                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           GARY STOREY, Petitioner,

                                         v.

      THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

        MESA UNIFIED SCHOOL DISTRICT, Respondent Employer,

            YORK RISK SERVICES GROUP, Respondent Carrier.

                              No. 1 CA-IC 16-0028
                                FILED 2-23-2017


                   Special Action - Industrial Commission

                        ICA Claim No. 20141-120263
                         Carrier Claim No. 4727392
                 Janet Weinstein, Administrative Law Judge

                             AWARD AFFIRMED


                                    COUNSEL

Day Law Office, Mesa
By Linda C. Day, John F. Day, II
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent
Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By K. Casey Kurth
Counsel for Respondents Employer and Carrier



                     MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.


T H O M P S O N, 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. Four issues are presented on appeal:

      (1) whether the administrative law judge (ALJ) erred by
          failing to apply the presumptive thirty-day wage base
          when calculating the petitioner employee’s (claimant’s)
          average monthly wage;

      (2) whether the ALJ legally erred by using the wages “paid”
          to claimant instead of the wages “earned” by claimant to
          calculate the average monthly wage;

      (3) whether the ALJ erroneously used an expanded wage base
          to calculate the claimant’s average monthly wage; and

      (4) whether the ALJ erred by failing to include overtime in the
          average monthly wage calculation.

Because we find that the average monthly wage calculation is reasonably
supported by the evidence and in accordance with the applicable law, we affirm
the award.

            JURISDICTION AND STANDARD OF REVIEW

¶2           This court has jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) §§ 12-120.21(A)(2) (2016), 23-951(A) (2012), and Arizona




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                         STOREY v. MESA/YORK
                           Decision of the Court

Rule of Procedure for Special Actions 10.1 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,
63 P.3d 298, 301 (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, 41 P.3d 640, 643 (App. 2002) (citation omitted).

               FACTUAL AND PROCEDURAL HISTORY

¶3            In October 2011, the claimant retired from the City of Mesa
and began receiving benefits from the Arizona State Retirement System
(ASRS). In January 2014, he completed and signed an online application to
become a school bus driver for the respondent employer, Mesa Unified
School District (Mesa). The application provided:

        Please note: Retirees who are receiving a monthly benefit
       from the Arizona State Retirement System will be paid a
       reduced salary or hourly rate according to district policy.
       Rehired retirees are not eligible for health insurance benefits
       with Mesa Public Schools, regardless of full time status.

Mesa hired the claimant, and he began training on January 27, 2014 to be
employed as a bus driver. During his training period, he was paid $10.65
per hour, 20 hours per week. However, on April 10, 2014, the claimant
failed to qualify for the bus driver position and he was given the
opportunity to become a Families in Transition (FIT) van driver.

¶4            On April 11, 2014, the claimant completed the paperwork to
become a FIT driver. As a FIT driver, the claimant was to be paid $9.63 per
hour, with a guaranteed 20 hours per week. Upon performing his physical
test to become a driver, the claimant injured his right shoulder. He filed a
workers’ compensation claim, which was eventually found compensable.2




1      Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.

2      The respondent carrier, York Risk Services Group (York) denied the
claim for benefits, and the claimant protested. The claim was litigated at
the ICA, and an ALJ found it compensable.




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                        STOREY v. MESA/YORK
                          Decision of the Court

The ICA then entered its Notice of Average Monthly Wage on September
15, 2015, 3 and the claimant timely protested.

¶5             The ICA held one hearing for testimony from the claimant
and Mesa’s Director of Classified Personnel, Christine Chapman. The
parties filed post-hearing legal memoranda, and the ALJ entered an award
setting the average monthly wage:

      In this case, applicant did not qualify for the bus driver
      position upon completion of the bus driver training. He
      applied for, was offered and accepted the FIT van driver
      position on April 11, 2014 and as of the date of injury,
      intended to continue his employment with the defendant
      employer in that position for a guaranteed 20 hours per week
      at the rate of $9.63 per hour. I find that applicant’s AMW is
      calculated as follows: $9.63 (the hourly rate he accepted
      effective April 11, 2014 as a FIT van driver) X 20 hours per
      week (as the minimum hours agreed by the defendant
      employer) X 4.333 = $834.54 as applicant’s AMW for his April
      11, 2014 industrial injury.

The claimant requested administrative review, but the ALJ summarily
affirmed the award. The claimant next brought this appeal.

                              DISCUSSION

¶6            When setting the average monthly wage, the goal is to
establish a realistic pre-injury wage base for comparison with the injured
claimant’s post-injury earning capacity. Floyd Hartshorn Plastering Co. v.
Indus. Comm’n, 16 Ariz. App. 498, 504, 494 P.2d 398, 404 (1972). This is
accomplished by arriving at “as fair an estimate as possible of claimant’s
future earning capacity.” 8 Arthur Larson & Lex K. Larson, Larson’s
Workers’ Compensation Law § 93, at 93-1 (2016).




3      The ICA determines and issues the notice of average monthly wage.
See A.R.S. § 23-1061(F) (2016). Before 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, 831 P.2d 395, 397 (App. 1991); see A.R.S. § 23-
1041 (2016).


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                         STOREY v. MESA/YORK
                           Decision of the Court

¶7            Wages earned during the thirty days preceding an industrial
injury are the presumptive average monthly wage, but the ICA “may look
beyond the amount actually paid to the claimant in a given month if that
amount does not accurately reflect the claimant’s earning capacity,” i.e.,
unrepresentative wages during the month before the injury. See A.R.S. §
23-1041(G) (2016); Carr v. Indus. Comm’n. 197 Ariz. 164, 167, ¶ 14, 3 P.3d
1084, 1087 (App. 1999).

¶8             When the presumptive base does not realistically reflect the
claimant’s earnings, the ALJ has broad discretion to use an expanded wage
base. See A.R.S. § 23-1041(G); Davis v. Indus. Comm’n, 134 Ariz. 293, 296, 655
P.2d 1345, 1348 (App. 1982). Justifications for using an expanded wage base
to determine the average monthly wage have included: … inflated wages
during the month before the injury. Elco Veterinary Supply v. Indus. Comm’n,
137 Ariz. 46, 48, 668 P.2d 889, 891 (App. 1983) (emphasis added).

¶9             The claimant first argues that the ALJ erred by failing to apply
the presumptive wage base because no evidence in the record supports a
finding that it did not provide an accurate measure of his earning capacity.
We disagree. In this case, during the thirty days before his injury, the
claimant earned wages as a school bus driver trainee. Because he did not
pass the driving test to become a bus driver, he accepted a lower-paying
position as a van driver. For those reasons, the position of van driver more
accurately reflected the claimant’s “future earning capacity.” We find no
error in the ALJ’s rejection of the presumptive thirty-day pre-injury wage
base.

¶10           The claimant next argues that the ALJ erred by relying on the
wages paid to the claimant rather than the wages he earned. The basis for
this argument is that as an ASRS benefit recipient, the claimant was subject
to a 17% reduction in wages per district policy. Ms. Chapman explained
that the reduction was required so that the claimant did not earn more than
other similarly-situated employees who were not ASRS retirees.

         Q. [By Mr. Kurth] So then let me ask you about people who
       are receiving Arizona State Retirement benefits. People who
       apply to the district or who are working for the district that
       are receiving Arizona State Retirement benefits, do they
       receive the same hourly rate as people working for the district
       who are not Arizona State Retirement recipients?

       A. [Ms. Chapman] They do not.



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                         STOREY v. MESA/YORK
                           Decision of the Court

       Q. Why not?

       A. We’ve had that practice for many, many years, and it’s our
       attempt to somewhat equalize when you take - - Arizona State
       Retirement System requires you to pay contributions when
       you work at least 20 hours a week, and so when we take two
       20-hour a week employees, one being a non-retiree that has to
       pay in contributions out of every check and the other being
       an active retiree through the system, they do not have to pay
       any contributions any further, so that is our attempt to
       somewhat equalize the net pay.

Based on Ms. Chapman’s testimony, we find that the claimant earned and
was paid wages similar to other employees within his job classification.

¶11           The claimant next argues that the ALJ applied an erroneous
expanded wage base by utilizing future earnings rather than previous
earnings. We disagree and find guidance in Swift Transp. v. Indus. Comm’n,
189 Ariz. 10, 10 938 P.2d 59, 59 (App. 1996). In Swift, this court considered
the average monthly wage of a truck driver. Id. After he was hired, the
driver was placed in a probationary training period and was paid $250.00
per week. Id. On March 2, 1992, he became a regular driver and was then
paid twenty cents per mile. Id. From March 2 through March 9, 1992, he
earned $645.96. Id.

¶12            On March 9, the driver sustained an industrial injury. Id. In
setting his average monthly wage, the ALJ utilized the driver’s regular
wages instead of his probationary wages earned during the thirty days
before injury. Id. at 11, 938 P.2d at 60. The employer appealed, but this
court affirmed the ALJ’s award. Id. at 12, 938 P.2d at 61. We held “the ALJ
properly determined that the claimant’s average monthly wage should
reflect what he was actually earning at the time of injury and that his
training wage was properly excluded because it presents a distorted basis
upon which to make a determination of future earning capacity.” In this
case, the claimant was earning wages as a FIT driver at the time of his
industrial injury. Id. at 12-13, 938 P.2d at 61-62. We hold that these earnings
more accurately reflected his future earning capacity.

¶13          The claimant lastly argues that the ALJ erred by failing to
include overtime hours in his wage base. In that regard, the ALJ found:

       5. … During his employment with the District applicant was
       paid every two weeks and for each pay period received a pay


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                       STOREY v. MESA/YORK
                         Decision of the Court

      stub for the direct deposit payment that reflected his hourly
      rate and the hours he worked. Applicant did not contest the
      correctness of the information set forth on his pay stubs.
      Applicant’s payroll stubs show that while he was a bus driver
      in training, applicant did not, on average, work in excess of
      20 hours per week on a regular basis.

The pay stubs were placed in evidence:
      DATES                                 HOURS
      1/17/14 - 1/30/14                     12.74
      1/31/14 - 2/13/14                     [not in record]
      2/14/14 – 2/27/14                     13.77
      2/28/14 – 3/13/14                     66.78
      3/14/14 - 3/27/14                     22.48
      3/28/14 – 4/10/14                     42.06

Averaging the available information for a ten-week period before the
industrial injury, the claimant worked an average of just under sixteen
hours per week. We find that this evidence supports the ALJ’s finding
regarding overtime.

                             CONCLUSION

¶14          For all of the foregoing reasons, we affirm the ALJ’s award.




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




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