APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award set aside.
Messrs. Fennemore, Craig, Allen & Bledsoe, for Petitioner.
Mr. H. S. McCluskey and Mr. Fred O. Wilson, for Respondent Industrial Commission.
Mr. Orme Lewis, for Respondents Gutierrez.
[61 Ariz. 383] ROSS, J.
Kennecott Copper Corporation has brought this matter here by writ of certiorari to have reviewed an award made by the Industrial Commission to the dependents of Manuel H. Gutierrez, who lost his life June 7, 1942 while in the employ of the petitioner at its mines where he had worked from March 8, 1942 to the time of injury.
The petitioner states the facts, concerning which there seems to be no dispute, as follows:
"At the time of said employee's death and during the entire course of his employment, it was customary for petitioner to carry on its operations on the basis of a six-day, forty-eight-hour week, and employees were paid at the rate of time and one-half for hours worked in any one week in excess of forty. The usual employment then was for an employee to work five days per week at standard pay and one day per week at overtime pay.
"During the thirty-day period immediately preceding the accident and resulting death of the employee herein referred to, said employee worked more than the usual six-day week in that he substituted for a fellow employee who was absent because of illness. By virtue of such extra work over and above the usual six-day week, said employee was paid additional compensation based on the rate of time and one-half for all such extra work. Respondent (Industrial Commission) in determining the award due employee's surviving widow and dependents based its award upon the total earnings of the employee, including the earnings resulting from said extra work, during the thirty-day period immediately preceding his death."
Whether the Industrial Commission's award finds support in the facts and the law is the question for decision. In other words, is the award in accordance with the statute in adding to the decedent's normal and over-time "the additional pay" he received for substituting for his fellow employee, absent because [61 Ariz. 384] of illness, and in awarding compensation on the sum total thus obtained?
The material portion of the statute applicable, sec. 56-952, Arizona Code Annotated 1939, where the employee, as here, is injured or killed after he has been employed thirty days or more, reads as follows:
"Measure of compensation -- Average monthly wage -- computation. -- Every employee of any employer subject to 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 average monthly wage at the time of injury. The term 'monthly wage' shall mean the average wage paid during and over the month in which such employee is killed or injured. If the injured or killed employee has not been continuously employed for the period of thirty (30) 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 ...