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Lowry v. Industrial Commission of Arizona12/3/1999
Marjorie S. Becklund, Administrative Law Judge
AWARD SET ASIDE AND MATTER REMANDED
Memorandum Decision of the Court of Appeals, Division One filed September 22, 1998
VACATED
I.
We are asked to decide whether, for purposes of determining workers' compensation disability benefits, an employee's average monthly wage includes earnings from concurrent employment held within the thirty days prior to, but not on the date of, an on-the-job injury.
During 1992, petitioner Carl Lowry worked for the City of Coolidge as a building inspector and also as a volunteer firefighter. His pay as a firefighter consisted of approximately one-tenth his wages as a building inspector. The City terminated the building inspector position, and Lowry's employment in that job, on August 19, 1992. Four days later, Lowry suffered an injury while working as a firefighter. Although the parties agreed that Lowry was eligible to recover workers' compensation benefits, they disagreed as to how to calculate his wage base. The administrative law Judge, rejecting Lowry's argument that wages from both jobs should be included in the calculation, established his average monthly wage using only the wages for the firefighter position that he held on the date of injury. The court of appeals affirmed, and we granted review. We exercise jurisdiction pursuant to Arizona Constitution, article VI, section 5(3), Arizona Revised Statutes Annotated (A.R.S.) § 12-120.24, and Arizona Rule of Civil Appellate Procedure 23.
II.
The Arizona Workers' Compensation Act, A.R.S. §§ 23-901 to 23-1091 (West 1995 & West Supp. 1998) (the Act), defines an injured worker's monthly wage for the purpose of determining disability benefits. See id. § 23-1041. Subsection A of section 23-1041 provides in relevant part that employees "shall receive the compensation fixed in this chapter on the basis of such employee's average monthly wage at the time of injury." Id. (emphasis added). The court of appeals relied upon that emphasized language to conclude that only wages from employment held "on the date of injury" should be used to determine an average monthly salary. Lowry v. Industrial Comm'n, No. 1 CA-IC 96-0143 (App. Sept. 22, 1998) (emphasis added). Lowry, in contrast, relies upon subsection D of the statute, which defines "monthly wage" as "the average wage paid during and over the month in which the employee is killed or injured," to argue that all wages received during the month of injury should be included to determine his average wage. A.R.S. § 23-1041.D (emphasis added). He asserts that interpretation is consistent with the spirit and purpose behind the workers' compensation provisions and will supply an appropriate basis to fairly set his disability payments.
A.
The issue raised essentially requires that we determine whether the legislature intended that the worker's average monthly wage be calculated by considering only his or her wages for the job held on the date of injury, or wages from all jobs held within the month preceding the injury. We begin our analysis with the express language of the Act.
The statutory definition of monthly wage, with its reference to a worker's average wage during the month of injury, has remained unchanged from its first appearance, compare A.R.S. § 23-1041.D (1995) with A.R.S. § 1438 (1928), and supports Lowry's argument that the administrative law Judge should have considered wages paid to him during the month preceding his injury. In Wiley v. Industrial Commission, 174 Ariz. 94, 98, 847 P.2d 595, 599 (1993), we considered this language and concluded that the legislature's ref
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