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Wozniak v. Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

September 24, 2015

SLAWOMIR P. WOZNIAK, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent BALLET ARIZONA, Respondent Employer, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Respondent Carrier.

Special Action – Industrial Commission ICA Claim No. 20131-480051 Carrier Claim No. 127-CB-ETY-0017J The Honorable Rachel C. Morgan, Administrative Law Judge

Crossman Law Office, P.C., Phoenix By Harlan J. Crossman Counsel for Petitioner

Industrial Commission of Arizona, Phoenix By Andrew F. Wade Counsel for Respondent

Klein, Doherty, Lundmark, Barberich & LaMont, P.C, Phoenix By R. Todd Lundmark Counsel for Respondents Employer and Carrier

Judge Michael J. Brown delivered the Opinion of the Court, in which Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.

OPINION

BROWN, JUDGE

¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award setting an average monthly wage. The question we address is whether the administrative law judge ("ALJ") erroneously found that employee Slawomir Wozniak's work as a ballet dancer was "seasonal" and thus improperly relied on an expanded wage base when calculating Wozniak's average monthly wage. Because we conclude the ALJ erred, we set aside the award.

BACKGROUND

¶2 In March 2013, Wozniak injured his shoulder when lifting another dancer while working for Ballet Arizona. Wozniak filed a workers' compensation claim, which was accepted for benefits by the respondent carrier, Travelers Property Casualty Company ("Travelers"). On June 20, 2013, the ICA entered its Notice of Average Monthly Wage setting Wozniak's wage at $4, 185.78.[1] Counsel for Travelers and Ballet Arizona requested a hearing on the ICA's wage determination. At the subsequent hearing, the ALJ heard testimony from Cathy Chatanawich, who handles payroll administration for Ballet Arizona, and Wozniak.

¶3 Wozniak's employment contract with Ballet Arizona for the 2012-2013 season consisted of 32 "non-consecutive weeks"[2] starting on August 13, 2012, and continuing at least through May 5, 2013. Wozniak was to be paid $770 per week during the contract term. Ballet Arizona retained an option to extend the term by up to four additional weeks for a total of 36 weeks, but could not extend the term beyond June 9, 2013. Wozniak was not permitted to obtain "any outside employment or work activity" without prior approval of Ballet Arizona, and was required to submit a certification of fitness for duty, completed by a health care provider, in the two months preceding the start of the 2012-2013 season. The contract also stated Ballet Arizona would provide a "comprehensive workers' compensation insurance program" but that such coverage would not apply to injuries resulting from outside employment.

¶4 Wozniak testified he had worked for Ballet Arizona as a dancer for five years at the time of his injury. Responding to a question from his counsel as to whether he could "go out and find a job any place" he wanted to during the summer, Wozniak stated, "No. No companies are working that. . . [, ]" at which point his counsel interrupted, stating, "Okay. Thank you." Wozniak explained, however, that beginning in September 2012, he also worked as a teacher at a local ballet school, owned by his father, at a salary of $1000 per month.

¶5 Chatanawich testified that dancers at Ballet Arizona generally work from August to May, with a typical season lasting 36 weeks. She stated that Ballet Arizona had paid Wozniak $3080 in the 30-day period leading up to his injury and his compensation for the one-year period before his injury (spanning two contracts) was $28, 494.

¶6 The ALJ entered an award setting Wozniak's average monthly wage at $3310. In reaching that figure, the ALJ adopted Travelers' analysis in its post-hearing memorandum, which advocated treating Wozniak as a seasonal employee and therefore divided Wozniak's one-year earnings from Ballet Arizona of $27, 720 by twelve, for an average monthly wage of $2310, instead of the amount actually earned by Wozniak for the thirty-day period before his injury. Travelers did not contest that Wozniak was earning $1000 per month from the ballet ...


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