Friesen v. Industrial Accident Commission

WOOD (Fred B.), J.

The petitioning employee questions the correctness of the respondent commission’s award to him of temporary total disability compensation in the amount of $22.75 a week based upon a finding that the sum of $36.84 reasonably represents his average weekly earnings at the time of the injury. He claims a higher average earning rate, one which would entitle him to the maximum rate allowed by section 4453 of the Labor Code.

Specifically, the petitioner claims that in ascertaining his average weekly earnings the commission (1) should have used the formula prescribed by subdivision (a) instead of the method prescribed by subdivision (d) of section 4453 of the Labor Code; (2) incorrectly applied the method prescribed by subdivision (d); and (3) committed errors of computation in making the determination.

Petitioner had been a student at the University of California. Upon his graduation in February of 1953, he sought temporary work with the intention of taking up graduate studies in the fall of that year.

According to the referee’s report upon which the commission’s findings and award were based, there was evidence that petitioner earned from $70 to $80 in February, 1953; $127.40 from April 11th through May 9th; $61.85 a week, May 19th through June 9th; $73.85 a week, June 10th through July 20th; summarized by the referee as follows: “In other words, for the period beginning February 1, through July 20, 1953 ... a period of 170 days, the employee earned $848.58 or an average of $35* a week. The actual weekly wage of $36.84* gives rise to a compensation rate of $22.75

*

a week which I believe is a fair basis for determining the earning capacity of this employee considering his program of living at the time of the injury,” adding that he deemed subdivision (d) of section 4453 applicable.

The referee later (in his report recommending denial of petition for reconsideration) amplified this statement: “. . . the employee contends that his earnings were maximum. He points out that at the time of the injury, he was still acquir

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ing an education and was in college. Though he was graduated, he had continued his education and had obtained such jobs that he could while attending classes. He was injured while actually earning maximum wages but the record was clear that this was a temporary job during vacation. As pointed out in the Report of Referee, I have taken various periods of employment since the employee left college in February, added them together and divided the same by the total number of days involved. In other words, his earnings over a period of time prior to the injury were averaged up.