Plaintiff advances an able and appealing argument to the effect that since five days a week was the full time it could employ the deceased employee, such must be the working week for the basis of computation of compensation; that to base compensation on a seven-day week when he could not under the law work more than a five-day week is to give him a better basis for disability wages than ability wages; that on such basis, a workman might be better off in some cases under compensation than under wages. For instance, if the code should shorten the work week to three days and the wage should be $5 a day under the basis used by the commission, the compensation would be the maximum of $16 (60 per cent of 7 x 5=21, making the maximum of $16 apply) whereas the actual wage would be $15.
Alluring as the argument is, I think it must fail. It is true that under the compulsory shortened work weeks, some amendments to the act may be needed, but the fact that an employee may get more as a disability wage than as an ability wage may be chargeable to an industrial economy which in the first place may have cut the ability wage far below its justifiable figure. Should one who is injured have his disability wage cut to an unjustifiable figure because our national economy failed to give him a sufficient wage *Page 449 when working? When an employee is injured, not only is his compensation generally less than his wage, but he is rendered incapable during the period of injury of finding more remunerative work. It is admitted that it may require closer scrutiny for malingerers.
The statute recognizes only a five and one-half, a six, and a seven day week. The fact that by agreement of companies under a code or by imposition by law, the maximum working hours or days are fixed, cannot change the outside limits of the week as a basis for computation of compensation. It must be considered not that the law fixed a different week superseding the week as fixed by the Industrial Commission Act, but that the law imposed part time as compared to what the employee might work if not restrained. Hence, the "part time" provision, section 42-1-70 (3) (f), R.S. Utah 1933, applies. If the law should, in order to distribute employment, cut down the permitted days per week to two, the workman would under plaintiff's theory receive only 60 per cent of $10 or the minimum of $7 per week compensation. This suggests the reverse of the question asked by plaintiff. Why should the workman suffer in his disability wage because the law, without his consent, requires him to accept a smaller wage when well? I concur.