Baba v. Eastern Malleable Iron Co.

120 A. 593 | Conn. | 1923

The questions reserved turn on the construction of § 5353 of the General Statutes, which we have recently passed on in Mazzi v. Smedley Co.,95 Conn. 607, 112 A. 168. In that case the plaintiff worked for the defendant for eight days in all. Of these eight days, four were excluded from the statutory computation because they fell within the first week of the employment, which happened not to commence at the beginning of a calendar week; and two other days were excluded because they fell within the week in which the injury happened. Consequently, as is said on p. 611, "we have left two days' work, April 8th and May 5th, a day in each of two separate calendar weeks, as the only days of which account can be taken in ascertaining the plaintiff's average weekly wage." We held, of course, that two days was "less than a net period of two calendar weeks," and that under the statute the plaintiff was entitled to have his wages considered equivalent to the prevailing average weekly wage; and, in addition, we held that as there was an independent contract of employment for each day's work, the situation was the same as though the plaintiff worked for the defendant for the first time on the day of his injury. Concerning the phrase, "is computed to be less than a net period of two calendar weeks," we said: "Of course, the method of fixing the dividing line when compensation ceases to be based on the actual weekly average of wages and is to be based on the prevailing weekly average, if such a distinction is to be made, must be more or less arbitrary. But the statute appears to be designed to require some substantial quantity of labor to be performed within the limited period, to establish a basis for determining a claimant's average weekly wage, and therefore requires that the claimant shall have been employed for at least a `net period of two calendar weeks,' by which we think is meant exactly what will first occur to the reader, two full weeks of work out of a total of twenty-six possible weeks. The use of `calendar,' here refers to the quantity of time and not the almanac period. `Net' means `not subject to any discount or reduction.' Standard Dictionary. And a net period of time, as of a week, is a whole week. The term `calendar week,' as used in determining the divisor for obtaining the average weekly wage, is described by the statute as meaning any calendar week `during which, or any portion of which, said workman was actually employed.' Again, it is provided that `absence for seven consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week.' Just what a `calendar day' is, as differing from any other sort of a day, we are unable to comprehend, but it is clear that the term `calendar' is loosely used in the statute, sometimes in the technical sense and sometimes as meaning a period of seven days, though not all in one strictly calendar week. The phrase under examination clearly relates to the duration of employment. Labor for a portion of a calendar week cannot be labor for a net calendar week. `Calendar,' as used in the phrase in question, must be intended to indicate a full week, and `net' can have no meaning as here used unless it means that the sum total of day's labor as ascertained in computing the average weekly wage shall be the equivalent of two full calendar weeks."

In the present case, the sum total of the plaintiff's day's labor, excluding the initial week of his employment, and the week during which the injury was received, amounted to more than "the equivalent of two full calendar weeks," and under the rule laid down in the Mazzi case, the plaintiff's average weekly wage is to be computed in the manner prescribed in the first two sentences of § 5353. The rule adopted by the Commissioner goes far beyond the Mazzi case, for he holds that the employment is "less than a net period of two calendar weeks" in every case where the claimant has not at some time during the period of his employment worked continuously from the beginning to the end of two full weeks of five and one half days each. On that theory, the claimant might have worked five days a week for twenty-six weeks, and still be entitled to receive, or be compelled to accept, compensation based on the local prevailing wage for the same or similar employment, instead of on the basis of his average weekly wage. This is contrary to the letter and spirit of the statute, which plainly intends that compensation shall be based on the claimant's average weekly wage, computed in the prescribed manner, unless in the exceptional cases where the "net period" of the employment is less than two calendar weeks; meaning, as we said in the Mazzi case, that the total employment in the net period of employment is less than the "equivalent" of two full weeks.

The statute contemplates that the average weekly wage shall be the normal basis of compensation, but the Commissioner's ruling would make the prevailing wage the normal, rather than the exceptional, basis of compensation. We are satisfied that the Mazzi case furnishes the correct working rule for ascertaining the net period of employment: that in case the total net working employment of the claimant within the prescribed period, equals or exceeds the equivalent of two full weeks work, his average weekly wage affords the statutory basis for compensation.

The Superior Court is advised to set aside the award and remand the case to the Commissioner for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.