165 A. 758 | Pa. Super. Ct. | 1933
Argued March 15, 1933. Simon P. Romig, the claimant, had his right foot injured on January 15, 1932, in the course of his employment, suffering therefrom temporary total disability. On February 1, 1932, a compensation agreement was entered into, whereby he was paid the minimum weekly sum of $7 to February 28, 1932. The parties then petitioned the board to determine the weekly wage of the claimant, stipulating therein that his wages were $3.50 per day, and that the defendant's foundry, during the year 1930, and up to April 15, 1931, operated only three days per week; that from April 15, 1931, to January 15, 1932, it operated but two days per week; and that the claimant worked every day that the foundry operated during the year preceding the accident. On June 21, 1932, the board filed its opinion, determining the average weekly wage of the claimant to be the sum of $19.25, derived by multiplying his daily wage of $3.50 by 5 1/2 days; and ordered the defendant to pay the claimant $12.51 per week as compensation during his period of disability, less whatever payments had already been made to him under the agreement. An appeal was taken, and the court below affirmed the board, which is the subject of this appeal. *80
The sole question involved is the meaning of "continuous employments" in section 309 of the Workmen's Compensation Act of June 2, 1915, P.L. 736 Art. III, as amended June 26, 1919, P.L. 642, § 3 (
It will be noted in the proviso that if the employee "regularly and habitually worked more than five and one-half days per week," he is entitled to additional compensation, which seems to imply that, as a basis of calculation, a week means five and one-half days *81 of work regularly and habitually performed, subject, of course, to strike, illness, or temporary interruption. It can hardly be said that if a man works one day, or, as in this case, two days a week, he is engaged in continuous employment in the sense that the employment is constant or uninterrupted. If working two days is to be regarded as continuous employment, and compensation is based on more days than are actually worked during the six months, the employee receives more as compensation than he would have received as wages if he had worked two days per week. That would be unjust, and bring about a result, which, we think, was not within the intention of the Legislature. That view is strengthened when we turn to section 309 of the Act, which provides: ". . . . . . the employe's weekly wages shall be taken to be one-fiftieth of the total wages which he has earned from all occupations during the year immediately preceding the accident, unless it be shown that during such year, by reason of exceptional causes, such method of computation does not ascertain fairly the earnings of the employe; in which case the period for calculation shall be extended so far to give a basis for the fair ascertainment of his average weekly earnings." Certainly, the method resorted to by the board does not "ascertain fairly the earnings of the employe."
In the case of Jensen v. Atlantic Ref. Co.,
The construction of the portion of the statute we are considering has never been determined in this state, in so far as we have found. But the reasoning and construction of the compensation laws in other states, although their language is not the same as in our statute, throw light on the subject. In Cote v. Bachelder-Worcester Co.,
In Danzy v. Crowell Spencer Lumber Co.,
In Mahony Co. v. Marshall, 46 Fed. (2) 539, claimant sought compensation under the Longshoremen's and Harbor Workers' Compensation Act (March 4, 1927, c. 509, § 10, 44 Stat. 1431) (
If we were compelled to construe employment of two days a week within the meaning of "continuous employments," it would discourage employers from adopting "staggered" employment, whereby each employee works a portion of the time to give a greater number work. This system is one of the methods generally *85 recognized as a great aid to ameliorate the prevailing and unfortunate conditions of unemployment now confronting us, and should be encouraged by all if possible.
Believing, as we do, that the statute contemplated, not the theoretical, but the actual earnings of the employee, if they can be ascertained, as the basis upon which compensation is to be awarded, we are unable to concur with the court's conclusion.
Judgment is reversed, and is now entered for the defendant.