Warren Construction Co. v. Industrial Accident Commission

TYLER, P. J.

This is an original proceeding to review an award of the Industrial Accident Commission allowing compensation to one C. M. Keily for an injury suffered while in the employ of petitioner. It is claimed that such injury did not arise out of the employment and that it was not proximately caused thereby as required by the Workmen’s Compensation Act (Stats, 1917, p. 831), so as to entitle the employee to compensation.

Keily was employed by the Warren Construction Company as a timekeeper, and was so employed on the seventeenth day of November, 1922. At that time the company was insured against liability under the Insurance and Safety Act, the Globe Indemnity Company being its insurance carrier. On the day last mentioned Keily and a fellow-employee, one Randall, had an altercation concerning the payment of the wages due Randall, who had terminated his employment with the company. In the performance of his duties Keily kept account of the time the different employees worked and he delivered to them their pay checks. Keily refused to deliver Randall his check until such time as he was ready to leave the camp. In doing so he was carrying out the express orders of the company, which had adopted this rule for the reason that the company had lost money in consequence of employees remaining around the camp and obtaining meals without paying for them after they had severed their connection with the company.

[262]

The testimony is in conflict as to who was the aggressor in the altercation. As a result thereof, however, Keily fell, and his left shoulder was injured in consequence of the fall, and the injury formed the basis of these proceedings.

The Commission found that the injury sustained occurred in the course of and arose out of the employment, and that there was no serious and willful misconduct on the part of the employee. It further found that the injury caused temporary total disability continuing from the date thereof, entitling the employee to the sum of $20.83 a week during such time, exclusive of the waiting period of seven days; that the amount accrued to February 14, 1923, inclusive, was $244, the benefit being based upon the maximum wages allowed by law as a basis of compensation. Medical expenses were also provided for, to be fixed by the Commission upon the filing of itemized bills, and the further sum of $20.83 weekly, beginning with February 15, 1923, until the termination of disability or the further order of the Commission.