Czyzowski v. Washburn Wire Co. , 102 R.I. 159 ( 1967 )

Per Curiam.

This is an employee’s petition for review. He .alleges that his “Weekly payments of compensation have been based on an erroneous average weekly wage” and, although not articulated, his request is that the alleged error be- corrected. A single commissioner found that the petitioner’s average weekly pre-injury wages were $126.29. He based his computations upon the wages received by the petitioner in the four weeks prior to the injury during which the hours worked were forty or more. On appeal the full commission used a different standard. It predicated its .determination of the petitioner’s average weekly preinjury earnings upon the wages he earned during the four weeks immediately preceding the date of his injury. That formula produced a resultant of $113.05, a figure identical with what the parties themselves had fixed as the petitioner’s average weekly pre-injury wages in their preliminary agreement. In view of that identity the commission found no error to correct and entered a decree denying and dismissing the appeal. The cause is now here on the petitioner’s appeal from that decree.

During oral argument the parties agreed that the amount of partial compensation petitioner is presently receiving will be unaffected by a resolution of whether petitioner’s “Weekly payments of compensation have been based on an erroneous average weekly wage.” In the circumstances, any determination we may now make of whether or not the preliminary agreement correctly sets forth petitioner’s average pre-injury weekly earnings will have no direct and present effect on the amount of compensation he is entitled to receive. Because we will not adjudicate where there is no subject matter on which our judgment will operate, the issue raised in the petition is not presently justiciable. Industrial National Bank v. Isele, 101 R. I. 734, 227 A.2d 203; Kimball v. Pelosi, 96 R. I. 429.

The petitioner’s appeal is denied and dismissed without prejudice to his right in the future to seek a determination of whether his weekly payments of compensation have been based on an erroneous average weekly wage, the decree • appealed from is affirmed subject, to its first being amended to provide that it is without prejudice as aforesaid, and the cause is remanded to the workmen’s compensation commission for further proceedings.

Abedon, Michaelson, Stanzler and Biener, Richard A. Skolnik, for petitioner. Edward Bromage, Jr., Henry M. Swan, for respondent.