22 S.E.2d 627 | Ga. Ct. App. | 1942
The record showing that the claimant's labor was limited to thirty hours per week, for which he was to be paid at a rate of forty cents an hour, his regular wage, at the time of the accident, was fixed at $12 per week, and under Code § 114-404 he was entitled to receive one-half of that amount as weekly compensation during his period of disability, not exceeding 350 weeks, resulting from the accident which he sustained. The superior court erred in reversing the award of the Industrial Board, on a rehearing, which found that the claimant was entitled to only $6 weekly compensation, and in remanding the case with direction that the award be modified by changing the amount of *240 compensation from $6 to $12 per week and that the claimant receive the difference with interest.
Morris, the claimant, was injured while at work on Tuesday, July 24, 1934. It is conceded that his injury resulted in total *241 disability which has continued to the present time. The accident was duly reported and on August 25, 1934, an agreement, purported to have been signed by the employee, the employer, and the insurance carrier, was entered into, though the employee denied signing the agreement and insisted that at the time he was not in condition to appreciate what he was doing if he signed it. The agreement was dated August 21, 1934, and provided for compensation at the rate of $6 per week, beginning July 31, 1934. It was filed with the Industrial Board, and on August 27, 1934, was approved by it, and on the same day a communication, entitled "Notice of award — approval of settlement," was mailed to the employee, the employer, and the insurance carrier, the written approval reciting that "If any party in interest doubts that the agreement made has been made strictly according to law he may address the department with an inquiry or complaint. It will receive prompt attention." Thereafter compensation of $6 per week was duly paid to the employee. It was reasonably established that he received a copy of this communication and he accepted the weekly payments, and on several occasions, where there was a slight delay, he wrote the carrier to forward the weekly award of $6.
On December 7, 1939, an attorney wrote the Industrial Board on behalf of the employee, contending that his regular wage at the time of his injury was $4 per day or $24 per week, and that the award should have been $12 per week, and that because of the alleged inadvertence and misapprehension of the facts a hearing should be had and the award corrected. A hearing was had on February 16, 1940, before a single director, who on September 20, 1940, made an award, finding as a fact that the employee, with the exception of certain lost time which he was allowed to make up, worked ten hours a day for three days a week at 40 cents an hour, that his regular wage was $12 per week, and that the carrier had paid $6 per week as compensation and that such payment, for a period of 291 weeks up to the date of the request for a rehearing, was strictly in accordance with the provisions of the workmen's compensation act. He further held that as the carrier had paid compensation in accordance with the law it was immaterial whether or not the employee had signed the agreement, and that the agreement having been formally approved by the Industrial Board, and there having been no appeal within the time required by law, the *242 order of approval, "which for all purposes is the same as an award rendered after a hearing," could not be modified or changed, and that the question of the rate of compensation payable to the claimant was res judicata. It was ordered that the employer and insurance carrier continue the payments of compensation at the rate of $6 per week.
The findings of the single director were based on the facts hereinbefore recited, and particularly on certain testimony of the claimant, quoted in the award as follows: "Q. You were getting forty cents an hour? A. Yes, sir. Q. And worked ten hours a day? A. Yes, sir. Q. And Worked three days each week? A. I worked Thursday, Friday and Saturday and Monday and Tuesday and Wednesday. Then I drew $24 that Saturday. Q. But you worked only three days in any one week? A. Yes, sir. . . Under the contract with the Government they had to pay you 40 cents an hour? A. Yes, sir. Q. And couldn't work you more than thirty hours a week? A. That is right. Q. So you worked three days, ten hours each day, forty cents an hour? A. Yes. Q. And you say you got $24 a week? A. I did when I worked six days. They didn't pay me every week. They didn't pay me until I worked six days. Q. They paid you then $12 a week, didn't they? A. They paid me $24 when I worked six days. Q. Isn't it true they paid you every two weeks on the job, twice a month? A. Yes, that is what I told you. Q. And paid you $24 every two weeks? A. Exactly. Q. Which makes $12 a week? A. I worked three days this week and three days the next week, and the following Saturday they gave me $24. . . Q. You were working at another job when you were not on this job? A. Provided I could get it. Q. You knew you could only work three days a week and the rest of the time you tried to make some more money? A. Yes, sir. Q. At the end of every two weeks they gave you a check for $24? A. That is right. . . Q. I understood you to say there were two shifts working on the bridge at the time you were working, is that correct? A. Let me see if I can put it to you any plainer. . . The job went on regularly each week. It was somebody working on the job six days that the weather would permit. I went to work on Thursday morning and worked Thursday, Friday and Saturday and laid out on Sunday, went back and worked Monday, Tuesday and Wednesday. Then I quit. I hunted work somewhere else. *243 You can call it a shift or anything you may. Somebody else went in there and kept the job going just like I did when I went in on Thursday morning."
The award of the director was appealed to the board and was affirmed on December 10, 1940. The claimant appealed to the superior court of Baldwin County, and after argument in that court the judgment of the full board was reversed and the case was remanded to the board with direction that the award be modified by changing the amount of compensation from $6 to $12 per week, and that the difference be paid to the claimant, together with seven per cent. interest. The exception of the employer and insurance carrier is to that judgment.
The issues presented, as argued in the briefs of counsel, are:
1. Did the Industrial Board have jurisdiction to entertain the request of the claimant for a rehearing? 2. If so, has the claimant been paid compensation in accordance with the provisions of the workmen's compensation act? The latter issue involves the question whether the regular wage of the claimant at the time of his injury was $12 or $24 per week, it being conceded by counsel for the claimant that if $12 was the regular weekly wage the payment of compensation at the rate of $6 per week was in accordance with the provisions of workmen's compensation act.
The approval of the settlement between the employee and the employer and insurance carrier, with a provision that "If any party in interest doubts that the agreement made has been made strictly according to law he may address the department with an inquiry or complaint. It will receive prompt attention," was not such a final award as would necessarily deprive the Industrial Board of jurisdiction to allow the case to be reopened.Lumbermen's Mutual Casualty Co. v. Lattimore,
The Code, § 114-402, declares in part: "The compensation of an injured person shall be computed on the basis of the regular wage received by the employee on the date of the accident." The meaning of the word "regular" is, according to Funk Wagnall's New Standard Dictionary and Webster's New International Dictionary, "according to rule" or "formed after a uniform type." What was the "regular wage" of the employee at the time of his injury? It appears from the record that the employer had a contract with the State Highway Department of Georgia for the construction of a bridge over the Oconee River and highway approaches thereto, such construction work inferentially being aided by the United States Government because it is recited in the contract awarded to the employer that the work was to be done "in accordance with the rules and regulations made pursuant to that certain act of the Federal Congress entitled `An act to provide that the United States shall aid the States in the construction of rural post roads and for other purposes,' approved July 11, 1916, and amendments subsequent thereto." See 39 Stat. 358;
In letting the construction project, upon which the claimant Morris was subsequently employed, the State Highway Department of Georgia included in the contract with the employer a provision in conformity with that of the Federal act as to the maximum number of hours of work in any one week, and it appears from the proposal used in connection with the contract entered into by the employer that the labor to be used on the project was to be selected from qualified workers certified by an employment agency at Milledgeville, Georgia, which had been officially designated by the United States Government. It is inferable that the employer engaged the claimant Morris, using the services of such employment agency, to work as a carpenter on the works project in question. He began on Thursday, and in the calendar week worked also Friday and Saturday. In the meantime another shift, A, had worked Monday, Tuesday and Wednesday of the same week. Morris worked with shift B again on Monday, Tuesday and Wednesday of the following calendar week, shift A working Thursday, Friday and Saturday of that week. At the end of two calendar weeks each man on the shifts, which we have arbitrarily designated A and B, was paid for 60 hours of work. Morris thus received for 60 hours at 40 cents per hour the sum of $24, working as contemplated by the conditions of the contract entered into by the State Highway Department as a Federal aid project. The contract did not provide how many days per week should be worked by each employee, stipulating only that each employee should not work more than thirty hours per week. Manifestly there would have been a compliance with the Governmental provisions if the employee had worked six days at five hours a day, five days at six hours a day, four days at seven and one-half hours a day or three days at ten hours a day, but for convenience, as stated, the practice was to divide the thirty hours into three periods of ten hours each, the employee having the right to make up any time lost, but not to work more than thirty hours in each calendar week.
While it does not appear that in engaging Morris the employer specifically made known to him that he was to work according to the Governmental regulations, his testimony, quoted in detail *246
hereinbefore, conclusively shows that he understood the nature of the project and the work regulations which arose out of the Federal aid in connection with it, and he knew that he could, in no case, work more than thirty hours in any one week, and that to increase his earnings he would be obliged to work additional hours at some other employment. He contends, however, that as he worked six continuous days, omitting the intervening Sunday, and then was laid off for an interval of three days, and then again worked six days, and as six days usually constitute a working week and he earned for such time a total of $24, that sum should be taken as the basis for his allowance of compensation, which under Code § 114-404 would be one half of that amount, or $12, and that as he was originally allowed only $6 per week he is entitled to an additional $6 per week. This view the superior court evidently entertained in reversing the award of the full board and remanding the case with direction that the award be modified by changing the amount of weekly compensation to $12 per week. We think, for reasons above shown, that he erred in so doing, and that the award of $6 per week was a full compliance with the provisions of the workmen's compensation act. The employee was not working on a daily wage basis, from which it might be argued that his weekly or regular wage should be figured at six times a daily wage to ascertain the total weekly wage, but he was working on a fixed basis of thirty hours a week at 40 cents an hour. Thus at the time of his injury his fixed regular wage was $12 per week, rendering unnecessary any mathematical calculation on an assumed basis of a regular day wage as was done in Carter v. Ocean Accident c. Corporation,
In Googe v. United States Fidelity c. Co.,
Georgia Power Co. v. McCook,
Reverting to Carter v. Ocean Accident c. Cor., supra, it will be noted that the employee did piece work and averaged
about $5 per day. For a period of ten months before his injury he had worked only three days per week, but his employment did notbar him from working six days per week. The Supreme Court, not having before it any fixed regular weekly wage, as indisputably appears in the present case, treated the evidence as showing that the employee earned $5 on the date of his injury, and that this was the amount regularly received per day during the preceding ten months. Using such a basis it held that the weekly wage was *248
six times that amount, or $30 per week, and not $15 as ruled by the Court of Appeals in the same case reported in
Judgment reversed. Stephens, P. J., and Felton, J., concur.