930, to July 1, 1931, amounting to $966.86, and for partial incapacity at the same rate from July 1,1931. The employee received $2,759.14 for partial incapacity. If it is proper to combine the amounts paid the employee for total and for partial incapacity, the sum of $4,479.43 already paid leaves only $20.57 to be paid in order to reach the statutory maximum of $4,500. G. L. (Ter. Ed.) c. 152, §§ 34, 35. The Superior Court made a decree for the payment of only $20.57 by the Commercial Casualty Insurance Company, and the employee appealed. The employee does not now argue that the later insurer is liable. See Crowley’s Case, 287 Mass. 367, 371. He does contend that G. L. (Ter. Ed.) c. 152, §§ 34, 35, are independent of each other, and that for the same injury an employee may obtain as a maximum $4,500 for total incapacity in addition to $4,500 for partial incapacity, instead . of being limited to $4,500 in the aggregate. There has always been a relation between the maximum amounts allowed for total and for partial incapacity. By St. 1911, c. 751, Part II, §§ 9, 10, the maximum compensation for total incapacity was fixed at $3,000, while the maximum compensation for partial incapacity, $10 a week for [247] three hundred weeks, amounted to the same sum. When by St. 1914, c. 708, §§ 4, 5, the number of weeks was made five hundred for each class of incapacity, the maximum amount was expressly made $4,000 in each section. St. 1919, cc. 197, 205, raised the maximum weekly compensation in each class to $16 and did not limit the number of weeks for which partial compensation could be allowed, but retained the maximum of $4,000 in each section. St. 1927, c. 309, §§ 7, 8, made the weekly maximum $18 and the total amount $4,500 in each section, and so the law remains. Only a plain indication of legislative purpose, which we do not find in the statute, could require us to attribute to the Legislature an intent to give much greater compensation to an employee whose incapacity was divided between total and partial incapacity, than to another who was totally and permanently disabled from the moment of the injury. We think that the decree, limiting the aggregate compensation for total and partial compensation to $4,500, was right. This conclusion finds support in the analogy of Sinclair's Case, 248 Mass. 414, 420. Decree affirmed.