                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                         WESTAT, Petitioner Employer,

            LIBERTY MUTUAL INSURANCE, Petitioner Carrier,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

                      ELLISE FREE, Respondent Employee.


                              No. 1 CA-IC 17-0037
                                FILED 5-1-2018


                   Special Action - Industrial Commission
                        ICA Claim No. 20162-370187
                     Carrier Claim No. WC197-A96921
                 Robert F. Retzer, Administrative Law Judge

                             AWARD SET ASIDE


                                    COUNSEL

Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix
By Lisa M. LaMont
Counsel for Petitioner Employer and Petitioner Carrier

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent
Snow, Carpio & Weekley, PLC, Phoenix
By Charles M. Wilmer, Jr.
Counsel for Respondent Employee



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.


C R U Z, Judge:

¶1            This is a special action review of an Industrial Commission
of Arizona (“ICA”) award and decision upon review setting an average
monthly wage. Petitioners argues the administrative law judge (“ALJ”)
erroneously found: respondent employee’s—the claimant—compensable
wages included per diem payments and lodging and transportation
expenses under Arizona Revised Statutes (“A.R.S.”) section 23-1041; the
claimant received an economic gain from per diem payments because they
exceeded her travel expenses; and the claimant was entitled to all lodging
expenses.

¶2            We find the average monthly wage calculation is not
supported by the evidence of record and is inconsistent with the applicable
case law. We thus set aside the award.

              FACTUAL AND PROCEDURAL HISTORY

¶3             The claimant had worked for Westat for several years when
she was approached about taking a new position as a field interviewer. She
initially declined the job because she had been earning $17-$18 per hour
and the field interviewer position only paid $14.50 per hour. The recruiter
then explained,

      the reason they kept it at that rate was because . . . [she would]
      get quite a few other benefits, including lodging at a Marriott
      Residence Inn the entire year except for the two two-week
      periods we were gone,1 and transportation, which is our


1    The position required the field interviewer to be on the road eleven
months of the year with two breaks at July 4th and Christmas.


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                          Decision of the Court

       rental car or a company car, and per diems that we did get
       paid every week.

The claimant testified it was these additional benefits that financially
allowed her to accept the position. She stated that she put all her belongings
and her vehicle in storage, which gave her the added benefit of not having
to pay for a home in Phoenix.

¶4            The claimant testified that she turned in weekly expense
sheets, which included her per diem payments and her mileage
reimbursement. Her per diem payment was between $51 and $74 per day,
depending on the area of the country in which she was working. She stated
that it was intended to cover all of her food on the road. The mileage
reimbursement helped her pay for gas, tolls, parking, and any other
expenses associated with use of the rental car, that she occasionally paid for
out of pocket. The cost of the car itself, however, was accounted for by
Westat.

¶5           The claimant testified that she injured her left shoulder while
working in Massachusetts and lifting heavy case files out of her rental car.
She filed a workers’ compensation claim, which was accepted for benefits.
The ICA then entered its Notice of Average Monthly Wage,2 and the
claimant timely protested.

¶6             An ICA ALJ heard testimony from the claimant in a hearing.
The parties filed simultaneous post-hearing legal memoranda, and the ALJ
entered an award setting the average monthly wage at the statutory
maximum.3       Westat requested administrative review, but the ALJ
summarily affirmed the award. Westat next brought this appeal. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 23-951(A), and Arizona
Rule of Procedure for Special Actions 10.



2      The ICA determines and issues the notice of average monthly wage.
See A.R.S. § 23-1061(F). Prior to issuing the notice of average monthly wage,
the ICA receives a recommended average monthly wage calculation from
the insurance carrier. The ICA then independently determines the average
monthly wage and issues the notice. See, e.g., Borquez v. Indus. Comm’n, 171
Ariz. 396, 398 (App. 1991).

3     The statutory maximum average monthly wage is set according to a
schedule contained in A.R.S. § 23-1041(E).


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                              DISCUSSION

¶7            In reviewing findings and awards of the ICA, we defer to the
ALJ’s factual findings, but review questions of law de novo. Young v. Indus.
Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We consider the evidence in
a light most favorable to upholding the ALJ’s award. Lovitch v. Indus.
Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002).

¶8           On appeal, Westat argues that the ALJ erroneously
categorized various employment benefits received by the claimant as
wages. The claimant testified that her job description and her wages and
benefits were accurately described in the Household Interview BrassRing
Screener Form, which was placed in evidence:

      The minimum starting pay rate for this position is $13.00 per
      hour. You are paid based on a 40-hour workweek. This is a
      nonexempt position and is eligible for overtime pay.

                                 * * * *
      Benefits include:
             • Paid lodging,4 per diem from $51-$74 per day, paid
      holidays, bonuses, and individual housing/car while
      working in the field.

            • Potential vacation time is dependent on the number
      of hours worked during the year.


¶9             Both parties filed the claimant’s payroll information in
evidence. This included pay stubs for two different types of checks that the
claimant received: payroll checks for wages and overtime, and expense
reimbursement checks for per diem and mileage. The payroll checks were
for $14.50 per hour times 40 hours per week, for a gross weekly wage of
$580. Deductions for Social Security and Medicare were taken from the
payroll checks. Expense reimbursement checks reflect no deductions and
are for the invoiced amount.




4      Westat had a contract with Marriott to house its employees. The
claimant testified that she was housed in Residence Inns by Marriott. After
her injury in Massachusetts, she asked at the front desk and was told that
self-pay for her room was $154 per night.


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                          Decision of the Court

¶10           Based on this information, the ALJ found:

       The applicant was paid $2,315.57 by check each month, her
       lodging averaged $4,670.97 per month [roughly $154 x 30
       days], which was clearly an economic gain to the applicant as
       she did not have to maintain a residence in Phoenix and she
       did not retain a residence in Phoenix while working for the
       defendant employer. This would take the applicant’s average
       monthly wage over the maximum of $4,428.91. Therefore, it
       is unnecessary to decide if the applicant’s car/transportation
       should be included in her average monthly wage.

       Lodging and per diem is clearly includable in her average
       monthly wage. See Matlock v. Industrial Commission . . . and
       Kerr v. Industrial Commission . . . which says per diem is
       included in the average monthly wage regardless of actual
       travel and which employee could use for any purpose.

       If we take the base rate of $2,315.57 and add the per diem of
       $1,941.18 [rough average of $51+$74 x 30] we get $4,256.75.
       Therefore, even if the applicant’s lodging costs are excessive,
       she would still be way beyond the stationary [sic] maximum
       of $4,428.91.

¶11          The claimant has the burden of proving all elements of the
average monthly wage. Zapien v. Indus. Comm’n, 12 Ariz. App. 334, 336
(1970). The emphasis in setting an average monthly wage is on what the
employee actually earned for her labor. Harvey Auto Supply Inc. v. Indus.
Comm’n, 25 Ariz. App. 274, 276 (1975).

¶12            Wages can include a salary plus other payments or benefits,
such as housing and food. Matlock v. Indus. Comm’n, 70 Ariz. 25, 28 (1950)
overruled on other grounds; accord 8 Arthur Larson and Lex K. Larson, Larson’s
Workers’ Compensation Law § 93.01[2][a], at 93-18 to -19 (2017). These extra
payments or benefits, which on their face do not purport to be “wages,” are
includable in computing the average monthly wage because they are
conferred upon an employee in return for his labor and services. Moorehead
v. Indus. Comm’n, 17 Ariz. App. 96, 99 (1972) (discussing Matlock).

¶13         In contrast, wages do not include     reimbursement for actual
employment-related expenses incurred by the       claimant. Pettis v. Indus.
Comm’n, 91 Ariz. 298, 303 (1962). “[W]ages do     [sic] not include amounts
paid to the employee to reimburse [her]            for employment-related


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                         Decision of the Court

expenditures of a nature which would not be incurred but for [her]
employment [as such] payments are simply not intended as compensation
for services rendered.” Moorehead, 17 Ariz. App. at 99.

¶14            However, simply because a payment is characterized as an
expense does not preclude it from being considered a wage, but “there
[must first] be some showing that the payments are more than sufficient to
reimburse the employee for the work-related expense so that in effect the
excess can be considered as extra compensation to the workman for [her]
services performed.” Id.; Arizona Workers’ Compensation Handbook § 7.3.2.1,
at 7-14 (Ray J. Davis, et al., eds., 1992 and Supp. 2017).

¶15            In this case, the claimant was a field interviewer and her job
required her to travel to multiple locations across the country. In each
location, the claimant necessarily incurred expenses for lodging,
transportation, and food. Westat provided her with a hotel room and a
vehicle in each location, and it paid the vendors directly. The claimant
would not have needed hotel rooms and rental cars except for her
employment, and there is no evidence in the record that these payments
were in excess of the actual work-related expenses. Cf. Carr v. Indus.
Comm’n, 197 Ariz. 164, 167-68, ¶¶ 15-16 (App. 1999) (employer
reimbursements for over-the-road truck driver’s food and lodging expenses
properly excluded from the average monthly wage calculation). The fact
that claimant chose to forgo her prior position with a higher hourly pay and
give up her Phoenix residence to realize a financial gain are irrelevant to
her monthly average wage calculation. As such, and as conceded by
counsel at argument, lodging paid on behalf of claimant was not properly
classified as wages.

¶16          Neither Matlock nor Kerr support a different result. The
employment contract in Matlock expressly defined wages to include a salary
of $125 per month plus a house, utilities, and various farm food for the
claimant, his wife and three children. Matlock, 70 Ariz. at 28. The
commission in Matlock valued the benefits of a house, utilities and food for
four persons at a mere $19.83 per month. Id. On appeal, the court
subsequently set aside the award reasoning these items had a value greatly
exceeding $19.83, and the commission’s finding to the contrary was
unsupported by the evidence. Id. Kerr involved the “going and coming
rule” and whether a per diem paid to the claimant was a travel subsidy or
some other form of compensation. Kerr v. Indus. Comm’n, 23 Ariz. App. 106,
107 (1975). The testimony in Kerr established that the weekly per diem was
not necessarily a subsidy for travel, but rather a different form of



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                         Decision of the Court

compensation which could be used by employees for any purpose and was
paid regardless of distance traveled. Id.

¶17           Regarding food, the claimant received a per diem payment
which was predetermined by the employer based on the location of the
work. “[D]etermining whether the per diem was a subsidy for travel or
merely a different form of compensation is a fact question for the
Commission to resolve[.]” Id.; Felix v. Indus. Comm’n, 193 Ariz. 152, 156,
¶ 18 (App. 1998) (an allowance must approximate an actual work-related
expense or it should be included in the average monthly wage to prevent
employers from sheltering wages in the guise of expense reimbursements).
The evidence indicated that this amount was a weekly certainty, and it was
paid without regard to what the claimant actually spent on food. The
record does not contain evidence for us to ascertain whether this per diem
amount was “more than sufficient to reimburse” the claimant for eating on
the road. For that reason, we cannot conclude that this amount constituted
a part of her wages.

¶18           The claimant was also paid a weekly mileage expense
reimbursement based on her weekly expense sheet. She testified that she
used this reimbursement to compensate herself for out-of-pocket expenses
related to driving a rental car. The ALJ did not address this particular
expense reimbursement in the award and there is no specific evidence in
the record as to the calculation of this reimbursement. On remand, with
due consideration to the burden borne by claimant, claimant has the right
to present evidence establishing she either had a contractual understanding
that such expenses were instead compensation or that the reimbursements
exceeded her expenses such that they would be more accurately
characterized as wages. See Carr, 197 Ariz. at 167-68, ¶ 16.

                             CONCLUSION

¶19          For all of the foregoing reasons, we set aside the award.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA



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