Probst v. Industrial Commission
Probst v. Industrial Commission
Opinion of the Court
The above entitled matter is before this Court wherein the plaintiff seeks a review of the order of the Industrial Commission, which modified and reduced an award granted by a hearing examiner.
On January 24, 1976, the plaintiff was injured while operating a press in the employment of the defendant J. Brent Wood. As a result of the injuries sustained, it was necessary to amputate an injured hand. Thereafter the plaintiff was fitted with a prosthetic device. At the time of the injury plaintiff was a student at Brigham Young University and had recently been hired by defendant Wood to work nights and on weekends. Plaintiff was injured after he had been on the job only four days and he was being paid at the rate of $2.50 per hour. There was evidence to the effect that after a training period of approximately 30 days the plaintiff would receive between $3.00 and $3.25 per hour.
The plaintiff applied for workmen’s compensation basing his claim on an hourly
If it is established that the injured employee was of such age and experience when injured that under natural conditions his wages would be expected to increase, that fact may be considered in arriving at his average weekly wage.
On June 24, 1977, the Industrial Commission modified and reduced the amount found by the administrative law judge to the sum of $12,108.58. As a basis for its modification, it appears that the Commission determined that the wage of the plaintiff should be determined on the wages paid within the same employment. The Commission applied the provisions of U.C.A., 1953, 35-1-75, the pertinent parts of which are as follows:
. Except as otherwise provided in this act, the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute the weekly compensation rate .
It appears that the Commission followed Sec. 35-1-76 in determining that the plaintiff was entitled to have his compensation calculated on the basis of a $3.25 per hour wage rather than the $2.50 per hour which he was receiving at the time of the accident. The Commission refused to extend the provisions of that statute to award the plaintiff compensation to the maximum average weekly wage.
Plaintiff’s contention here is that he should get whatever his capabilities might command for the 168 weeks, on any job he might reasonably expect to hold during such time. He says this is so because the Act is humanitarian and should be liberally construed, citing and quoting several Utah cases to establish such humanitarianism. He then cites and quotes four cases to justify his contention that his award should be based upon pay he could reasonably be expected to receive in employment other than that which he had with Wood. Two of the cases are from New York
Plaintiff’s application requests consideration on the basis of $3.25 per hour and the Commission granted him just that. Only after the administrative law judge recommended he be awarded a greater amount did he ask for more than that for which he originally applied. Reason and logic supports the Commission in limiting the award under a formula based upon a wage that plaintiff was willingly and contractually receiving. There appears to be little reason
The Commission acted within its powers in limiting the application of the provisions of U.C.A., 1953, 35-1 — 76 and it was not arbitrary in so doing.
The decision of the Commission is affirmed. No costs awarded.
. Donnelly v. Buffalo Evening News, 5 A.D.2d 639, 174 N.Y.S.2d 361 (1958); Haldane v. Buffalo Evening News, 6 A.D.2d 734, 174 N.Y.S.2d 365 (1958).
. Harmon's Texaco Service Station v. Kessinger, Okl., 365 P.2d 131 (1965); Williamson v. Grimm, Okl., 425 P.2d 992 (1967).
. Brewer v. Industrial Commission, 89 Utah 596, 58 P.2d 33 (1936); In re Gagnon, 228 Mass. 334, 117 N.E. 321 (1917); Industrial Commission of Ohio v. Royer, 122 Ohio St. 271, 171 N.E. 337 (1930); Gruber v. Kramer Amusement Corp., 207 App.Div. 564, 202 N.Y.S. 413 (1924).
Reference
- Full Case Name
- Jerry R. PROBST v. The INDUSTRIAL COMMISSION of Utah, J. Brent Wood, d/b/a Kitco, Inc. and State Farm Fire & Casualty
- Status
- Published