Claim of Kilberg v. Vitch

Howard, J.: The deceased in this case was a boy sixteen years old. At the time of his death he was earning $5.50 a week. It appears from the evidence, and the Commission has found, that “As he progressed in his trade, his wages at the end of two years would, under normal conditions, have increased" to $12 per week, and upon arriving at his majority he would have earned in his trade from $12 to $18 per week.” An award has been made to a dependent mother and sister. The appellants do not dispute the facts but contend against the consideration by the Commission of a probable increase in the wages of the deceased minor employee and against an award based on such consideration. The Commission has assumed that its power to make the award appealed from arises from the language of section 14 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). The relevant parts of the section read as follows: “§ 14. Weekly wages basis of compensation. Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation or death benefits, and shall be determined as follows: * * * If it be established that the injured employee was a minor when injured, and that under normal conditions his wages would be expected to increase, the fact may be considered in arriving at his average weekly wages.” Arriving at his average weekly wages for what purpose ? For the purpose of computing “ compensation or death benefits.” This answer comes out of the 1st paragraph of section 14 itself. This is not the case of widely sepa [91] rated and apparently discordant sections of a statute which the court is to attempt to harmonize. Here the language under consideration is all in one section and treats of one subject. Stripped of matters not germane to the subject in hand, we find that section 14 provides that the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation or death benefits, and if the injured employee was a minor when injured and under normal conditions his wages would be expected to increase, that fact may be considered in arriving at his average weekly wages. Therefore, it follows that the Commission acted in accordance with the exact letter as well as the spirit of the law. The attempt of the appellants to invoke the last sentence of section 16 of the act (as amd. by Laws of 1914, chap. 316) in support of their contention fails entirely as we comprehend the statute. The sentence in question is as follows: “All questions of dependency shall be determined as of the time of the accident.” This is simply a command to the Commission whenever it attempts to ascertain who are dependents of a deceased employee to take into consideration the circumstances at the time of the accident. It relates in no manner to the right of the Commission to consider the probable earning capacity of an injured employee who was a minor when hurt. The award should be affirmed, with costs. Award unanimously affirmed; Cochrane, J., not sitting.