{
  "id": 6649938,
  "name": "FARM AIR CORPORATION v. Doris READER, Widow of Billy F. READER, deceased",
  "name_abbreviation": "Farm Air Corp. v. Reader",
  "decision_date": "1984-03-28",
  "docket_number": "CA 83-202",
  "first_page": "72",
  "last_page": "78",
  "citations": [
    {
      "type": "official",
      "cite": "11 Ark. App. 72"
    },
    {
      "type": "parallel",
      "cite": "666 S.W.2d 717"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "255 Ark. 951",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8725756
      ],
      "weight": 3,
      "year": 1974,
      "opinion_index": 0,
      "case_paths": [
        "/ark/255/0951-01"
      ]
    },
    {
      "cite": "266 Ark. 802",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8722919
      ],
      "weight": 2,
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/ark/266/0802-01"
      ]
    },
    {
      "cite": "262 Ark. 398",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1675959
      ],
      "weight": 2,
      "year": 1977,
      "opinion_index": 0,
      "case_paths": [
        "/ark/262/0398-01"
      ]
    }
  ],
  "analysis": {
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    "char_count": 10092,
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    "pagerank": {
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  "last_updated": "2023-07-14T21:16:17.677907+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Cloninger and Corbin, JJ., agree."
    ],
    "parties": [
      "FARM AIR CORPORATION v. Doris READER, Widow of Billy F. READER, deceased"
    ],
    "opinions": [
      {
        "text": "Melvin Mayfield, Chief Judge.\nBill Reader was killed in an airplane crash on May 21, 1980, while working as a crop duster for Farm Air Corporation, an uninsured employer. His widow, Doris Reader, filed a claim in the Workers\u2019 Compensation Commission for dependency benefits and was awarded $126.00 per week.\nThe only issue on appeal is the amount of the award. It is Farm Air\u2019s contention that the deceased was a seasonal employee who had worked only three days the year he was killed and that the Commission\u2019s award based on earnings for that short period was improper.\nThe appellant operated a flying service to apply various substances to soybeans, wheat, and rice. The work generally began around the second week in May when they started applying herbicides and continued until the middle of September when they finished applying fertilizer to rice fields. Occasionally there was some work in the late fall applying defoliants. Reader had worked as a pilot for the corporation since its inception in 1978. He earned 25% of the gross charges for the work he performed.\nIn 1980, Reader started working on May 19 and had flown five jobs when his plane crashed. There was testimony that his commission on these jobs would have been $376.50. This did not include the job he was flying at the time he crashed. The president of the corporation testified that he gave Mrs. Reader $300.00 for Mr. Reader\u2019s work on that job.\nThis case involves the application of the following portions of Ark. Stat. Ann. \u00a7 81-1312 (Repl. 1977):\nCompensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident, and in no case shall be computed on less than a full time work week in the employment.... If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the Commission may determine the average weekly wage by a method that is just and fair to all parties concerned.\nIt is clear that the law judge based the amount of his award upon the amount earned by Reader during the three days he worked in 1980, and the Commission adopted the law judge\u2019s finding. The appellant argues that this was unfair to appellant and that the Commission should have applied the last sentence of the section to make a determination of Reader\u2019s average weekly wage by a method that was \u201cjust and fair\u201d to all parties.\nThe appellant, however, is not very specific in its suggestions as to the method that would be \u201cjust and fair\u201d. Implied in its argument is the contention that whatever amount of earnings is used \u2014 whether those of the previous year or only those earned during 1980 \u2014 the amount should be spread out over a full year. In other words, if earnings for 1979 are used, the appellant would find the average weekly wage by taking the total amount that was earned in the approximately four months worked in 1979, and divide that amount by 52; and, if only the earnings for the three days in 1980 are used, the appellant would convert that into the amount that would have been earned in the four months that Reader expected to work in 1980, and would divide that amount by 52.\nThe only cases cited by appellant are Travelers Insurance Co. v. Perry, 262 Ark. 398, 557 S.W.2d 200 (1977) and Ryan v. NAPA, 266 Ark. 802, 586 S.W.2d 6 (Ark. App. 1979), neither of which is really on point. In Travelers the employee was not even a seasonal employee. At times he made himself available for work to Manpower, Inc., an organization that provided workers for employers who needed temporary help, but he had no contractual arrangement that required him to work or to be available for work. In Ryan the employee was a four-hour per day worker whose claim that she was required to be available for a full eight hours was rejected.\nThe appellee defends the Commission\u2019s award in this case on the basis of assumptions which it says the evidence would support. Thus the appellee argues that we should affirm because the Commission\u2019s decision is supported by substantial evidence. It is clear, however, that the appellee agrees with the Commission\u2019s refusal to spread Reader\u2019s seasonal earnings over a 52-week period and use that as the basis for the calculation of average weekly wage.\nWe recognize that there is force in appellant\u2019s argument, but we have concluded that the Commission\u2019s award should be affirmed. Our decision is based upon the following considerations.\nFirst, we agree with the appellant\u2019s contention that the Commission could have used a better basis in making the determination of the employee\u2019s average weekly wage. Our problem, however, is the same problem that the appellant had in suggesting what method the Commission could have used under its \u201cj ust and fair\u2019 \u2019 authority that would be of help to appellant. The president of the appellant corporation testified that Reader was paid $13,101.68 for his work in 1979, that Reader started working around the first week in May that year, and that the flying season ended the last of August or first of September. There were 123 days in the full four-month period involved, of which 17 were Sundays, and since they did not work Sundays, that leaves 106 working days. Dividing 106 into $13,101.68, we get $123.60 per day. Using the six days worked per week, we get an average weekly wage of $741.60. It is conceded that Mrs. Reader is entitled to benefits of 35% of the average weekly wage, Ark. Stat. Ann. \u00a7 81-1315(c) (Repl. 1977), subject to the maximum weekly benefit of $126.00, Ark. Stat. Ann. \u00a7 81-1310(b)(A) (Supp. 1983). Since 35% of $741.60 would be greater than the maximum allowance, it is of no help to appellant for the Commission to base the average weekly wage on the 1979 earnings unless, as appellant has suggested, these earnings are spread out over the entire year.\nAt this point we are faced with the second reason that impels our affirmance. The appellee cites and relies upon Gill v. Ozark Forest Products, 255 Ark. 951, 504 S.W.2d 357 (1974). The employee in that case seldom worked a full five-day week. This was because of the nature of the timber industry in which he was employed. His work agreement was for a five-day week whenever work was available, but his employer made work available based upon weather conditions and the timber supply.\nIn determining the employee\u2019s average weekly wage, the Commission used the previous 52-week period, but ignored one week in which the employee worked only one day and 18 weeks in which he worked only two or three days per week. The Commission then used the balance of 33 weeks, in which the employee worked either four or five days per week, and calculated the average weekly wage on the earnings for those 33 weeks. On appeal the Arkansas Supreme Court held that the average weekly wage should be based on a full week\u2019s pay.\nThe statutory law in effect during the period involved in the Gill case is still in effect now. While the factual situation there was different from the factual situation in the case at bar, the principle is the same. Obviously, the court in Gill did not think there were exceptional circumstances which required the Commission to devise some \u201cjust and fair\u201d method to replace \u201cthe average weekly wage earned by the employee under the contract of hire\u201d as the basis on which compensation benefits should be computed. In the present case we do not approve of the method used by the Commission. It used less than a \u201cfull time work week\u201d contrary to the statute, and even if there had been a full work week to use, there probably still would have been exceptional circumstances to require the employee\u2019s 1979 earnings to be used in determining the average weekly wages. We do not, however, think there are exceptional circumstances in this case that would make it just and fair to both parties to take the wages earned in 1979, divide that amount by 52, and use that figure as the average weekly wage.\nIn discussing average wage computation, 11 Schneider, Workmen's Compensation Law \u00a7 2175 (perm. ed. 1957), states:\nThe computation of such average wage, under particular fact situations, often becomes difficult in one\u2019s effort to arrive at a result just and fair to both employee and employer. It is generally considered contrary to that concept and against public policy to so compute an employee\u2019s wage that it will result in a compensation award that pays the employee more during his period of disability than he is accustomed to earn in his usual or normal year around activity.\nIn the instant case, $126.00 per week for 52 weeks will pay this widow $6,552.00 per year. This is certainly not more than her husband was earning at the time he was killed. So while we do not approve of the method used by the Commission in the determination of the average weekly wage of the deceased employee, we see no other method, which we think would be just and fair to both parties, that would make any difference in the amount of benefits to be paid the appellee.\nA third consideration in our decision to affirm is the fact that our Workers\u2019 Compensation Act contains no specific provision dealing with seasonal employment. To hold that the 1979 earnings have to be spread out over the whole year for the purpose of determining the employee\u2019s average weekly wage, it seems to us, would go further than the use of a more appropriate basis to compute the wage, and would, in this case, be tantamount to legislating policy in regard to seasonal employment.\nFinally, we note the statement in Gill, supra, that \u201cit is well established in workmen\u2019s compensation cases \u2018that when doubt exists we must remember the Workmen\u2019s Compensation Act is remedial and should be construed liberally to effectuate its purpose.\u201d\nBased upon the above considerations, we affirm.\nCloninger and Corbin, JJ., agree.",
        "type": "majority",
        "author": "Melvin Mayfield, Chief Judge."
      }
    ],
    "attorneys": [
      "Bill Bristow and Harry Ponder, for appellants.",
      "Frank Lady, for appellee."
    ],
    "corrections": "",
    "head_matter": "FARM AIR CORPORATION v. Doris READER, Widow of Billy F. READER, deceased\nCA 83-202\n666 S.W.2d 717\nCourt of Appeals of Arkansas Division II\nOpinion delivered March 28, 1984\nBill Bristow and Harry Ponder, for appellants.\nFrank Lady, for appellee."
  },
  "file_name": "0072-01",
  "first_page_order": 92,
  "last_page_order": 98
}