Carr's, Inc. v. Industrial Commission

The following opinion was filed February 13, 1940: Fowler, J. This is a workmen’s compensation case. The commission awarded temporary compensation to the claimant, a clerk in a grocery store, who sustained an injury in the course of her employment. The only question involved is whether the compensation was computed on the proper basis. The commission based the computation on the earnings of full-time women employees who regularly worked forty-eight hours per week. The claimant and some forty *468 other employees of the employer were regularly employed on Saturdays and Wednesday afternoons only. These employees regularly worked ten hours on Saturdays and five hours on Wednesday. They also worked when called upon at other times, but their employment was limited to twenty-three hours per week. The respondents claim that these employees constituted a separate class, and their compensation should be based on the basis of full-time employment for twenty-three hours per week. The claimant was temporarily totally disabled for a considerable period of time before hearing was had as to the amount of the weekly award. Up to that time she had been paid $7.35 per week. Claim was made that she was entitled to more, and a hearing was had to determine the correct amount. The examiner who conducted the hearing computed the compensation under par. (c) of sub. (1) of sec. 102.11, Stats., and on the basis of earnings of full-time women workers who worked forty-eight hours per week and at claimant’s wage of thirty cents an hour held the claimant’s “average weekly earnings” under that paragraph to- be $14.40 a week. An award was made of seventy per cent of this amount or $10.08. On review by the commission the commission concluded that the compensation should be computed under par. (a) of said subsection, which they interpreted, on the basis that full-time women employees worked forty-eight hours per week, as giving her “average weekly earnings” of $3 per day for 4.8 days per week, and reached the same result as the examiner whose award they confirmed. The employer and its insurer brought action to review the award. The circuit court held with the commission that the award should be computed under par. (a), but interpreted the paragraph as requiring computation of the award at seventy per cent of the minimum “average weekly earnings” as fixed by sub. (1) of the statute, because twenty-three hours per week was the full working time of the members of the class of employees *469 of which the claimant was a member. The actual full-time earnings of such member at claimant's wage of thirty cents per hour would be 2.3 times her daily wage of $3 or $6.90. This is less than the minimum “average weekly earnings” which under such minimum is $10.50 per week, seventy per cent of which would give the claimant a weekly compensation of $7.35. The statutes fix the award per week for total temporary disability at seventy per cent of the “average weekly earnings” of the employee. Sec. 102.43 (1), Stats. The “average weekly earnings” of the employee are fixed by sec. 102.11, Stats. It is agreed by the parties that the computation of the weekly award must be based on either par. (a) or par. (c) of sub. (1) of this section. These paragraphs are set out in the margin. 1 Inspection of par. (c) discloses *470 that the claimant’s award is not to be determined by this paragraph. She has fixed earnings, normal full-time days are maintained in the employment in which she worked, and there is no other reason why her compensation cannot be computed under par. (a), as inspection of par. (a) discloses that every fact involved in computing an award under par. (a) exists in her case. We will rest this point upon this statement without reiterating and allocating those facts. The award should be computed under par. (a). It being established that the award involved should be computed under par. (a) we have to consider whether the commission correctly interpreted that paragraph in applying it to the factual situation. Inspection of the paragraph with the factual situation in mind will disclose that the commission computed the award under the last sentence of that paragraph. In so doing, they construed the language of the sentence “the number of days . . . normally worked per week ... in the business operation of the employer for the particular employment in which the employee was engaged” as referring to the number of days normally worked by full-time women employees who- worked 4.8 days per week. The respondents contend that under the factual situation involved the language should be referred to the number of days per week, or 2.3 days, normally worked by the forty employees of which claimant was one who worked that number of days when they worked the full time which they were permitted to work. By the commission’s interpretation the “average weekly wage” is 4.8 times $3 or $14.40, and the award is seventy per cent of that or $10.08. By the respondents’ interpretation and that of the circuit court the commission should have applied their formula for determining the “aver *471 age weekly wage” by multiplying the daily wage of $3 by 2.3, the full time the forty employees might work, which would give $6.90 as the full-time earnings per week of the forty. But these actual weekly earnings being less than the $10.50 fixed by sub. (1) of the statute as the minimum average weekly earnings, the award should be seventy per cent of that sum.or $7.35. The decision of the case depends on what is meant, under the facts of this case, by the phrase “the particular employment” in which the claimant was engaged at the time of her injury — whether “the particular employment” was that of a clerk working at most 2.3 days a week or that of a clerk working 4.8 days a week. The claimant’s work was the same as that of women workers who worked forty-eight hours per week. Both waited on trade. But there is no doubt under the undisputed evidence that there were two distinct classes of employees: One when working full time engaged “in the business operation of the employer,” working 4.8 days a week and the other, comprising forty or more, working 2.3 days per week when working their full time. The latter were placed and carried in a separate class by the Industrial Commission itself, and at the commission’s suggestion, to avoid complications in computing unemployment compensation benefits which the commission administers. The group is recognized as a group or class of employees by the unemployment compensation department of the commission and by the labor union with which the employees of the instant employer are affiliated. They are given the special name of part-time employees by the union and the wage of the women members of the class is under agreement with the union fixed at thirty cents an hour. The union dues of these part-time workers are twenty-five cents per week. Those of full-time workers are $1.50 per month. This may not necessarily be controlling, but the employees who are limited to twenty-three hours a week are treated as a separate class of workers *472 by everybody concerned, just as other workers are treated as a separate class when the basis of their classification is the nature of their work. Perhaps the most reasonable basis for determining the meaning of the phrase “the particular employment” is to consider the “fundamental idea” of the Workmen’s Compensation Act, which is “to award compensation for. a wage loss suffered either by disability, total or partial, permanent or temporary.” North End Foundry Co. v. Industrial Comm. 217 Wis. 363, 373, 258 N. W. 439. That idea was theretofore applied in Allis-Chalmers Mfg. Co. v. Industrial Comm. 215 Wis. 616, 255 N. W. 887, wherein the earnings of the employees in regular “staggered” part-time employment instead of those who worked continuously in regular full-time employment were taken as the basis of compensation to a workman in the staggered employment. If part-time regular employment caused by “staggering” workmen is the proper basis of computing earnings, upon like reason is it a proper basis in the instant case. The idea of the Allis-Chalmers Case was approved and applied in Highway Trailer Co. v. Industrial Comm. 225 Wis. 325, 333, 274 N. W. 441, where language from the Allis-Chalmers Case opinion is quoted: “Compensation must be based upon the earning capacity of the injured workman in the employment and as he was employed at the time of his injury.” In the opinion of the Highway Trailer Co. Case the rule is referred to as “well established,” page 333, that “compensation must be based upon the earning capacity of the injured workman in the employment and’as he was employed at the time of his injury.” This rule was also quoted in Struck & Irwin Fuel Co. v. Industrial Comm. 222 Wis. 613, 622, 269 N. W. 319. It is also said in the opinion in the Struck & Irwin Case, p. 622: “Compensation must bear some reasonable relation to the loss which the injured employee will probably sustain, and, therefore, must be based upon the amount which reasonably *473 represents his average weekly earning capacity at the time of his injury.” The same idea is expressed in Presque Isle v. Industrial Comm. 200 Wis. 446, 228 N. W. 589; Glancy Malleable Iron Co. v. Industrial Comm. 216 Wis. 615, 622, 258 N. W. 445; and Hammann v. Industrial Comm. 216 Wis. 572, 257 N. W. 612. We have here an employee regularly earning $4.35 per week awarded by the judgment of the circuit court $7.35 per week as compensation for the wage loss sustained by her through receiving injury in course of her employment. She is awarded that sum because the Workmen’s Compensation Act prescribes that sum as the amount that shall be paid to an injured employee whose earnings are less than $10.50 per week. She is given the full protection that the statute contemplates shall be given to every workman so injured whose weekly earnings are less than that sum. Full justice is given her within the contemplation of the act by awarding her the same sum that any other workman within the act anywhere in the state receiving like wage would regularly receive who was temporarily totally disabled by an injury received in the course of his employment. No reason is perceived why she should receive any more than any other such workman of like earnings so injured would regularly receive. By the Court. — The judgment of the circuit court is affirmed. Footnotes [1] “(1) The average weekly earnings for temporary disability shall be taken at not less than ten dollars and fifty cents nor more than thirty dollars, and for permanent disability or death shall be taken at not less than twenty dollars nor more than thirty dollars. Between said limits the average weekly earnings shall be determined as follows : “(a) Daily earnings shall mean the daily earnings of the employee at the time of the injury in the employment in which he was then engaged. In determining daily earnings under this paragraph, overtime shall not be considered. If at the time of the injury the employee is working on part time for the day, his daily earnings shall be arrived at by dividing the amount received, or to be received by him for such part-time service for the day, by the number of hours and fractional hours of such part-time service, and multiplying the result by the number of hours of the normal full-time working day for the employment involved. The words ‘pal't time for the day’ shall apply to Saturday half days and all other days upon which the employee works less than normal full-time working hours. The average weekly earnings shall be arrived at by multiplying the daily earnings by the number of days and fractional days normally worked per week at the time of the injury in the business operation of the employer for the particular employment in which the employee was engaged at the time of his injury. . . . “(c) In the case of persons performing service without fixed earnings, or where normal full-time days or weeks are not maintained by the employer in the employment in which the employee worked when injured, or where, for other reason, earnings cannot be determined under the methods prescribed by paragraph (a) or (b), the *470 earnings of the injured person shall, for the purpose of calculating compensation payable under this chapter, be taken to be the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment in which earnings can be determined under the methods set out in paragraph (a) or (b).”