270 Mass. 326 | Mass. | 1930
In this proceeding under the workmen’s compensation act, the question in dispute is the employee’s “average weekly wages” within the meaning of the statute, G. L. c. 152, § 1 (1). That section provides: “'Average weekly wages,’ the earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employee lost more than two weeks’ time during such period, the earnings for the remainder of such twelve calendar months shall be divided by the number of weeks remaining after the time so lost has been deducted. Where, by reason of the shortness of the time during which the employee has been in the employment of his employer or the nature or terms of the employment, it is impracticable to compute the average weekly wages, as above défined, regard may be had to the average weekly amount which, during the twelve months previous to the injury, was being earned by a person in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district.”
The employee was injured on January 31, 1929, while piling sugar in the storehouse of The American Sugar Refining Company, his employer, hereafter called the Refining Company. He testified that “He worked [for the Refining Company] . . . when the boats came in,” and had been doing this work for sixteen or seventeen years “but not steady”; that when not working for the Refining Company “he did other work as a longshoreman, wherever he could get work” but did not do longshoreman’s work for the Refining Company; that “there was regular work of the kind he was doing for” the Refining Company “every time a boat comes in”; that some of the men engaged in the same work were more regularly employed than the
The single member of the Industrial Accident Board found that the employee’s weekly wages could not be determined “under the first part of the definition given in § 1 (1), because” the employment by the Refining Company was for too short a period. He further found that Coyne, a fellow employee of O’Loughlin who was employed at the same grade of work, lost one thousand three hundred fifty-six and one quarter hours during the year immediately preceding the claimant’s injury; that fifty-four hours constituted a normal working week; that the one thousand three hundred fifty-six and one quarter hours represented twenty-five and eleven hundredths weeks lost time; that Coyne’s average weekly wages based on this computation were $26.99; that O’Loughlin’s average weekly wages were the same, that is, $26.99, and awarded compensation at the rate of $17.99 a week. The Industrial Accident Board affirmed the decision of the board member. In the Superior Court a decree was entered that the average weekly wages of O’Loughlin were $16.05, and compensation was due him at the rate of $10.70 a week; that as he has been paid compensation at the rate of $12 a week no further compensation is due him. From this decree the employee appealed.
The Industrial Accident Board did not act in accordance with the statute in awarding compensation. Assuming the
As the insurer did not appeal from the decree, we have not considered it necessary to détermine whether the compensation in this case should be ascertained according to the rule established in Rice's Case, 229 Mass. 325, and King’s Case, 234 Mass. 137, where the injured persons were regularly employed, but only for a short period of time each week. See Marvin’s Case, 234 Mass. 145.
From the record in the case we do not know whether the employee has recovered from his injury. It would seem
So ordered.