657 P.2d 1354 | Utah | 1983
Plaintiffs seek review of the Industrial Commission’s award of compensation to an injured employee, which was based upon his combined earnings from concurrent employments.
The facts are not in dispute. Defendant Clark L. Wanner (Wanner) was employed concurrently by plaintiff Craig Burnham Produce (Burnham Produce) and Eaton Kenway. He worked on a part-time basis for Burnham Produce, earning $35 per week for approximately six to nine hours of work. His duties there consisted primarily of unloading trucks with the assistance of an electric pallet jack. At Eaton Kenway, Wanner was employed on a full-time basis (forty hours per week), assembling, inspecting and shipping machinery. His wages there were $5.69 per hour, or $227.60 per week.
Wanner sustained an injury to his left foot while working at his part-time job with Burnham Produce. The injury rendered him incapable of working at either place of employment for a period of five and four-sevenths weeks. He applied for compensation benefits and was awarded $180 for each week of disability. The award was based not upon his part-time weekly wage of $35, but upon his combined weekly wages from both places of employment, which to-talled $262.60.
The applicable statute, U.C.A., 1953, § 35-1-75, provides in pertinent part as follows:
(1) ... [T]he average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute the weekly compensation rate ....
Said subsection (1) then sets forth various methods to be followed in determining the average weekly wage depending upon whether the wages are fixed by the hour, day, week, etc. Thereafter, subsection (3) of the statute provides:
If none of the methods in subsection (1) will fairly determine the average weekly wage in a particular case, the commission shall use such other method as will, based*1356 on the facts presented, fairly determine the employee’s average weekly wage.
The administrative law judge that heard this case concluded that it would be unfair to Wanner for his “average weekly wage” to be limited to his earnings of $35 per week from the part-time employment he was engaged in at the time of his injury. Consequently, he applied the provisions of subsection (3) of the statute to alleviate the unfairness.
Plaintiffs contend that the statute neither contemplates nor permits an award of compensation based on combined wages from concurrent employments, and that an employer’s liability is based upon and limited to the average weekly wage it alone pays an injured employee.
This Court has not previously interpreted the effect of the inclusion of subsection (3) in the statute.
The statute was amended in 1921,
In Millard County v. Industrial Commission,
In Morrison-Merrill & Co. v. Industrial Commission,
The enactment of subsection (3) constitutes a significant amendment to the statute. We need therefore determine if the statute now requires a different interpretation. We conclude that it does.
The courts in other jurisdictions have not been uniform in their interpretation of similar statutory provisions. Several have combined the earnings of concurrent employments that were related or similar; a lesser number have combined the earnings
The content of the Utah statute does not lend itself to the adoption of a “related” or “similar” employment rule. In his treatise in the subject,
The fundamental responsibility in construing legislative enactments is to give effect to their underlying intent and purpose.
[T]he Workmens Compensation Laws were and are designed to provide sustenance to a family for a statutory time until it can become readjusted in industry ....15
It is also to be observed that:
This court has frequently stated that the Act should be liberally construed and applied to afford coverage to the employee and give effect to the purposes of the Act.16
Plaintiffs contend that the operative words of the statute are “the average weekly wage at the time of the injury,” and that those terms should be, and have been in the past,
Plaintiffs’ further contention that wages cannot be combined in the absence of an express statutory provision therefor is of no particular significance or consequence because the statute also does not expressly prohibit wages from being combined. Also, the contention fails to adequately reckon with the fact that the Legislature in 1971 saw fit to adopt subsection (3) of the statute so as to specifically insert the element of fairness in determining the average weekly wage.
The language of subsection (3) is clear and unambiguous. Given its literal and ordinary meaning, it provides the Commission with such additional methods over and above those specified in subsection (1) as will permit it to “fairly determine” the injured employee’s weekly wages. Furthermore, the content of said subsection (3) is wholly consistent and compatible with the underlying legislative intent and purpose of the Workmen’s Compensation Act.
In the context of section 35-1-75, and particularly subsection (3) thereof, in order to “fairly determine” an injured employee’s “average weekly wage,” it is necessary to compute his weekly compensation rate on the basis of the total wages he would have earned had he not been injured.
Affirmed.
. Subsection (3) was enacted by the Laws of Utah 1971.
. Compiled Laws Utah 1917, § 3142.
. Bamberger Electric R. Co. v. Industrial Commission, 59 Utah 257, 203 P. 345 (1921).
. Laws of Utah 1921, § 3142.
. U.C.A., 1953, § 35-1-75(1), supra.
. 62 Utah 46, 217 P. 974 (1923).
. 62 Utah at 51, 217 P. 974.
. In accord: Brewer v. Industrial Commission, 89 Utah 596, 58 P.2d 33 (1936), and Uintah Power & Light Co. v. Industrial Commission, 56 Utah 169, 189 P. 875 (1920).
. 81 Utah 363, 18 P.2d 295 (1933).
. Supra, n. 3.
. Supra, n. 4.
. See 2 A. Larson, The Law of Workmen’s Compensation, § 60.30, et seq. (1981).
. Id
. Millett v. Clark Clinic Corporation, Utah, 609 P.2d 934 (1980); Salt Lake City v. Salt Lake County, Utah, 568 P.2d 738 (1977).
. United States Smelting, Refining & Mining Co. v. Nielsen, 19 Utah 2d 239, 242, 430 P.2d 162, 164 (1967).
. Cook v. Peter Kiewit Sons Co., 15 Utah 2d 20, 22, 386 P.2d 616, 617 (1963).
. Supra, n. 6.