Award set aside.
Udall & Udall, Tucson, for petitioner.
H. S. McCluskey, Phoenix, Robert E. Yount and Robert W. Pickrell, Phoenix, of counsel, for respondent Industrial Commission.
La Prade, Justice. Udall, C. J., and Stanford, Phelps and De Concini, JJ., concurring.
La Prade, Justice.
[73 Ariz. 134] This appeal is before us on certiorari from an award of the Industrial Commission finding that the average monthly wage of the petitioner at the time he was injured (for the purpose of computing compensation payable to him) was $ 160.16 per month.
Petitioner, at the time of his injury, was employed by the respondent power company at the hourly rate of $ 2.00 an hour 8 hours a day 22 days a month with extra pay [73 Ariz. 135] for overtime. At the time of his injury, petitioner had been employed 51 days. His first labors were devoted to maintenance construction. Some time later he was transferred to new construction to aid in the erection of a special line then being constructed by the company. During all the time of his employment he had worked some overtime due to weather conditions (storms) that had interfered with the company's service. His paychecks (after deductions) were as follows: August 21 to August 30, $ 161.07; September 1 to September 15, $ 168.81; September 16 to September 30, $ 189.29; October 1 to October 10, $ 126.95. His total wages earned during the 30 days immediately preceding the injury were $ 389.03.
The sole question presented here is what was the average monthly wage of the petitioner at the time of injury? It is the contention of the petitioner that having been employed more than 30 days, his average monthly wage should be computed on the basis of the wages actually earned by him during the 30 days immediately preceding the injury, to wit, $ 389.03. The measure of compensation to be paid in cases similar to this is found in sections 56-956 and 56-952, A.C.A.1939. The applicable portions of these sections are quoted:
"56-956 (a). For temporary total disability: 1. if there be no one residing in the United States totally dependent upon the employee at the time of the injury, compensation of sixty-five (65) per cent of the average monthly wage shall be paid during the period of such disability, not to exceed one hundred (100) months; 2. if there be persons residing in the United States totally dependent for support upon the employee, compensation shall be paid as provided
herein with an additional allowance of ten dollars ($ 10.00) per month for such dependents during the period of such disability."
"56-952. 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 ...