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District Court of Appeal, Second District, Division 3, California.


Civ. 25780.

Decided: January 23, 1962

Clopton & Penny and John Leo Harris, Los Angeles, for petitioner. Everett A. Corten, San Francisco, Edward A. Sarkisian, Levy, Russell, DeRoy & Geffner, and Barry Satzman, Los Angeles, for respondents.

Petitioner, the employer's compensation carrier herein, seeks review of a decision after reconsideration of the Industrial Accident Commission awarding temporary total disability indemnity of $65 per week to the employee of the insured based upon maximum earnings.

The question presented is whether the commission's finding, in its decision after reconsideration, that the employee's earnings were maximum, is supported by the evidence.

The employee, a shingler, on October 28, 1960, in the course of his employment, sustained an injury to his left hip and right heel which caused continuing temporary total disability.

The evidence relating to the employee's employment and earnings showed that he had worked part time during the period from April 1, 1960, to the date of injury; that about December 19, 1959, he became ill with pneumonia and was thereby incapacitated for work until about April 1, 1960. The evidence further disclosed that when he worked he received $4.00 per hour; would work 8 hours per day and 5 and 6 days a week when work was available. When he was out of a job he sought work through his local union hall, but there was not much work available. When he went to work for his present employer in April 1960 he would have 2 or 3 days' work per week and sometimes only one ‘because times was rough.’ During the 30-week period from April 1, 1960, to October 28, 1960, he earned $1,819.76.

The trial referee in his report and findings determined that the period to be selected for ascertaining the employee's average weekly earnings should be 302 days, that is, from January 1, 1960, to October 28, 1960, and since the evidence showed that the employee had earned $1,819.76 during 1960 prior to his injury, he found the employee's average weekly earnings to be $42.21, which was mathematically correct assuming that the referee was justified in selecting the period from January 1, 1960, to October 28, 1960, as the proper basis in computing the employee's average weekly earnings.

The commission, having made its award on the foregoing basis, thereafter granted the employee's petition for reconsideration, and after hearing thereon, determined that the employee's earnings were maximum (i. e., equal to or in excess of $100 average weekly earnings) under Labor Code, section 4453, subdivision (d), and on such basis awarded the employee temporary disability indemnity of $65 per week.

First, it appears that the determination before reconsideration of the employee's average weekly earnings ($42.21 weekly was too low. This is so, because the trial referee based his computation on the period from January 1, 1960, to October 28, 1960, the date of injury, although the testimony showed that the employee was sick and unable to work until about 1, 1960. (California, etc., Ins. Co. v. Industrial Acc. Comm., 86 Cal.App.2d 861, at 871, 195 P.2d 880.)

During the 30 weeks from April 1, 1960 to October 28, 1960, the employee earned from petitioner's insured the total sum of $1,193.66, as shown by his wage statement. He earned from three other employers during the same period a total of $626.10, making a total earned over such period of $1,819.76. This is undisputed. This is equal to $60.65 per week average maximum earnings for 30 weeks. In order to sustain the award of $65 per week under Labor Code, section 4453, subdivision (d), made after reconsideration, the employee's average weekly earnings would have to have been equal to or in excess of $100 per week. Since the employee's average weekly earnings, excluding the first three months of 1960, were far below the maximum average weekly earnings necessary to support a disability indemnity award of $65 per week, the decision after reconsideration and the disability award made therein are without evidentiary support.

Respondents urge that ‘actual earnings' are not solely or necessarily conclusive. Granting that such may sometimes be the case, the evidence before us establishes that the employee only worked intermittently, i. e., that there was the element of discontinuity in his employment. (West v. Industrial Acc. Comm., 79 Cal.App.2d 711, at 724, 725, 180 P.2d 972.)

Respondents also contend that maximum earnings could have been determined under Labor Code, section 4453, subdivision (a), which covers cases where the employment is for 30 or more hours per week and for 5 or more working days a week. The evidence indicates the contrary, since it shows that the employee was not paid sums which would place him in this category except on five isolated occasions during the 30-week period under consideration.

The employee is entitled to an award based upon maximum average weekly earnings of $60.65 per week.

The award after reconsideration is annulled. The cause is remanded with directions that the commission base its award in accordance with the views expressed herein.

FRAMPTON, Justice pro tem.

SHINN, P. J., and FORD, J., concur.