San Pedro Feed & Supplies v. Industrial Commission of Arizona12/22/2003
MEMORANDUM DECISION
Not for Publication Rule 28, Rules of Civil Appellate Procedure
In this statutory special action, petitioner/employer San Pedro Feed & Supplies and petitioner/insurer, the State Compensation Fund, challenge the administrative law judge's (ALJ) award of disability benefits to respondent/employee Raymond Fox. The Fund argues the ALJ erroneously determined Fox's average monthly wage (AMW) on which the award was based. We agree and, therefore, set aside the award.
BACKGROUND
We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the award. Pena v. Indus. Comm'n, 140 Ariz. 510, 513, 683 P.2d 309, 312 (App. 1984). While working at San Pedro on August 5, 2002, Fox fell off a truck he was loading with hay, injuring his left knee. The Fund accepted Fox's workers' compensation claim. It is undisputed that San Pedro had hired Fox on July 18, 2002, to work an average of twenty hours per week at a wage of $6.00 per hour. Based on that information, the Fund determined that Fox's AMW was $519.96. A physician determined that the fall had rendered Fox's left knee five percent permanently impaired. Based on Fox's AMW and percentage of impairment, the Fund awarded Fox $259.98 in monthly disability benefits.
Fox protested that amount, essentially claiming he was entitled to an award based on his having worked more than twenty hours per week. At a hearing, both Fox and Laurie Taylor, San Pedro's owner, testified. The sole issue at the hearing was Fox's AMW.
The ALJ noted Taylor's testimony that she had hired Fox to work an average of twenty hours per week but found that, from July 18 to August 4, Fox actually had worked 78.5 hours. Using an "extrapolation" method, the ALJ then calculated Fox's AMW as follows:
From July 18, 2002 through August 4, 2002 worked a total of 78.5 hours over a period of 17 days. That divides to an average of 4.6 hours per day or 32.2 hours per week. Multiplying 32.2 by $6.00 per hour yields $193.20 per week, and multiplying that by 4.333 (weeks in a month) results in [Fox's] average monthly wage in this matter: $837.10.
Based on the new calculation of Fox's AMW, his monthly disability award was set at $418.55 per month. The ALJ affirmed the award on administrative review, and this statutory special action followed.
DISCUSSION
We first note that Fox has not filed an answering brief. We have discretion to construe the failure to file an answering brief as a confession of reversible error. Swift Transp. v. Indus. Comm'n, 189 Ariz. 10, 11, 938 P.2d 59, 60 (App. 1996); see Paulley v. Indus. Comm'n, 91 Ariz. 266, 273, 371 P.2d 888, 893 (1962). And, we note that Fox, who appeared pro se at the hearing on his AMW, is entitled to no more consideration than if he had been represented by counsel and is held to the same familiarity with required procedure as a member of the bar. See Old Pueblo Plastic Surgery, P.C. v. Fields, 146 Ariz. 178, 179, 704 P.2d 819, 820 (App. 1985). Even if we do not consider Fox's failure to file an answering brief a confession of error, however, we nonetheless conclude that the award must be set aside.
Under A.R.S. ยง 23-1041(A), " very employee of an employer within the provisions of this chapter who is injured by accident arising out of and in the course of employment... shall receive the compensation fixed in this chapter on the basis of such employee's average monthly wage at the time of the injury." When, as here, the injured employee has not been continuously employed during the thirty days immediately preceding the injury, the average monthly wage shall
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