
    The State, ex rel. Brownell, v. Industrial Commission of Ohio.
    (No. 25858
    Decided May 20, 1936.)
    
      
      Mr. T. J. Duffy and Mr. William W. Weir, for relator.
    
      Mr. John W. Bricker, attorney general, and Mr. R. B. Zurmehly, for respondent.
   Matthias, J.

The relator seeks a writ compelling the Industrial Commission to determine the average weekly wage of the decedent upon the basis of his earnings for a year, and to include therein also his earnings from sources other than his employment with the contributing employer. It is fundamental that before such writ can issue it must be determined that the action demanded is such as the law especially enjoins as a duty resulting from an office, trust or station, and will issue only when it is clearly shown that there has been a plain dereliction of such duty.

The statutory provision fixing the basis upon which benefits shall be computed under the Workmen’s Compensation Law is Section 1465-84, General Code, which provides as follows: “The average weekly wage of the injured person at the time of the injury shall be taken as the basis upon which to compute the benefits.”

The question of the construction and application of this statute was before this court in the case of State, ex rel. Kildow, v. Industrial Commission, 128 Ohio St., 573, 192 N. E., 873. Although there was involved in that case the claim of an injured employee instead of that of a dependent of a killed employee, the principle involved is the same. The complaint there made of the action of the Industrial Commission was based upon the ground that the commission, in the exercise of the discretion conferred upon it by the statute, had included the period of six months prior to the injury in computing the average weekly wage of the injured employee. The claimant contended that in so doing the commission disregarded the phrase, “at the time of the injury.” The court held in paragraphs five and six of the syllabus:

11 Section 1465-84, General Code, is a mandatory statute and it does not invest the Industrial Commission with a discretion to apply its own rule in determining the average weekly wage of a claimant at time of injury.
“The words ‘at the time of the injury’ as used in that section mean that the Industrial Commission, in arriving at a basis for compensation, shall consider the shortest possible time immediately prior to the injury as will enable it to intelligently determine an ‘average weekly wage * * * at the time of the injury.’ ”

It is elementary that in the construction of a statute no part of the language employed therein should be disregarded. As stated by Stephenson, J., in the opinion in the case just cited: “The statute fixing the average weekly wage at the time of injury as the basis of compensation is about as plain as language can make it. The trouble has been that in its administration, the limitation ‘at the time of the injury’ seems to have been ignored. * * * In our opinion the words ‘ at the time of the injury’ require the construction that we must stick as close to the time of injury as the practical working of the statute will permit, venturing from it no further than will permit us to determine an ‘average weekly wage’.”

In that case it was held that the inclusion of a period of six months in the computation disregarded the phrase, “at the time of injury,” and that under the facts there presented a computation upon the basis of four weeks complied with the rule of reason that under the statute the basis of calculation should be the shortest practical time within which an average weekly wage at the time of the injury could be ascertained.

In the instant case the commission, evidently taking into consideration all facts presented affecting the question, went so far as to include the period of ten weeks in its calculation. In so doing, it adhered to the statute as construed by the court in the Kildow case, supra. To go further, as now insisted' by the relator, and include a period of an entire year would clearly be tantamount to an amendment of the statute, which is a legislative and not a judicial function. It must be concluded, therefore, that in the determination of the basis of computation of workmen’s compensation under Section 1465-84, General Code, the phrase, “at the time of the injury,” must be regarded as a limitation of the period to be considered in determining “the average weekly wage” to the shortest possible time immediately prior to the injury that will enable the commission to fairly and intelligently determine that question of fact. In the absence of a gross abuse of discretion, such finding is final. (State, ex rel. Kildow, v. Industrial Commission, supra, approved and followed.)

The commission was clearly right in excluding from its calculation the earnings of the decedent paid direct to him for repair work performed by him independently of his commission contract as a salesman. The facts are undisputed that this repair work was done on his own account for various persons who paid him directly therefor, no report and no accounting being required or made for such earnings, and consequently not considered in the calculation of premiums. With' reference to such service there was no contract of hire and hence no relationship of employer and employee between the decedent and the Warner Company. Coviello v. Industrial Commission, 129 Ohio St., 589, 196 N. E., 661.

It follows that under the undisputed facts presented the writ of mandamus prayed for must be denied.

Writ denied.

Weygandt, C. J., Stephenson, Williams, Jones and Zimmerman, JJ., concur.

Day, J.',

dissenting. I dissent from the judgment of the majority opinion but concur in the syllabus.

The Workmen’s Compensation Act provides that benefits should be computed upon the basis of “the average weekly wage of the injured person at the time of the injury.” This court, in the instant case and in the case of State, ex rel. Kildow, v. Industrial Commission, 128 Ohio St., 573, 192 N. E., 873, construed the words “at the time of the injury” as meaning that the Industrial Commission, in arriving at a basis for compensation, should consider the shortest possible time immediately preceding the injury as would enable it to intelligently determine an average weekly wage at the time of the injury. However, neither case attempts to declare what specific period of time constitutes “the shortest possible time” except that it must be of such duration as “will enable the commission to fairly and intelligently determine ’ ’ the average weekly wage. In other words, the period of time to be considered must depend entirely upon the facts and circumstances of the particular case under consideration, and that period of time which may be the shortest possible time in one case may be too short or too long a time in another case.

Now what are the facts in this case which should determine the period of time to be taken into consideration?

Decedent was a salesman of washing machines, employed on a commission basis, having been in the service of the same employer for considerably more than a year. The product he was selling was seasonal, the volume of sales increasing during certain seasons of the year and declining in other seasons of the year; so that decedent’s earnings during the year increased and diminished accordingly.

Decedent was injured on January 4, 1932. During the year preceding his injury his earnings amounted to $1123.68, or an average.of $21.61 per week. In arriving at decedent’s average weekly wage the commission considered the 10 1/7 weeks preceding decedent’s injury, which period represented the slump season of decedent’s employment, and determined his average weekly wage to be $3.52. In making its findings the commission said that “decedent’s commissions sharply declined after August 22, 1932, due to the combined effects of the seasonal slump [italics mine] and the general depression in business, and that decedent only earned as commission from that date to the date of his injury, January 4, 1932, a total amount of $110.65 and that for the period of 10 1/7 weeks prior to his injury he earned commissions amounting to $35.81 and was paid that amount by the employer in two payments or an average weekly wage of $3.52 which the commission now determines was the decedent’s average weekly wage at the time of injury.”

Notwithstanding the fact that the commission finds that the seasonal slump contributed to the sharp decline in decedent’s earnings, the majority opinion refuses to consider the element of seasonal slump and holds that 10 1/7 weeks is sufficient for an intelligent determination of the average weekly wage.

The commission admits that the seasonal slump played a part in the decline of decedent’s earnings, but does not undertake to state what part it played, large or small, and it cannot fairly so state because it is not a matter subject to specific proof; nor can the commission find the extent to which the economic depression affected decedent’s income because that likewise is not a matter capable of proof. The commission therefore is without facts concerning that question and may be said to be in doubt as to the effect of either upon decedent’s income or the relative role each played in effecting the slump in earnings.

This being a case under the Workmen’s Compensation Act, which was enacted for the benefit of injured employees and their dependents, all matters of doubt must be resolved in favor of the workman and his dependents, and the commission would be justified, under the circumstances in the case, in finding that decedent’s earnings were affected chiefly by the seasonal slump rather than by the depression. This being so, what, in fairness to the workman and his dependents, should be the shortest possible period of time to be considered in order to intelligently arrive at his average weekly wage? Is it just and fair to consider only the period of the workman’s seasonal adversity in determining his average weekly wage, or is it more intelligent and fair to take a period of time which is more representative of decedent’s earnings, which, in seasonal occupations, should include the high and the low cycle of earnings? The average weekly wage, the majority opinion says, must be arrived at logically. Has it been done in this ease? When this court says that the shortest possible period of time is to be considered, I take it to mean such a period of time as is reasonable in the light of all the facts and circumstances present in the particular case: The seasonal nature of the business should therefore be considered so that the period of time included shall not centralize either upon the high or the low compensation periods, but one which includes both. The shortest time possible is neither two weeks, ten weeks, nor six months, nor a year, but such a reasonable period of time preceding decedent’s injury as will make it possible for the commission to intelligently arrive at a representative weekly wage of decedent’s earnings. Any other application of the rule may lead to harsh results, as it does in this case.

A period of one year preceding decedent’s injury, including the maximum and the minimum, the highest and the lowest cycles of earnings, is, in my opinion, the shortest possible time required in the instant case to intelligently arrive at decedent’s average weekly wage.

As to the earnings of decedent resulting from repair work performed by him independently of his commission contract as salesman, I concur with the majority in holding that the commission was right in excluding such earnings from its calculations.  