Harsh & Chapline Shoe Co. v. Industrial Commission
Harsh & Chapline Shoe Co. v. Industrial Commission
Opinion of the Court
Experience having demonstrated the impossibility of having, at all times, and under all circumstances, a fixed wage base upon which to calculate the amount of an award to meet one of such exigencies, the legislature, in sec. 102.11 (2) (b), Stats., provided:
“If the employee has not so worked in such employment during substantially the whole of such preceding year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such year in*480 the same or a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.”
The injury in this case occurred after Zagrodnik had worked a short time less than four weeks as the operator of a scudding machine. Pie had not been employed as such an operator before, and no scudders had been employed in Milwaukee during the year preceding that in which the injury occurred. There was, therefore, no standard of wage peculiarly attaching to his employment existing in the factory where he was employed, or in the same neighborhood. The commission therefore followed the directions of the statute above referred to, and based its finding of an average wage on the fact that in the neighboring city of Racine a factory employed scudders, and that the earnings of one so employed averaged $24 per week. This information was acquired by the commission by correspondence, and the letters, by consent of all the parties, were made a part of the record.
The single question raised on this appeal is as to the proper wage base. We are of the opinion that the commission properly resorted to the method provided by sec. 102.11 (2) (b), Stats., in determining upon a standard or wage base, and used the same in calculating the award. Appellants contend that sec. 102.11 (2) (c) should have been applied. That section provides:
“In cases where the foregoing methods of arriving at the average annual earnings of the employee cannot reasonably and fairly be applied, such average annual earnings shall be taken at such sum as, having regard to the previous earnings of the employee, and of other employees of the same or most similar class, working in the same or most similar employment, in the same or neighboring locality, shall reasonably represent the.average annual earning capacity of the injured employee at the time of the injury.”
As is stated in that section, it is to be applied only when the annual earnings of the employee cannot reasonably and
The objection that the award, as made, is based upon a wage in excess of the wage earned by Zagrodnik, is not well founded. If his wage had been in excess of this average earning or wage, and the time of employment had been the same, the ruling would have been applied in the same way. The brief period of employment does not fairly reflect his average earning capacity for a year. There cannot be a perfect exactness prescribed for the exigencies which may arise under the compensation act, and where the average annual earnings can be arrived at, as under the circumstances of this case, by the use of the rule prescribed by the legislature, that ruling must be followed.
By the Court. — Judgment affirmed.
Reference
- Full Case Name
- Harsh & Chapline Shoe Company and another v. Industrial Commission and another
- Status
- Published