Colantonio's Case
Colantonio's Case
Opinion of the Court
No argument nor brief for the claimant.
This is an appeal by the insurer from a decree of the Superior Court, entered in accordance with the findings and decision of the Industrial Accident Board, with respect to the amount of the average weekly wages of the employee. The case came before the Industrial Accident Board upon the question of approval of an agreement for the payment of compensation entered into by the insurer and the employee. The employee sustained an injury on September 26, 1935. The cause of the injury as stated in the agreement is: “While removing broken cap stone from bridge, stone dropped and injured fell with it.”
The insurer and the employee entered into a temporary agreement, under which compensation was paid at the rate of $16 per week, based upon an average weekly wage of $24. A subsequent agreement was entered into by the
The report of the single member contains all the material evidence, which is as follows: “Roland Bailey, questioned by the commissioner, testified that he is the town accountant for the town of Kingston. Witness hasn’t the payroll of this employee with him. (It is agreed employee only worked a half hour when the accident happened.) Employee was a laborer. Witness has with him the payroll of a laborer for the town of Kingston by the name of Peter Benea. Peter Benea was hired the greater portion of the year prior to September 26, 1935. Phillip Brownridd, called by the insurer, testified he has with him the records of the payments made to the employee in this case by the insurer. Compensation started originally on the third of October and then there was a blank starting the twenty-seventh of January and extending to March 5; they started payments again the fifth of March. Dominique Colantonio, the employee, questioned by the commissioner, testified that he knows a man by the name of Peter Benea who worked for the town. Mr. Benea was a truck driver as far as employee knows. Employee did laboring work.” On April 10, 1936, the single member filed her decision. In substance, she found that it was impracticable to compute the average weekly wage of the employee and, therefore, took “the wage of a fellow employee who worked for the same employer and doing the same grade of work as the employee.” The single member found that the average weekly wage of the employee, based upon the payroll of Peter Benea, which is set out in the
The insurer contends that the record contains no evidence to warrant the use of the payroll of Peter Benea, and that if such use was warranted the computation of the average weekly wage of Peter Benea was erroneous.
G. L. (Ter. Ed.) c. 152, § 1, reads in part: “The following words as used in this chapter shall, unless a different meaning is plainly required by the context or specifically prescribed, have the following meanings: (1) 'Average weekly wages’, the earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employee lost more than two weeks’ time during such period, the earnings for the remainder of such twelve calendar months shall be divided by the number of weeks remaining after the time so lost has been deducted. Where, by reason of the shortness of the time during which the employee has been in the employment of his employer or the nature or terms of the employment, it is impracticable to compute the average weekly wages, as above defined, regard may be had to the average weekly amount which, during the twelve months previous to the injury, was being earned by a person in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district.”
The only evidence that Peter Benea was a laborer was
The Superior Court erred in entering a decree in accordance with the findings and decision of the Industrial Accident Board. The decree is reversed and the case is to be remanded to the Industrial Accident Board for proceedings not inconsistent with this opinion.
So ordered.
Reference
- Full Case Name
- Dominique Colantonio's Case
- Status
- Published