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Berryhill v. Industrial Commission of Arizona

Court of Appeals of Arizona, First Division, Department C

August 29, 2013

DANIEL D. BERRYHILL, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, WAL-MART STORES, INC., Respondent Employer, WAL-MART ASSOCIATES INC. c/o CLAIMS MGT INC., Respondent Carrier.

Special Action – Industrial Commission ICA Claim No. 20093-020256 Carrier Claim No. 5937713 The Honorable Paula R. Eaton, Administrative Law Judge

AWARD SET ASIDE

Law Office of Eric C. Awerkamp Mesa By Eric C. Awerkamp Attorneys for Petitioner Employee

The Industrial Commission of Arizona Phoenix By Andrew Wade, Chief Counsel Attorney for Respondent

Hoffman Kelley LLP Scottsdale By Linda C. Day Attorneys for Respondents Employer and Carrier

OPINION

JOHNSEN, Chief Judge

¶1 We address in this statutory special action the average monthly wage of a workers' compensation claimant who was injured at one job just after he was hired into another position he took to supplement his income from the first. Because we conclude the Administrative Law Judge ("ALJ") erred by failing to consider what the claimant earned at the second job following the injury, we set aside the award.

FACTS AND PROCEDURAL HISTORY

¶2 Daniel D. Berryhill worked as a tire and lube technician at Wal-Mart Stores, Inc., earning $9.60 an hour. Seeking to supplement his income from Wal-Mart, Berryhill interviewed with Siteworks Landscape Development on October 16, 2009, and that day accepted an offer from Siteworks to work 16 hours a week at $15.63 per hour. That same day, October 16, Siteworks sent Berryhill for a drug screen and directed him to report to work. When he appeared for work (still on October 16), he received work keys and a tour of work locations and was trained about his work responsibilities. After Berryhill was trained, Siteworks told him to return to work on October 20.

¶3 On October 19, Berryhill injured himself while working at Wal-Mart. He nevertheless appeared for work at Siteworks the following day and continued to work there part-time for at least several weeks thereafter. Siteworks, however, did not pay Berryhill for work performed on October 16. According to the parties' stipulation:

Nonpayment by Siteworks for [October 16] was not by agreement, it was simply what happened. Mr. Berryhill did not want to create contention with the new employer and did not press the issue regarding nonpayment of wages for October 16, 2009.

¶4 Berryhill filed a workers' compensation claim arising from the injury he suffered at Wal-Mart. The claim was accepted and then eventually closed, and the Industrial Commission of Arizona ("ICA") issued a notice of average monthly wage in the amount of $1, 759, based solely on Berryhill's earnings at Wal-Mart. Berryhill requested a hearing, arguing that in setting his average monthly wage, the ICA should have considered his Siteworks wages along with his Wal-Mart wages. Ruling based on stipulated facts, the ALJ agreed with the ICA that Berryhill's average monthly wage should be calculated based solely on his earnings at Wal-Mart. The ALJ reasoned that Berryhill's earnings from Siteworks were not relevant because that "employment did not begin" before the injury, nor did he receive any wages from Siteworks until after he was injured.

¶5 Berryhill requested administrative review, and the ALJ affirmed the award. We have jurisdiction of Berryhill's statutory special action pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(2) (West 2013), 23-951(A) (West 2013) and ...


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