Senor T's Restaurant v. Industrial Commission of Arizona, 1

• Decision Date: 18 August 1981
• Docket Number: CA-IC,No. 1,1
• Citation: 131 Ariz. 389,641 P.2d 877
• Parties: SENOR T'S RESTAURANT, Petitioner Employer, American Motorists Insurance Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Ellen Osgood, Respondent Employee. 2388.
• Court: Arizona Court of Appeals

Page 877

641 P.2d 877

131 Ariz. 389

SENOR T'S RESTAURANT, Petitioner Employer American Motorists Insurance Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Ellen Osgood, Respondent Employee.

No. 1 CA-IC 2388.

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

Aug. 18, 1981.

Rehearing Denied Oct. 7, 1981.

Review Granted Oct. 27, 1981.

Jennings, Strouss & Salmon by Steven C. Lester, Phoenix, for petitioners.

Calvin Harris, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Law Offices of Chris T. Johnson, P. C. by Dennis R. Kurth, Phoenix, for respondent employee.

OPINION

FROEB, Judge.

The issue in this Special Action-Industrial Commission is whether the administrative law judge correctly based an injured waitress's compensation claim not only on the monthly amount she was paid by her employer, but also on the tips she received from customers. We find that he was correct and affirm the award.

On September 8, 1978, the respondent employee, who worked as a cocktail waitress, sustained an industrial injury which was accepted for benefits by a notice of claim status issued October 9, 1978. On December 7, 1978, the Industrial Commission found the claimant's average monthly wage to be $452.80. A request for hearing was subsequently filed and granted. On January 22, 1980, the administrative law judge issued his findings and award which concluded that the claimant's average monthly wage was $817.05. This award was based on Scott v. Industrial Commission, 122 Ariz. 169, 593 P.2d 919 (App.1978), which held that tips are part of the average monthly wage. After a request for review, the administrative law judge affirmed his decision.

In this special action, petitioners employer and carrier raise three issues. First, they argue that fundamental legal analysis requires Scott v. Industrial Commission to be overruled. Next, they contend that application of Scott is unconstitutional because insurance regulations in Arizona allow premiums to be based only on wages paid by the employer, whereas insurance carriers must pay claims which are based on both wages and tips. Finally, they contend that Scott should not be retroactively applied to the present case since the injury occurred before Scott was decided.

The issue of whether tips are to be included in the computation of the average monthly wage arises by reason of A.R.S. § 23-1041 which states, in relevant part:

A. Every employee of an employer within the provisions of this chapter who is injured by accident arising out of and in the course of employment, or his dependents in event of his death, shall receive the compensation fixed in this chapter on the basis of such employee's average monthly wage at the time of injury.

....

D. The term "monthly wage" means the average wage paid during and over the month in which the employee is killed or injured.

This court initially interpreted "monthly wage" as not including tips. Industrial Commission v. Jordan, 9 Ariz.App. 23, 448 P.2d 895 (1968). The issue arose in that case when Jordan questioned the legality of an Industrial Commission regulation which stated that the basis of the insurance premium charged by carriers to employers was to include tips and gratuities if a regular record was kept. ¹ The court, in deciding that issue, necessarily had to determine if tips were included in monthly wages for compensation purposes. As the court stated:

(T)ips received by an employee may be included in the wage base for computing premiums only if the law permits the inclusion of tips for compensation purposes.

The validity of the tips regulation turns upon the question whether tips come within the purview of "wages" as such term is used as a basis for computing premiums and compensation awards.

9 Ariz.App. at 26, 448 P.2d 895. The court found that tips were not includable for compensation purposes and therefore held that the regulation was invalid. This conclusion was based upon the court's finding that the "assessment of premiums and payment of compensation by the Commission on the basis of wages inclusive of tips is a matter requiring legislative action." 9 Ariz.App. at 28, 448 P.2d 895.

In 1975, with one judge dissenting, the court in Springer v. Industrial Commission, 23 Ariz.App. 429, 431, 533 P.2d 1166, 1168 (1975), found "nothing in petitioners' argument which persuades us to abandon the holding in Jordan.'' Both Jordan and Springer were denied review in the supreme court.

Then, in 1978, the court of appeals in Scott v. Industrial Commission reversed its position, with one judge dissenting, and overruled Jordan and Springer. This result was reached, the court stated, because it was "not only consistent with the workmen's compensation law of most other jurisdictions" but was "consistent with the humanitarian policy of our own workmen's compensation statute to compensate for financial loss due to industrial injuries." 122 Ariz. at 172, 593 P.2d 919. The supreme court initially granted review of Scott, but later vacated that order after finding review had been improvidently granted.

Petitioners now urge us to overrule Scott and return to Jordan, thereby disallowing tips as a component of wages. We decline to do so, not because we agree that tips ought to be included in computing a worker's average monthly wage, but because the principle of stare decisis should now be followed on this question. We agree with the court in Jordan that the issue is legislative in nature and that it should be addressed in the legislative process. Nevertheless, Scott held to the contrary and we follow it out of a sense of judicial restraint and appropriate deference to a matter already decided.

The petitioners next argue that application of Scott is unconstitutional because carriers are deprived of property without due process of law. The contention is based on the fact that insurance regulations do not permit carriers to assess premiums based on an employee's tips. Therefore, petitioners argue, carriers are able to charge premiums based on only the employee's actual wages but are required to pay claims based on tips in addition to wages. Although we recognize the carriers' dilemma, the solution to that problem must be found elsewhere than in the review of this workmen's compensation award.

When the Department of Insurance adopted the national Manual of Rules, Classifications, and Rates for Workmen's Compensation and Employer's Liability Insurance, it specifically amended rule VI, section 3 (allowing for tips within the premium calculation process) so that, in Arizona, tips are not included. The petitioners note that this change was made so that the regulation of the Department of Insurance was consistent with Arizona law as declared in Industrial Commission v. Jordan. As previously indicated, the Scott decision changed the law in Arizona but no conforming change in regulation has been made by the Department of Insurance. It is a matter for administrative action by the Department of Insurance to provide for any further change in its regulation.

The petitioners' final argument is that Scott should not be retroactively applied to injuries occurring before the December 1, 1978, date of that decision. Scott, however, specifically states that its ruling is retroactive except as "to claims closed prior to this day (December 1)." In adhering to Scott, we follow its ruling as to retroactive application.

For the foregoing reasons, the award is affirmed.

O'CONNOR, J., concurs.

WREN, Chief Judge, specially concurring:

I concur with the conclusion reached here simply because Scott appears to be the better course for us to follow at this particular stage of our multifarious judicial inquiry into this troublesome area. However, I question whether the doctrine of stare decisis is the appropriate route to take us to that conclusion. As stated in my dissent in Scott and noted by the other judges in this opinion, the problem in Scott called for legislative, not judicial, action.

Since the correct procedure was not used, we now have a strange anomaly. Scott was decided by a different department of this court than that which determined Jordan, and yet the Scott court specifically stated that it was overruling Jordan. The court which now attempts to resolve the issue is comprised of yet a third department of judges from the court of appeals. We have thus, in my opinion, placed the law of "tips" in workmen's compensation cases in "suspended animation."

Considerable research has revealed no authority that one department or division of an intermediate appellate court may overrule a decision of another department or division. The subsequent court may follow the prior decision, or refuse to follow it, but I submit there is no power to overrule it, since they are coordinate courts. See the discussion in 21 C.J.S., Courts § 196 et seq. Thus, both Scott and Jordan remain, at this time, viable, albeit conflicting decisions. To which, then, should the doctrine of stare decisis apply-to Jordan, which formulated the point of law in the first instance, and which has been recognized in this opinion as the preferred authority; or Scott, which improperly overruled it? In my opinion, stare decisis cannot be invoked to sanction as authority a subsequent decision of a coordinate court simply because it purports to have overruled the prior decision.

Recognition of the principle that the various departments of this court are "coordinate courts" was made in Castillo v. Industrial Commission, 21 Ariz.App. 465, 520 P.2d 1142 (1974) when Judge Haire, writing for Department B, referred to Terrell v. Industrial Commission, 21 Ariz.App. 139, 517 P.2d 97 (1973) (Department A), as a prior conflicting decision of a coordinate court which "we (Department B) decline to follow." ¹ I certainly agree that we should give what this opinion seeks-judicial "deference to a matter already decided,"-and for that reason I...