Forrest v. Theo. H. Davies & Co., Ltd.

• Decision Date: 21 May 1947
• Docket Number: 2649.
• Citation: 37 Haw. 517
• Parties: JAMES A. FORREST, JR. v. THEO. H. DAVIES & CO., LIMITED.
• Court: Hawaii Supreme Court

37 Haw. 517

JAMES A. FORREST, JR.
v.
THEO. H. DAVIES & CO., LIMITED.

No. 2649.

Supreme Court of Territory of Hawai'i.

May 21, 1947

Argued April 14, 15, 1947.

RESERVED QUESTION FROM LABOR AND INDUSTRIAL RELATIONS APPEAL BOARD (BUREAU OF WORKMEN'S COMPENSATION, TERRITORY OF HAWAII).

Syllabus by the Court

" Earnings" as that term is employed in R. L. H. 1945, section 4419, includes earnings accruing under concurrent contracts of service in industrial employment.

If, by reason of the enumerated conditions, the proviso of section 4419 applies, the injured workman is entitled to compensation based on the average weekly earnings of a comparable employee described in the proviso upon a full-time basis unless under the terms of his contract of service, either express or implied, the duration of this employment was limited and, if so, then to compensation based on the average weekly earnings of a comparable employee described in the proviso the duration of the employment of whom was similarly limited.

R. B. Griffith (Smith, Wild, Beebe & Cades with him on the briefs) for employer-appellant.

Lt. Col. B. P. Cooper, Assistant Staff Judge Advocate (Col. E. H. Snodgrass, Staff Judge Advocate, with him on the brief) for employee-appellee.

KEMP, C. J., PETERS AND LE BARON, JJ.

OPINION

PETERS, J.

This is a claim for compensation by an injured workman under the Workmen's Compensation Act.^[1]

The Department of Labor and Industrial Relations, which is charged with the administration of the Workmen's Compensation Act, is under the direction and control of the Commission of Labor and Industrial Relations.^[2] The administrative officer of the commission is the Director of Labor and Industrial Relations, ^[3] hereinafter referred to as the " director." Included in the powers and duties of the commission is the power, with the approval of the governor, to make, modify and repeal reasonable rules and regulations for carrying out the provisions of the workmen's compensation law. Pursuant to its powers to make rules and regulations, the commission, on August 16, 1943, with the approval of the governor, promulgated rule VII, section 3, quoted in the margin, ^[4] implementing the provisions of Revised Laws of Hawaii 1945, section 4419, which has to do with the methods of computation of average weekly wages of injured workmen.

The administration of the Workmen's Compensation Act, in respect to injuries to workmen occurring in the City and County of Honolulu, is committed by law to the director.^[5] His awards are subject to appeal to the Labor and Industrial Relations Appeal Board, ^[6] hereinafter referred to as the " appeal board, " and awards of the latter board, where the hearing is de novo, are subject to review by the first circuit court.^[7]

The appeal board, pursuant to the provisions of Revised Laws of Hawaii 1945, section 4442, certified the following questions of law to this court:

" When a workman, who is a member of the United States Army, is employed during his free time by an employer who is subject to the provisions of Chapter 77, Revised Laws of Hawaii 1945, by which of the following methods do Section 4419 of said Chapter 77 and Section 3 of Rule VII of the Commission of Labor and Industrial Relations, effective September 1, 1943, require that the average weekly wages of such workman be computed

" (a) with regard only to the actual wages received by such workman from his industrial employment, or

" (b) with regard to the actual wages received by such workman from his industrial employment and his actual earnings from the United States Army at the time of his injury, or

" (c) with regard to the average weekly earnings of a person in the same grade employed in the same work by the same employer on a full time basis, or

" (d) with regard to the average weekly earnings of a person in the same grade employed at the same work by the same employer in the same manner as the workman in this instance?"

Accompanying the reservation certificate of the appeal board is the following statement of facts certified to by the chairman of the board:

" JAMES ALEXANDER FORREST, JR., a sergeant in the United States Army (32166642) was employed as a Truck Helper by Theo. H. Davies & Co., Limited (The Ocean Accident and Guarantee Corporation, Limited, insurance carrier) on his ‘ pass' time or time off from Army duties. On July 25, 1945, he sustained a personal injury by an accident arising out of and in the course of his employment by said Theo. H. Davies & Co., Limited. By a Compensation Order, dated August 29, 1945 (file number U-3797), the Director of Labor and Industrial Relations awarded to JAMES ALEXANDER FORREST, JR., claimant, as provided in Section 4416 (2), Revised Laws of Hawaii 1945, a weekly compensation of sixty-six and two-thirds per centum of his average weekly wages beginning on July 25, 1945, said compensation to continue until the disability ends, and found the average weekly wages of claimant to be $36.33 and the compensation rate to be $24.22 per week. Prior to the accident, Sergeant Forrest had been employed by Theo. H. Davies & Co., Limited on the dates for the total number of hours, at the hourly rate and for the total daily wages as follows:

Hourly Daily

" Dates Hours Rate Wages

" June 23, 1945 6-1/4 hours at .87¢ $5.44

" July 11, 1945 8 hours at .87¢ 7.94

3/4 hours at 1.31

" July 18, 1945 8 hours at .87¢ 7.94

3/4 hours at 1.31

" July 25, 1945 8 hours at .87¢ 1.74

" As of July 25, 1945, James Alexander Forrest, Jr., received U.S. Army monthly pay as a sergeant with three years service on foreign service with a base pay of $97.50. Sergeant Forrest continued to receive his United States Army pay after sustaining said personal injury, and will continue to do so until his discharge from the United States Army. The average annual earnings of Truck Helpers employed by Theo. H. Davies & Co., Limited, for a one year period beginning July 1, 1944 and ending June 20, 1945, including over-time, is $1, 889.08. Members of the armed forces were employed by Theo. H. Davies & Co., Limited and other employers in Honolulu on their free time in a manner similar to the employment of Sergeant Forrest.

" The Director's determination was made in accordance with section 3-C of Rule VII of the Commission of Labor and Industrial Relations, effective September 1, 1943 which reads as follows:

" ‘ C. In all cases other than ordinary employment the Director will establish the injured employee's average weekly wage after an examination of the circumstances and conditions relating to the employment.’

and with regard to the average weekly earnings of persons in the same grade employed in the same work by the same employer on a full time basis."

Questions (a) and (b) will be considered together. Whatever method may be employed to compute the average weekly wages of an injured workman it must, under the mandatory provisions of section 4419, quoted in the margin, ^[8] be one best calculated to give the average weekly earnings of the workman during the twelve months preceding his injury. The definition and...