Wiley v. Industrial Com'n of Arizona

• Decision Date: 18 March 1993
• Docket Number: No. CV-91-0249-PR,CV-91-0249-PR
• Citation: 847 P.2d 595,174 Ariz. 94
• Parties: Jimmy Wayne WILEY, Petitioner/Respondent Employee, Sam Trujillo and Mary Jane Trujillo, Petitioner/Respondent Employers, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Casper Baca Rodeo Company, Respondent Employer, No Insurance Section/Special Fund, Respondent Party in Interest.
• Court: Arizona Supreme Court

Page 595

847 P.2d 595

174 Ariz. 94

Jimmy Wayne WILEY, Petitioner/Respondent Employee Sam Trujillo and Mary Jane Trujillo, Petitioner/Respondent Employers, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Casper Baca Rodeo Company, Respondent Employer No Insurance Section/Special Fund, Respondent Party in Interest.

No. CV-91-0249-PR.

Supreme Court of Arizona, In Banc.

March 18, 1993.

Dee-Dee Samet, P.C. by Dee-Dee Samet, Tucson, for petitioner/respondent employee.

Kimble, Gothreau & Nelson, P.C. by Frank W. Frey, Tucson, for petitioner/respondent employers.

Anita R. Valainis, Chief Counsel, Indus. Com'n of Arizona, Phoenix, for respondent.

Miller, Pitt & McAnally, P.C. by Armando Rivera, Tucson, for respondent employer.

Kent M. Struckmeyer, Asst. Chief Counsel, Indus. Com'n of Arizona, Phoenix, for respondent/real party in interest.

Tretschok, McNamara & Clymer, P.C. by Brian I. Clymer, Tucson, for amicus curiae.

AMENDED OPINION

Memorandum Decision of the Court of Appeals, Division Two, filed April 25, 1991, vacated in part

FELDMAN, Chief Justice.

We granted review in these consolidated workers' compensation cases to re-examine

[174 Ariz. 96] the question of whether, for purposes of determining disability benefits, a worker's average monthly wage includes wages from concurrent dissimilar employment. See Ariz.R.Civ.App.P. 23(c)(4). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. § 12-120.24, and Ariz.R.Civ.App.P. 23.

FACTS AND PROCEDURAL HISTORY

The Casper Baca Rodeo Company ("Baca") entered into a contract with the Greenlee County Fair and Rodeo Association ("Association") to stage the Association's annual rodeo at Duncan, Arizona in September 1988. Under the contract, Baca agreed to provide all rodeo stock and chute help. Baca, who only had bucking stock, entered into a subcontract to have Sam Trujillo provide all timed-event stock for the rodeo. ¹ Trujillo, in turn, hired Jimmy Wiley as a rodeo assistant. While working at the rodeo, Wiley suffered a significant injury to his right leg resulting in a temporary total and a permanent partial disability.

Following his injury, Wiley filed workers' compensation claims against both Baca and Trujillo. Neither Baca nor Trujillo had procured workers' compensation insurance and the No Insurance Section/Special Fund of the Industrial Commission of Arizona ("Commission") processed the claims. See A.R.S. §§ 23-907, 23-1065. The administrative law judge ("ALJ") found that Baca was not Wiley's statutory employer because Baca had delegated to Trujillo his right to control Wiley's employment. The ALJ found that Trujillo was responsible for Wiley's medical, surgical, and hospital benefits as well as disability benefits.

Trujillo paid Wiley a total of $80 for two days of work as a rodeo assistant. Prior to the injury, Wiley earned $2,175 per month as a full-time electrician. In addition, he worked as a football referee, officiating three games and receiving $22.80 per game, including travel reimbursement. In determining Wiley's pre-injury average monthly wage, however, the ALJ refused to include Wiley's income as an electrician or referee because that work was dissimilar to his work as a rodeo assistant. The ALJ found that Wiley had received a total of $80 in wages as a rodeo assistant in the year prior to his injury. Thus, the average monthly wage used to calculate Wiley's disability benefits was $6.67. Accordingly, Wiley's award for temporary total disability was sixty-six and two-thirds percent of $6.67 or $4.45 per month.

Wiley and Trujillo challenged the Commission's awards in special actions before the court of appeals. That court consolidated the special actions, set aside the finding that Baca was not Wiley's statutory employer, and affirmed the average monthly wage determination. Wiley v. Trujillo, Nos. 2 CA-IC 90-0054, -0055, -0057 (Ariz.Ct.App. Apr. 25, 1991) (mem. dec.). Wiley petitioned this court to review the court of appeals' decision affirming the average monthly wage determination. ² We granted review to examine the following issues:

1. Are our previous decisions unfair and discriminatory by refusing to combine wages from concurrent "dissimilar" employment in setting an injured employee's average monthly wage while allowing the combination of wages from concurrent "similar" employment?

2. Should the cases refusing to combine wages from concurrent "dissimilar" employment be overruled?

Essentially, the issue before us is whether Wiley's total wages from his various jobs should be aggregated in computing his average monthly wage (and thus in determining his lost earning capacity and resulting compensation) or whether, because his jobs were dissimilar, only the income from the single job in which he was working at the time he was injured should be considered.

DISCUSSION

A. The Concurrent Dissimilar Employment Rule

Under the Arizona Workers' Compensation Act ("Act"), A.R.S. §§ 23-901 to 23- Under the Act, benefits are based on a claimant's "average monthly wage at the time of injury." A.R.S. § 23-1041(A). The average monthly wage determination directly affects the amount of benefits a claimant receives. See generally A.R.S. §§ 23-1044; 23-1045. "Monthly wage" is defined as "the average wage paid during and over the month in which the employee is killed or injured." A.R.S. § 23-1041(D); see also A.R.S. § 23-1041(B) (monthly wage for short-term employment); A.R.S. § 23-1042 (monthly wage for permanently incapacitated minors). The statutory definition of monthly wage has remained constant--virtually to the letter--from the time it first appeared in the Act. See, e.g., A.R.S. § 23-1041(D); Ariz.Rev.Stat.Ann. § 56-952 (1939); A.R.S. § 1438 (1928); 1939 Ariz.Sess.Laws ch. 28, § 6; 1933 Ariz.Sess.Laws, 1st S.S. ch. 11, § 6; 1925 Ariz. Sess.Laws ch. 83, § 70. However, in determining the average monthly wage of claimants who hold more than one job, judicial construction of this statutory phrase has fluctuated.

[174 Ariz. 97] 1091, a claimant's average monthly wage is defined by statute. See A.R.S. § 23-1041. The ALJ and the court of appeals relied on our construction of this statutory provision in Wesolowski v. Industrial Comm'n, 99 Ariz. 4, 405 P.2d 887 (1965), and Sanchez v. Industrial Comm'n, 96 Ariz. 19, 391 P.2d 579 (1964), to determine Wiley's average monthly wage. Thus, we begin our analysis with the applicable statutory language and its judicial construction.

1. Prior Judicial Construction

Our construction of the applicable statutory language has been both confusing and contradictory. We first addressed the issue of concurrent employment in Butler v. Industrial Comm'n, 50 Ariz. 516, 73 P.2d 703 (1937). In Butler, the claimant was injured while working for two employers and while travelling from one employer to the other. Id. at 517-19, 73 P.2d at 703-05. The claimant worked as a groundskeeper-night watchman and a parking attendant, and both employers were primarily controlled and owned by the same individual. Id. at 517-18, 73 P.2d at 703-04. In light of those unique facts, we held that the average monthly wage determination should be based on the claimant's combined wages from both employers--a holding constituting "the reasonable, logical, and just construction of the nature of [claimant's] employment." Id. at 525, 73 P.2d at 706.

In Wells v. Industrial Comm'n, 63 Ariz. 264, 161 P.2d 113 (1945), we first squarely addressed the issue presented in this case. The claimant in Wells worked for two unrelated employers as a salesperson and a painter, and the Commission used claimant's wages from both employers to determine his average monthly wage. Id. at 265, 161 P.2d at 114-13. We construed Butler as holding "that where a workman is employed by two or more employers, and is injured while in the employ of one, he is entitled to have his wages calculated on the total wages received." Wells, 63 Ariz. at 267, 161 P.2d at 114. We stated that the applicable statutory language and the purposes of the Act indicated that all wages should be combined, id. at 269-70, 161 P.2d at 115-16, and noted that other courts construing similar statutory provisions "held that the proper wage is the total received from all employers." Id. at 271, 161 P.2d at 116 (citing cases). Thus, we held that wages from both employers should be combined because that result reasonably represented claimant's monthly earning capacity from all employment at the time of injury. Id. at 269, 161 P.2d at 115. "Any other construction of the statute would result in great injustice and lead to absurdities." Id. at 271, 161 P.2d at 116.

Wells, however, was short-lived. In Faulkner v. Industrial Comm'n, 71 Ariz. 76, 223 P.2d 905 (1950), the court limited Wells and Butler. In Faulkner, the claimant worked primarily for the United States Veterans Administration but had been injured while working at a race track. Faulkner, 71 Ariz. at 77, 223 P.2d at 905. After finding that the Veterans Administration was not covered by the Act, the court affirmed the Commission's decision basing benefits solely on claimant's race track wages. Id. at 78-79, 223 P.2d at The death knell came for Wells and Butler in a pair of cases decided in the mid-1960s. In Sanchez v. Industrial Comm'n, 96 Ariz. 19, 391 P.2d 579 (1964), the claimant, who also worked part-time as a musician, was injured while working as a miner. Id. at 20, 391 P.2d at 580. The specific issue decided in Sanchez was whether the computation of claimant's post-injury loss of earning capacity should have considered his pre-injury earnings as a musician. Id. at 23, 391 P.2d at 582. After discussing Faulkner, the court, in a conclusory manner, stated:

                [174 Ariz. 98] 905-06.   The court reasoned that any other ruling would prevent the Commission from receiving premiums to the full extent of insurance coverage and would jeopardize the solvency of the compensation fund.  Id. at 78, 223 P.2d at 906.   Thus, Faulkner limited

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