Floyd Hartshorn Plastering Co. v. Industrial Commission, 1

• Decision Date: 07 March 1972
• Docket Number: No. 1,CA-IC,1
• Citation: 494 P.2d 398,16 Ariz.App. 498
• Parties: FLOYD HARTSHORN PLASTERING COMPANY, Inc. and Liberty Mutual Insurance Company, Petitioners, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Arthur O. Martinez, Jr., Respondent Employee. 540.
• Court: Arizona Court of Appeals

Page 398

494 P.2d 398

16 Ariz.App. 498

FLOYD HARTSHORN PLASTERING COMPANY, Inc. and Liberty Mutual Insurance Company, Petitioners, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Arthur O. Martinez, Jr., Respondent Employee.

No. 1 CA-IC 540.

Court of Appeals of Arizona, Division 1, Department B.

March 7, 1972.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Ralph E. Mahowald, Jr., Phoenix, for petitioners.

William C. Wahl, Jr., Chief Counsel, Phoenix, for respondent The Industrial Commission of Arizona.

W. Mercer Bouldin, Tucson, for respondent employee, Arthur O. Martinez, Jr.

HAIRE, Presiding Judge.

On this review by certiorari of an award entered by the Industrial Commission in a workmen's compensation proceeding, we are presented with two questions relating to the establishment of a claimant's average monthly wage. The first of these concerns whether the Commission erred in considering part-time wages from different employers in its determination of the average monthly wage of a claimant injured while engaged in his full-time employment. The second question concerns whether, in computing the average monthly wage, the Commission may retrospectively raise the prior wages received by a claimant so as reflect a pay raise received 23 days before his industrial injury.

The pertinent facts are as follows. On June 24, 1969, the claimant was injured in an accident which arose out of and in the course of his employment with petitioner Hartshorn Plastering Company. A claim was filed with the Commission and subsequently accepted by the employer's private insurance carrier, petitioner Liberty Mutual Insurance Company. The insurance company, as required by A.R.S. § 23--1061, subsec. F (1971) issued its notice of average monthly wage calculation. This was approved by the Commission. The claimant disagreed with the average monthly wage determination made by the insurance carrier and approved by the Commission, and timely requested a hearing to establish his average monthly wage. At the hearing evidence was presented concerning his earnings with his full-time employer, petitioner Hartshorn. In addition evidence was presented concerning earnings from part-time employment with other employers during the period from October 3, 1968 through the date of his injury, June 23, 1969. The part-time employment was in the same occupation as claimant's full-time employment and was generally performed on Saturdays or Sundays, or at nighttime during the week. The part-time employment was not on a regularly scheduled basis, but rather was sporadic in nature. Claimant testified that all of his part-time employers carried industrial insurance.

Following the hearing the hearing officer issued his Decision Upon Hearing and Findings and Award Establishing Average Monthly Wage, finding that the claimant's average monthly wage was $877.50, an amount substantially in excess of that previously set by the insurance carrier. Upon timely request the Commission reviewed, and, by majority vote, affirmed the hearing officer's determination.

The average monthly wage established by the hearing officer was based in part upon the claimant's earnings from his part-time employment, and also took into consideration an upward adjustment of past monthly earnings so as to project retrospectively a pay raise received by claimant 23 days before his industrial injury. This retrospective adjustment was applied to his earnings from the full-time employer and to his earnings from part-time employment.

From our research concerning the questions presented on this review, it is apparent that there is much confusion in the Arizona decisions and statutes establishing the principles which govern the determination of an industrially injured workman's average monthly wage. It therefore would appear helpful in bringing some order out of this confusion to analyze the various statutory enactments touching on this subject. The first statute setting forth the principles governing the determination of an injured workman's average monthly wage was a part of Arizona's workmen's compensation act enacted into law as Chapter 83 Ariz.Laws of 1925. Section 70 of that act reads as follows:

'Section 70. Every employee in the employ of an employer within the provisions of this act, who shall be injured by accident arising out of and in the course of employment, or his dependents, as hereinafter defined, in case of his death, shall be entitled to receive the following compensation on the basis of Average monthly wage at time of injury. The term 'average monthly wage' shall be construed to mean the average wage paid during and over the month in which such employee shall be killed or injured. In the event that such employee shall be working under a contract with his employer under the terms of which said employee shall be guaranteed any amount per diem or per month, notwithstanding the contract price for such labor, then and in such event said employee or his subordinates or employees working under the terms of said contract, or his or their dependents as hereinafter defined in case of death, shall be entitled to receive the following compensation on the basis only of the guaranteed wage as set out in said contract of employment, whether such amount is paid on a per diem basis or on a monthly basis, provided that in no event shall such basis be less than such wages as are paid to employees for similar work not under contract.' (Emphasis supplied).

This identical language later became § 1438, Revised Code 1928. It is important to note that under the language of this original average monthly wage statute, 'average monthly wage' is defined in such a manner as to base the determination of the average monthly wage on the average wages paid during and over the One month period immediately preceding the employee's injury. There were no alleviating statutory provisions to take care of the workman who had not been continuously employed for the thirty days immediately preceding his injury.

Apparently recognizing the inequity of the original statute, in 1933 the legislature amended § 1438, Revised Code of 1928 so as to read as follows: ¹

'Sec. 1438. Measure of compensation; total and partial disabilities. Every employee of an employer within the provisions of this article, who shall be injured by accident arising out of and in the course of employment, or his dependents, as hereinafter defined in case of his death, shall receive the compensation herein fixed, on the basis of monthly wage at time of injury. The term, 'Monthly wage,' shall mean the average wage paid during and over the month in which such employee was killed or injured. In all instances in which the injured or killed employee had not been continuously employed for the period of thirty days immediately preceding the injury or death, the average monthly wage shall be such sum as, having regard to the previous wage of the injured employee, or of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, reasonably represents the monthly earning capacity of the injured employee in the employment in which he was working at the time of the accident. If the employee was working under a contract with his employer under the terms of which the employee was guaranteed an amount per diem or per month, notwithstanding the contract price for such labor, then said employee or his subordinates or employees working under the terms of said contract, or his or their dependents in case of death, shall be entitled to receive the compensation on the basis only of the guaranteed wage as set out in said contract of employment, whether such amount was paid on a per diem basis or on a monthly basis, provided that in no event shall such basis be less than the wages paid to employees for similar work not under contract.' (Emphasis supplied). Chapt 11, § 6, Ariz.Laws of 1933, First Special Session.

By adding the emphasized language the legislature obviously intended to recognize that in situations not involving continuous employment for the thirty days prior to injury, the Commission could consider other factors, including the wages earned by the claimant in prior months in determining the claimant's 'monthly wage' at the time of injury. ² Another important change was also made by the 1933 amendment, and the purpose of this change is not quite so obvious as the added language discussed above. By this latter change, no longer was the injured claimant to be compensated on the basis of his 'average monthly wage' at the time of injury. The word 'average' is dropped and compensation is to be based upon the claimant's 'monthly wage'. It is clear that this omission of the word 'average' was no mere draftsman's error--the word 'average' was also dropped in the definition sentence. A logical explanation of this omission would be the recognition that with the addition of the provision allowing the consideration of prior months' compensation (over and above the compensation for the immediately preceding thirty days) in cases involving non-continuous employment during the thirty days immediately prior to the injury, the term 'average' became overly confusing since its use would imply that in All instances more than one month's compensation would be considered in determining the monthly wage. It could thus be argued that the draftsman therefore dropped the word 'average' so as to make clear the continuing legislative intent that in the case where the injured workman had been continuously employed for thirty days immediately preceding his injury, only that month's wage was to be considered in determining this 'monthly wage'. In any event, regardless of the reason involved, it appears clear that insofar as concerns a continuously employed employee, the concept of 'average' was not a part of the statutory basis for the computation of such an employee's monthly...