Howell v. Industrial Accident Commission

TUTTLE, J. Petition to annul an award of Industrial Accident Commission, fixing the amount of death benefit due the widow and minor children of Ernest F. Ensley. The sole question presented is the method or basis of computation used by the commission in arriving at the weekly disability indemnity and the total death benefit. The right to raise such question in this proceeding is not in dispute.

Ensley was killed while employed by petitioners Howell & Howell. He was a logger, and by reason of weather conditions existing in Plumas County, was only able to work some eight months of each year. In making the award, the commission took the total yearly earnings of decedent, and divided them by eight. It is the contention of petitioners that such earnings should be divided by twelve. The commission found [327]that the average monthly wage was $146.87, resulting in a death benefit of $5860.20, payable at the rate of $20.93 a week. The theory of petitioners, if it prevailed, -would reduce the weekly benefits to $13.95 per week, and the total benefits to $3905.54.

We think that the commission was vested with jurisdiction to make the award, under the provisions of section 4453, subdivisions (c) and (d) of the Labor Code, which set forth the manner of computing average weekly earnings in a case of this character. Those subdivisions of the section read as follows:

“(c) If the earnings are at an irregular rate, such as piecework or on a commission basis, or are specified to be by the week, month, or other period, then the average weekly earnings mentioned in subdivision (a) above shall be taken as ninety-five per cent of the actual weekly earnings average for such period of time, not exceeding one year, as may conveniently be taken to determine an average weekly rate of pay.

“(d) Where the employment is for less than thirty hours per week, or where for any reason the foregoing methods of arriving at the average "weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at ninety-five per cent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his injury, due consideration being given to his actual earnings from all sources and employrments. ’ ’

Under the latter subdivision of the section, considerable discretion is vested in the commission in deciding what method of computing average weekly earnings should be adopted. (Aetna Life Ins. Co. v. Industrial Acc. Com., 130 Cal. App. 488 [20 Pac. (2d) 372].) We can see no abuse of discretion in the adoption of the method prescribed in subdivision (d), and must assume that the commission followed that course.