Scott v. G. A. C. Finance Corp‪.‬

Joseph B. McDuffee, along with two co-workers, sustained an industrial injury on June 24, 1969, and his claim was duly accepted for benefits by appellee insurance carrier. On July 17, 1969, the Commission issued its notice of average monthly wage which set petitioners wage at $901.60. Pursuant to petitioners timely request, a hearing was held on May 21, 1970, at which time petitioner and his co-workers, Arthur O. Martinez and Antonio Torres, all represented by the same counsel, presented evidence concerning their earnings from respondent employer. At the hearing claimant Martinez also presented evidence of additional earnings he had received from "moonlighting" activities. The hearing officer, on May 28, 1970, entered an award which set petitioners average monthly wage at $887.84 and on June 24, 1970, petitioner filed a Request for Review. On July 16, 1970, petitioner filed with the Commission a document entitled "Request For Supplemental Hearing-or-In The Alternative, For Commission To Consider Newly Discovered Evidence Contained In Affidavit." Petitioners request and affidavit stated that he too had earned additional wages from "moonlighting" activities, that he had failed to present evidence of these earnings at the hearing, that such earnings should be considered in determining his average monthly wage, and that if those earnings were to be considered they would support a finding that petitioners average monthly wage was $1,363.70. Attached to petitioners affidavit were Wage and Tax Statements which supported his claim that he had earnings from employers other than respondent employer during the period in question. On July 22, 1970, the Commission entered its Decision Upon Review affirming the hearing officers award. Petitioner contends that it was an unlawful abuse of discretion by the Industrial Commission to refuse to consider the additional evidence or award petitioner a supplemental hearing.