Ocean Accident & Guarantee Corp. v. Carter

• Decision Date: 15 March 1940
• Docket Number: No. 27871.,27871.
• Citation: 8 S.E.2d 538
• Court: Georgia Court of Appeals
• Parties: OCEAN ACCIDENT & GUARANTEE CORPORATION et al. v. CARTER.

8 S.E.2d 538

OCEAN ACCIDENT & GUARANTEE CORPORATION et al.

v.CARTER.

No. 27871.

Court of Appeals of Georgia, Division No. 1.

March 15, 1940.

Rehearing Denied March 30, 1940.

On Motion for Rehearing.

Syllabus by the Court.

1. "The basis for computing the compensation provided for in this Title should be as follows: 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. Where the injured person has not been receiving regular wages and has been employed for such a short period of time that it is impracticable to accurately determine his wages, the wages of employees of the same class, in the same employment, in the same locality, or, if that is impracticable, of employees of the same kind in neighboring localities, shall be used as a basis for determining the wages of such injured employee." Code, § 114-402.

2. Under the facts of this case, a "work week" of three days had been established and observed by the parties for a sufficient length of time, 10 months, and with such uniformity as to become a regular "work week, " a week composed of three days in contradistinction to a calendar week or any other week by whatever name known and that the $15 which the employee received regularly as wages for such a "work week" of three days was the basis for determining his "regular wage" on the date of the injury. Applying these principles to the facts in the case sub judice, the Industrial Board should have held that Carter was earning a regular wage of $15 per week and that the rate of compensation was $7.50 per week instead of holding that compensation based on a wage of $30 per week and that he was entitled to $15 per week.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Proceeding under the Workmen's Compensation Act by R. A. Carter, Jr., claimant, opposed by the Ocean Accident & Guarantee Corporation and others. To review a judgment of the superior court affirming an award of the Industrial Board, named defendant brings error.

Reversed.

Application for a hearing in this case was asked by counsel for the employee, R. A. Carter, Jr. The single director found in favor of the employee. The employer, Eagle Stove Works, and the insurance carrier, Ocean Accident & Guarantee Corporation, appealed to the Full Board and the award of the single director, based on a weekly wage of $30 per week (compensation being $15 per week) was affirmed. The employer and the insurance carrier then appealed to the superior court and the judge affirmed the award. This is an ap-peal from the judge of the superior court and is concerned only with a construction of Code, § 114-402, which deals with the basis of computing compensation under the Workmen's Compensation Act.

John M. Slaton and James J. Slaton, both of Atlanta, for plaintiff in error.

Maddox & Griffin, of Rome, for defendant in error.

MacINTYRE, Judge.

The single director found in part that "It is the decision and opinion of this director that even though the employer operated the plant three days per week and the claimant worked all of the three days each week [earning $15.00 per week] with the exception of time off for illness * * * that would not constitute, as contemplated, under the Workmen's Compensation Act, a full weeks work this Director holds that compensation should be based on the average weekly earnings for like employment in the same community as set out by the State and under several decisions rendered by our Appellate Courts." The compensation was awarded on the basis of $30 per week and evidently was arrived at by the director by dividing $15 by three to ascertain the claimant's wage for one day and then multiply that by 6 in order to arrive at a basis for compensation.

Code, § 114-402, provides: "The basis for computing the compensation provided for in this Title shall be as follows: 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. Where the injured person has not been receiving regular wages and has been employed for such a short period of time that it is impracticable to accurately determine his wages, the wages of employees of the same class, in the same employment, in the same locality, or, if that is impracticable, of employees of the same kind in neighboring localities shall be used as a basis for determining the wages of such injured employee."

Where the plan of the foundry was to operate three days in each calendar week and the employee worked these three days in each calendar week for over ten months, except during the vacation period, or during illness, and the employee receiving $5 per day for each of the three days worked in each of such weeks thus received $15 regularly each week for the work done during each of these weeks which might be termed the "work week", under the circumstances of this case, the "work week" would be, by law, constructively fixed at three days.

The "work week" does not necessarily correspond with the calendar week. When the Legislature of Georgia in 1922 changed the law, it doubtless had before it for consideration the Compensation Acts in force in other states. It knew that the basic wage used in computing compensation varied in other states. In Minnesota, the basic weekly wage was determined by multiplying the daily wage by 5 plus one-half. See Modin v. City Land Co., 189 Minn. 517, 250 N.W. 73. In Kentucky (Beaver Dam Coal Co. v....