Roberts v. Smith
| Decision Date | 30 June 1980 |
| Court | Maine Supreme Court |
| Parties | Robin ROBERTS v. David W. SMITH, Jr. and Maine Bonding & Casualty Company. |
Preti, Flaherty & Beliveau by Keith A. Powers (orally), Portland, Preti, Flaherty & Beliveau by Albert Beliveau, Rumford, for plaintiff.
Richardson, Tyler & Troubh by Ronald D. Russell (orally), Portland, David W. Austin, Rumford, for defendants.
Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN and ROBERTS, JJ.
On February 8, 1979, Ashley Kent Roberts was killed when a tree fell on him while working in the woods as an employee of David W. Smith, Jr. The accident arose out of and occurred in the course of his employment. After a hearing before the Workers' Compensation Commission on May 19, 1979, an award of compensation was granted to Robin Roberts, a surviving widow of Ashley Roberts, under 39 M.R.S.A. §§ 58, 59. Following the entry of a pro forma decree in the Superior Court, Smith and his insurer, Maine Bonding & Casualty Company, appealed to this court and assert as their single issue an error in the computation of average weekly wage under 39 M.R.S.A. § 2(2)(C). We affirm the judgment.
Because our repeated warnings to counsel go unheeded, we commence our discussion of this case by commenting on the state of the record. The transcript of the hearing before the Commissioner reveals twenty-two pages of colloquy about whether or not Maine Bonding & Casualty Company was a proper party, followed by two pages of testimony from the petitioner, and concluding with some colloquy about medical reports which are not in the record and about a schedule of wages which has since been added to the Commission's record. The transcript contains a reference to "a comparable wage schedule" then in the office of defendant Smith's counsel. The record on appeal contains a transmittal letter indicating that the wage schedule contains nine pages, whereas, on the face of the exhibit it is identified as being five pages. This wage schedule as reproduced in the appendix is often illegible. No findings were requested or made other than the Commissioner's determination of an average weekly wage of $184.17. 39 M.R.S.A. § 99. On this record the defendants ask us to conclude that the Commissioner erred as a matter of law by including in his computation of average weekly wage those amounts paid as "chain saw allowance." 1
Because Ashley Roberts had not worked long enough to establish an average weekly wage, the Commissioner apparently relied on evidence consisting of the payroll records of four other employees employed by David Smith as loggers in 1978. 39 M.R.S.A. § 2(2)(C). Although the exhibits are almost illegible, the parties agree that the amount of average weekly wage computed by the Commissioner is greater than the average weekly wage of other employees exclusive of the chain saw allowance and less than the average weekly wage of the same employees with the chain saw allowance included. Under the provisions of § 2(2)(C) the Commissioner was required to determine the "weekly earning capacity of (the decedent) . . . having regard to the previous wages of (the decedent) and of other employees . . . ." (Emphasis added.) See Landry v. Bates Fabric, Inc., Me., 389 A.2d 311, 313 (1978). It was not necessary that his computation reflect an exact average of other employees' actual earnings. On the record before us, we cannot say that the Commissioner's determination was unsupported by competent evidence. See Sutherland v....
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