I am unable to agree with that part of the majority opinion relating to the amount of compensation allowed. The law says that the claimant shall be paid on the basis of "sixty-six and two-thirds per centum of the weekly wages received at the time of the injury" but limited to the maximum and minimum allowances of $21 and $8 per week. This can mean only one thing, and that is that the wages received each week working full time shall be the basis of computation. What shall constitute full time employment is a matter of contract between the employer and the employe. When they agree upon the number of work days in the week, each is bound thereby. Neither the employer nor the employe can demand more days. And the total wages received in a week when working full time in such employment is the weekly wage.
The employe in this case was working five days a week and paid at the rate of $5.25 per day. For full time employment he received $26.25 each week. That was his weekly earnings, his weekly wages. That is the fact. Sixty-six and two-thirds per cent. of this weekly wage is $17.50, and that is the amount which should be allowed as the weekly compensation. For twenty-six weeks the total amount is $455, instead of $546 allowed by the board.
The board, in its findings, says that "the Compensation Law requires the Board, in figuring compensation to multiply the daily wage by six to arrive at a weekly wage basis upon which to base the rate of compensation." That was done, and the District Court sustained the board.
The Compensation Law does not expressly require the board *Page 415 to compute compensation on the basis of a six work day week. That is the board's interpretation of the law. As the basis of such interpretation they take the definition of the word "week" as stated in the law as controlling. The Compensation Law, in a list of word and phrase definitions, says that `Week' means six working days, but includes Sundays." This definition, they say, must be taken into account whenever the week is a matter of consideration, and so when "weekly wages" is spoken of in the law it means the earnings of a six working day week, and nothing else.
The definitions given in the law are not made absolute, the general provision as to the effect to be given being that "Unless the context otherwise requires, words and phrases employed in this Act shall have the meanings hereinafter defined."
The subject that is referred to in the language that is to be construed is a matter of fact, an actuality, something that has already transpired, the weekly wage which the claimant received at the time he suffered the injury. Upon inquiry we find that it was $26.25. That was what he received each week for a full week's work. It was his weekly wage. The time he put in each week was five eight hour days. That was his regular full time employment. As stated in the majority opinion, it was agreed that at the time of the injury, that was the usual work week in the mining industry.
To place the construction contended for upon the language employed gets away from the facts, and finds something to be a fact which is not true. Multiplying his daily wage by six gives him credit for one day that he did not work. It throws into his labor total one day's labor that someone else performed in the industry in which he was employed, and a day's earnings that was received by someone else. The legislature could not have intended any such result and we should not find it to be so unless such intention was clearly expressed.
The cases cited by respondent in support of the contention for the six day week deal with part-time employment and intermittent employment and some of them under statutes specifying *Page 416 exactly how the computation shall be made in such circumstances. Here we have no such problem nor have we any express legislative direction as to how it should be dealt with if that were the problem. In the instant case, claimant was working in full time employment. Five days per week was the regular work week in the industry in which he was employed and in the particular employment in which he was engaged. There is no question of loss of time in the employment. He was working full time. The problem is simple and it is only under the strained and unwarranted interpretation of the law that the difficulty arises and the unreasonable and unfair result is obtained.