Iverson v. Gordon Farming Co., Inc.

BAKES, Chief Justice,

dissenting:

The majority opinion seems to be merely remanding this case to require the commission to make more specific findings on the issue of manifest injustice. While such a remand is unnecessary in my view, I would have no great objection to such a remand except for the ambiguous discussion of the issues that the majority engages in with which I cannot agree.

The majority asserts that because of an “unauthorized stipulation Iverson was denied his right to a hearing before the Industrial Commission and this is sufficient to establish a colorable claim of manifest injustice thereby requiring the Commission to grant a hearing.” With that simple statement I could agree, were it not for the action of the majority in then questioning the referee’s finding that no manifest injustice existed, after the referee had conducted a hearing and taken evidence on the issue.

It is clear to me that there are at least two reasons contained in the evidence in this record upon which the referee could have based his finding of a lack of manifest injustice. One reason is that the employment of Iverson by Gordon Farming was only casual at best. Under I.C. § 72-212(2), Iverson’s claim could not have been granted if his employment was “casual.” This is probably one reason why the commission found no “manifest injustice.”

The evidence strongly indicates that Iverson’s employment by Gordon Farming was very casual. Iverson testified that he had been living with a woman who was residing in a small residence on the farm since August of 1975. He first worked for Gordon Farming for two days in October of 1975, discing rows of beans and baling some hay. He testified that his compensation for those two days of work was “a half pound of pot.” In addition to being casual, that employment was exempt because it was agricultural employment. I.C. § 72-212(8). Gordon Farming next hired Iverson to clean up Gordon’s semitruck which they used to haul their crops to the warehouse. Iverson testified that he spent about fifty hours on that job and was paid $200.00. David Gordon, the partner who hired Iverson, testified that Iverson spent about three or four days working on the truck. That work was done so that Gordon Farming could commence hauling beans to California and was performed a couple of weeks before the fateful trip on December 17,1975.

At some point during this period, it was agreed that Iverson would accompany David Gordon as co-driver to haul a load of beans to California. Iverson’s payment was to be expenses plus seven cents per mile. Gordon testified that Iverson was asked along on the trip because Iverson was familiar with the California area and Gordon was not. Gordon stated, “It’s pretty hard to drive and read a map at the same time and he had been in that area before and it was just a deal to work out getting the truck going.” Gordon testifed that the agreement covered only the one California trip.

Iverson’s total employment for Gordon Farming was thus, two days of exempt farm work in October, 1975, for which he was paid “a half pound of pot”; three or four days of working on the truck for which he was paid $200 in early December, 1975; and part of one trip driving the truck on December 17, 1975, paid by the mile, during *534which the relevant accident occurred. The commission would have been justified in finding that Iverson’s employment was “ ‘merely incidental and occasional, without regularity and for a limited and temporary purpose and was not regular recurring employment which was customary and to be anticipated with regularity,’ and hence the accident was not compensable.” Dawson v. Joe Jester Artificial Limb Co., 62 Idaho 508, 510, 112 P.2d 494 (1941); see Bigley v. Smith, 64 Idaho 185, 129 P.2d 658 (1942). Thus, the commission’s finding of no “manifest injustice” is supported by this evidentiary record which discloses that the employment was “casual” and thus not covered employment, I.C. § 72-212(2), and the commission should be affirmed on that basis. However, the majority appears to want more detailed findings of fact, and thus this remand to the Industrial Commission results.

The other reason, clear from this record, that the commission could have found lack of a “manifest injustice” lies in the fact that there is insufficient evidence upon which to base a calculation of Iverson’s average weekly wage under I.C. § 72-419. The majority indicates that “a method for computation is provided by I.C. § 72-419.” The majority here is equating the existence of a method of calculating average weekly wages with the evidence necessary to apply that method of calculation. The two are entirely separate, and the majority’s merger of the two is confusing.

The method of calculating average weekly wages under I.C. § 72 — 419 requires either a history of wages earned in the particular employment or where, as in this case, there was no wage history, then an agreed or customary wage rate together with some evidence of the amount of employment the claimant could reasonably have expected. Thus, in this case, where there was no history of wages in driving the truck, the claimant had to prove both that he had an agreed or customary wage rate, coupled with the prospect of continued future employment. Here there was an agreed wage rate, i.e., seven cents per mile plus expenses, but there was no evidence that there would be any further employment after the one trip. Consequently, there was no evidence upon which the commission could determine that the claimant Iverson would have driven any future miles in order to determine what his average weekly wage might have been.

The existence of a method of calculation does not satisfy the need for evidence of either a history of wages or of an agreement, express or implied, of continued future employment. The statutory method of calculation creates the need for evidence of an employee’s wages so that the average weekly wage may be calculated. In this case there is no evidence upon which to base a finding of an average weekly wage for Iverson, and therefore the commission would have been justified in denying Iverson’s original claim. Because they would have been justified in denying that claim, such lack of evidence would have been a sufficient reason for the commission to deny Iverson’s petition to reopen based on a lack of manifest injustice.

As asserted in the majority opinion, the commission was justified in permitting Iverson to reopen his case. However, that does not mean that Iverson’s claim must then automatically be granted. Upon remand the commission would be justified in finding a lack of manifest injustice either because Iverson’s employment was merely casual and thus not covered under I.C. § 72-212(2), or that there is a lack of evidence of either wages to be paid, or the amount of work which could be expected, upon which to base an award.