Gaulkin, Foley and Collester. The opinion of the court was delivered by Gaulkin, S.j.a.d.
Burpee was awarded workmen's compensation, but he appeals (1) the setting of the compensation rate at $26 per week, (2) the ruling that the statute does not permit the allowance of a fee to his attorney for the services rendered in the Division, and (3) the method fixed by the County Court by which Princeton Municipal Improvement Company, the employer, is to reimburse him for attorney's fees which he paid in obtaining a $15,000 recovery in a third-party action. The employer cross-appeals on the ground that petitioner failed to establish what part of his disability was due to the accident which happened at work on May 1, 1957, and what part was due to a subsequent non-work-connected automobile accident.
Taking the cross-appeal first, we note that the Division and the County Court found all of the disability (100% of total) due to the May 1 industrial accident. We find sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the judge of compensation who heard the witnesses to judge of their credibility, to justify that finding and therefore we affirm it. Close v. Kordulak Bros., 44 N.J. 589 (1965).
Burpee was employed as a waiter. From the employer he received $25 per week. However, he received tips from patrons
which he contends should have been added in determining his weekly wage.
N.J.S.A. 34:15-37 provides in part:
"Gratuities, received regularly * * * shall be included in determining the weekly wage only in those cases where the employer or employee has kept a regular daily or weekly record of the amount * * *. If no such record has been kept, then the average amount of the weekly gratuities shall be fixed as ten dollars per week." (Emphasis ours)
Burpee was a deacon and an elder in his church. He testified that he deemed it a religious obligation to give one-tenth of his earnings to the church, and that he had done so faithfully every Sunday. The head elder and chief auditor of the church produced the envelopes in which Burpee's donations had been made, on which there had been noted the amounts enclosed. Burpee testified he had no income other than his wages and tips. Therefore, he argues, it is a simple matter to compute his tips from the envelopes.
The judge of compensation and the County Court held that this was not a "regular * * * record of the amount" of the tips within the meaning of the statute. We agree.
The question is not whether Burpee told the truth, but what the statute requires. If all that the Legislature intended was proof, it did not need to speak of a record, much less a "regular * * * record." It could merely have said "proof," or "clear and convincing proof," or "proof beyond a reasonable doubt." It did not -- it said a ...