
    Garland Snow’s Case.
    Suffolk.
    April 16, 1925.
    May 21, 1925.
    Present: Rugg, C.J., Braley, Crosby, Carroll, & Wait, JJ.
    
      Workmen’s Compensation Act, Amount of compensation; Procedure: finding by Industrial Accident Board. Words, “Average weeldy wages.”
    A record of a decision by the Industrial Accident Board awarding compensation to a claimant under the provisions of the workmen's compensation act disclosed that the claimant had not been at work continuously for twelve months for his employer and that there was no evidence that his employer had employed any one at the same work during the twelve months preceding the claimant’s injury, and no evidence to show the amount of wages paid to a person at work in the same grade and class in the particular locality. Compensation apparently was awarded on a finding that the plaintiff’s average weeldy wages were at the rate paid by his employer during the time he had worked for him. On an appeal by the insurer from a decree of the Superior Court, entered in accordance with the decision of the Industrial Accident Board, it was held, that
    (1) There was no evidence to support the finding of the Industrial Accident Board.
    (2) The decision was reversed and the case was directed to be recommitted to the Industrial Accident Board for further hearing on the question of the weeldy wages of the employee under the final clause of G. L. c. 152, § 1, at which hearing either party was to be permitted to offer additional evidence.
    Certification to the Superior Court under the provisions of the workmen’s compensation act of a decision by the Industrial Accident Board affirming and adopting findings and rulings by a single member of the board and awarding compensation to the claimant, as described in the opinion.
    
      In the Superior Court, the case was heard by Morton, J. Material facts shown by the record are described in the opinion. A decree was entered in accordance with the decision of the Industrial Accident Board. The insurer appealed.
    The case was submitted on briefs.
    
      E. I. Taylor & W. H. Tribou, for the insurer.
    
      F. H. Magison, for the employee.
   Carroll, J.

In this proceeding under the workman’s compensation act, the employee was, at the time of his injury, in the general employment of one Torrey. The Sargent Coal Company hired Torrey to saw wood at a stated price per cord, Torrey “to furnish all help.” While engaged in this work the employee was injured and lost his right hand “below the wrist.” See G. L. c. 152, § 36 (a) (b).

The question in the case is the amount of the employee’s weekly wages. The Industrial Accident Board found that his average weekly wage was $19.20, and awarded general compensation at the rate of $12.80 a week from April 23, 1924, continuing subject to the provisions of the statute; and specific compensation at the rate of $10 a week for a period of fifty weeks. In the minority report it was found that the employee was entitled to general compensation at the minimum rate of $7; and specific compensation in accordance with such actual wage as can be determined.

The employee was not continuously employed by Torrey during the year preceding April 16, 1924, the date of his injury. He worked for several employers at different kinds of work. He testified that he worked for Torrey “about a week before the accident,” and in the summer before he was injured “off and on at different times . . . probably a couple of days a week . . . Some weeks he worked two or three days for Mr. Torrey and some weeks he worked only one day.” He further testified that Torrey paid him $.50 an hour. Torrey testified that from October, 1923, to April, 1924, the employee worked for him “ 'one day of seven hours and a few hours at odd times; maybe a total of eight or ten hours.’ He paid him fifty cents an hour at times, and forty cents an hour. . . . 'In this particular case I paid him forty cents an hour.’ ”

Apparently the board based the finding that the employee’s wages were $19.20 a week upon the ground that he was employed forty-eight hours a week at forty cents an hour.

By G. L. c. 152, § 1, “average weekly wages” means the earnings of the employee during the period of twelve calendar months immediately preceding the date of the injury, divided by fifty-two. “Where, by reason of the shortness of the time during which the employee has been in the employment of his employer” it is not practicable to compute the wages under this sentence of the statute, the average weekly amount of wages earned during the twelve months preceding the injury “by a person in the same grade employed at the same work by the same employer” may be considered, and “if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district.”

The wages of the employee could not be computed under the first sentence of the definition, because his employment by Torrey was not continuous throughout the year. As stated in Gillen’s Case, 215 Mass. 96, at page 97, this sentence refers to substantially uninterrupted work in a particular employment, from which the wages of the employee were derived. The clause of the section following has reference to a case where the employee has been in the service of his employer such a short period of time that the average weekly wages earned during the preceding twelve months by a person in the same grade as the injured employee, “employed at the same work by the same employer,” may be taken into account. There was evidence tending to show that no one was employed “at the same work by the same employer,” during the twelve months preceding the date of the employee’s injury. This part of the section, therefore, does not apply in estimating the employee’s weekly wages. By the final sentence of the definition, without reference to the same employment by the same employer, weekly wages may be ascertained, if the first two sentences are not pertinent, based on weekly wages received by a person “in the same grade employed in the same class of employment and in the same district.” Although there was no evidence to show the amount of wages paid to a person in the same grade and class in the particular locality, we think the case should be referred to the Industrial Accident Board for the purpose of determining, if possible, the amount of weekly wages paid to a person in the same grade and class as the injured employee, in the locality where he was employed. It may be that no evidence can be found bearing on this point, and that all the evidence relating to the question was presented at the former hearing; but on the record before us, there is no evidence to support the finding of the Industrial Accident Board. The employee was not at work continuously for twelve months for Torrey; there was no evidence that Torrey employed any one at the same work during the preceding twelve months; and there was no evidence to sustain the finding under the final sentence defining weekly wages.

The minority decision evidently had reference to § 34 of the statute, which provides for a minimum compensation of $7 a week for total incapacity; and to § 36 relating to minimum compensation for specific injuries other than those mentioned.

It remains to consider some of the cases bearing on the question of weekly wages under the workmen’s compensation act. In Gillen’s Case, supra, the employee was engaged in substantially continuous work as a longshoreman throughout the year, although employed by different steamship companies. In Gove’s Case, 223 Mass. 187, the employee was a carpenter and there was evidence of the rate of wages paid to carpenters in the district where he was employed. Bartoni’s Case, 225 Mass. 349, decided that average weekly wages in an employment, where, on account of weather conditions, there was no work to be done for a period of twelve and ninety-seven hundredths weeks, the average weekly wages of the employee were to be determined by dividing the total weekly amount of wages received during the preceding year by the actual number of weeks during which he worked. None of these cases are pertinent to the case at bar. In Rice’s Case, 229 Mass. 325, the employee was a spare time weaver working after school and all day on Saturday, and earning $3 a week; on the evidence her average weekly wages were to be determined according to her actual earnings. This case was followed in King’s Case, 234 Mass. 137, where the employee worked each Saturday night during the year for a newspaper company, and the amount actually earned was held to control in computing compensation to be paid. See Marvin’s Case, 234 Mass. 145, where this rule was applied; in this case the average weekly wages earned were below the minimum allowed by the statute, and minimum compensation was awarded.

The decree must be reversed and the case recommitted to the Industrial Accident Board for further hearing on the question of the weekly wages of the employee, under the final section of the statute referred to, at which hearing either party may offer additional evidence^

So ordered.  