150 S.W.2d 889 | Ky. Ct. App. | 1941
Affirming.
The only question is whether the method adopted by the Workmen's Compensation Board for ascertaining the average weekly wage of a workman as the basis for an award for total and permanent injury is proper.
The appellee, Delles Richardson, was injured on the tenth day of his employment as a coal loader by the Lexington Mining Company. His compensation was 40 cents per ton of coal loaded. He reported for work every day, but because of conditions in the mine over which he had no control he was obstructed and delayed, so that his total earnings for the ten days were only $10.66. If he had been able to work eight hours a day, as he was supposed to, he could have loaded the same amount of coal in 3 1/2 days. The Referee, Hon. William R. Gentry, computed Richardson's average weekly wage by dividing the total sum earned by 3 1/2, and multiplying the result by 6, thus arriving at $18.24. The award was 65% of that sum, that is $11.87 a week, for a period of 416 weeks. The Board and the Circuit Court approved the method and affirmed the award.
It is the contention of the appellant that where an employee has worked six or more days as a piece worker, his actual daily earning should be regarded in computing his average weekly wage, which is the basis of calculation of compensation. Section 4905, Kentucky Statutes. It argues that under the terms of his employment the appellee could go to work and quit work whenever he pleased; that the evidence shows he had done so, though it is admitted that part of the time the mining machinery or equipment was out of order and there was no coal cut for him to load. It is said that accidents and delays in mining operations are to be expected, with the consequent discontinuance of work, and these are conditions assumed by an employee as an incident of his employment. If this were not so, it is argued, the employer of a piece worker would become a guarantor of his facilities and machinery being operated without *420 interruption. Appellant, therefore, insists that the amount actually earned in ten days by Richardson should form the basis of computation. This would result in the award of $3.90 a week based upon average earnings of $6 a week.
The basis of computation prescribed by Section 4905, Kentucky Statutes, is, "the average weekly wage earned by employee at the time of injury, reckoning wages as earned while working at full time." Our consistent interpretation of the statute is that it means a full working day for six days in every week of the year regardless of whether the employee actually worked all or part of the time. American Tobacco Company v. Grider,
We do not read the record as establishing that Richardson was at liberty to work only when and so long as he pleased, or that he was a piece worker in the strict sense. He was a regular employee and expected to be on the job the usual number of hours when the mine was being operated. We apprehend that had he only occasionally showed up for work, as he might have chosen, he would soon have been without a job. The measure of his pay was tonnage loaded rather than time worked, and, yet, since the factor of "full time" is prescribed by the statute for measuring the award to which an injured employee is entitled, full time must be regarded as a component element in reckoning his wages as the basis. It is exceptional that an employee is injured so soon after he goes to work and that the standard fixed by the statute proves to be not sufficient or equitable. When such an exceptional or unusual case does arise, the best that can be done is to regard the situation realistically and apply the standard to it. That was done in the first case in which we defined the term "full time" prescribed in Section 4905 of the Statutes to mean a full day for every day in the week rather than only the time for which employment was offered or opportunity *421
to work was afforded, because an uninjured laborer may work the remainder of his life while an injured man receives compensation for only a limited time. Beaver Dam Coal Company v. Hocker,
A case closer to the one at bar is Benito Mining Company v. Girdner,
Appellant relies with confidence upon the ruling in Brisendine v. Skousen Brothers,
It must not be overlooked that the object of the statute is to compensate the workman for loss of his earning capacity; that the rule of measurement laid down in the statute is to establish his earning capacity in the job he had; that it is the means to an end, and not the end itself. The several Workmen's Compensation Acts throughout the country differ in rules and methods to be used (see 71 C. J. 798), but all seek to establish the same basic fact. Here is a man twenty-one or twenty-two years old, in good health and strength, who actually earned only $1 a day during the abnormal period of service. Reality would be ignored and common knowledge discarded were it to be adjudged that that was the limit of his earning capacity as a coal loader. Though the method adopted in this case is novel, we think the Board was warranted in using it under the peculiar circumstances and that the award is justified by the law and the facts.
The judgment is affirmed.