EULALIA VELARDE De GALAVIZ, ISABEL GALAVIZ, GREGORIO GALAVIZ, JOSE GALAVIZ, RICARDO GALAVIZ, RUBEN GALAVIZ and EUGENIA GALAVIZ, Petitioners,
THE INDUSTRIAL COMMISSION OF ARIZONA, and RAY GILBERT, FRED E. EDWARDS and EARL G. ROOKS, as Members of the Industrial Commission of Arizona, and KENNECOTT COPPER CORPORATION, a Corporation, Respondents
APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award set aside.
Messrs. Moeur & Moeur, for Petitioner.
Mr. H. S. McCluskey and Mr. Fred O. Wilson, for Respondent Industrial Commission.
Messrs. Fennemore, Craig, Allen & Bledsoe, for Respondent Kennecott Copper Corporation.
[61 Ariz. 378] ROSS, J.
The dependents, consisting of the surviving wife and children, of Gregorio Galaviz have brought here for review the award of compensation by the Industrial Commission for the death of the said Galaviz while he was in the performance of his duties as an employee of the Kennecott Copper Corporation.
The question presented for our decision is the rule for determining the compensation that should be awarded the dependents of Galaviz.
At the time Galaviz met his death he was a regular employee of the Kennecott Copper Corporation, and had been for more than three years, unless a two weeks' vacation taken by him broke the continuity of his employment. The vacation period was from June 12 to June 26, 1942. He resumed his employment on June 27, and the fifteenth day thereafter, on July 12, 1942, met his death while at work.
There is no question of the right of his wife and children to have compensation. The only question for [61 Ariz. 379] us to decide is the measure of such compensation. The commission awarded compensation to the dependents on the basis of employment for less than thirty days, and it is the contention of such dependents that they should be compensated on the basis of continuous employment for thirty or more days before the employee was killed.
The determination of this question is made most difficult by the language employed by the Legislature in undertaking to prescribe a rule for the ascertainment of compensation. The statutory rule is different according to the time the injured or killed employee has been employed when the accident occurs. If he has been employed a month or more, his average wage during that time is made the yardstick by which the compensation is computed. If he has not been employed for thirty days before the accident causing his injury, the law provides another rule to govern in ascertaining the compensation.
It is apparent that the reason for adopting a different rule when the employment has been over a period of time as long as thirty days or more, than when it is less, is that the experience in the former case furnishes data upon which an average wage may reasonably be calculated, whereas in the latter there is no such data, and another rule must be used in calculating compensation.
The commission made its award on the theory that the workman when killed had
been an employee only since June 27, the date he resumed his work after his vacation. Section 56-952, Arizona Code Annotated 1939, or that portion we deem important, is so worded that no one, not even a King Solomon, can know from its language what it meant, unless he is advised ...