Western Sur. Co. v. Mydland

• Decision Date: 29 July 1970
• Docket Number: No. 10729,10729
• Parties: WESTERN SURETY CO., Plaintiff and Respondent, v. Gordon MYDLAND, Industrial Commissioner of South Dakota, and Thomas R.Vickerman, Deputy Industrial Commissioner of the State of South Dakota, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 3

179 N.W.2d 3

85 S.D. 172

WESTERN SURETY CO., Plaintiff and Respondent, v. Gordon MYDLAND, Industrial Commissioner of South Dakota, and Thomas R.Vickerman, Deputy Industrial Commissioner of the State of South Dakota, Defendants and Appellants.

No. 10729.

Supreme Court of South Dakota.

July 29, 1970.

C. J. Kelly, Asst. Atty. Gen., Pierre, for defendants and appellants.

Kirby, McDonnell & Kirby, Gene McDonnell, Sioux Falls, for plaintiff and respondent.

HOMEYER, Judge.

In a stipulated case plaintiff seeks a declaration of the extent of its liability under a workmen's compensation policy.

The question for decision is whether the 'waiting period' under the statute before compensation becomes payable for disability is seven working days or seven calendar days.

SDCL 62--4--2 as amended provides:

'Except as otherwise provided in this section, no compensation shall be paid for an injury which does not incapacitate the employee for a period of at least seven days from earning full wages. If such incapacity extends beyond the seven days, compensation shall begin on the eighth day after the injury except that if such disability continues for four weeks or longer such compensation shall be computed from the date of the injury.'

Defendants contend the provision that compensation shall begin on the eighth day after the injury means the eighth calendar day. On the other hand, plaintiff maintains, and the trial court agreed, the statute shows the legislature intended seven working days of incapacity to intervene between the injury and when compensation becomes payable unless the disability continues for four weeks or longer in which event compensation is paid from the date of the injury.

There appears to be a paucity of precedent on the question presented. Relatively few cases have reached the courts on the waiting period. This may be because the amount involved is usually quite small. Also, explicit language used in most Workmen's Compensation Acts prescribing the necessary waiting period generally makes interpretation unnecessary.

Schneider in his text on Workmen's Compensation, Permanent Edition, Vol. 11, § 2320, p. 553, says the purpose of the waiting period in workmen's compensation legislation is 'to prevent workmen, who are so inclined, from taking advantage of a slight or imaginary strain, as an excuse for obtaining a few days vacation on half or two-thirds pay.'

The purpose of a statute is to be gathered from the whole act, State v. Douglas, 70 S.D. 203, 16 N.W.2d 489, and where a word or term is susceptible to two constructions, a meaning should be ascribed which carries out the purpose of the act. The main object sought in the construction of a statute is to ascertain and give effect to the intention of the lawmakers as expressed therein. Schlim v. Gau, 80 S.D. 403, 125 N.W.2d 174; Watertown Ind. Sch. Dist. No. 1 of Codington County v. Thyen, 83 S.D. 309, 159 N.W.2d 122. When the statute in question is considered with other parts of the Act, it is our opinion the legislature intended seven working days and not seven calendar days to elapse from the date of the injury before compensation becomes payable except as otherwise provided in the quoted statute.

'Earnings' is defined as the amount of compensation for the number of hours commonly regarded as a day's work for the employment in which the employee was engaged at the time of his injury. SDCL 62--1--1(3). 'Average weekly wages' is defined as the earnings of the employee computed under a statutory formula. SDCL 62--1--1(1). A 'working week' for the purpose of determining the average weekly wage, is deemed to be the number of days contemplated by the employment to be worked during each calendar week. SDCL 62--4--31. In ascertaining the 'average weekly wage', days is clearly meant to be 'working days' in computing the benefits to which an employee is entitled. SDCL 62--4--24.

In analyzing these statutes the trial court reasoned, and we concur, as follows:

'Thus in the extreme example of the employee who is employed only one day in each calendar week the seven day waiting period provided by Section 62--4--2 is not seven weeks because of the exception 'that...