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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                                 GO DADDY,
                              Petitioner Employer,

                BERKLEY NATIONAL INSURANCE CO.,
                  c/o YORK RISK SERVICES GROUP,
                          Petitioner Carrier,

                                        v.

            THE INDUSTRIAL COMMISSION OF ARIZONA,
                           Respondent,

                           GREGORY A. SEBION,
                            Respondent Employee.

                             No. 1 CA-IC 18-0062
                               FILED 6-4-2019


               Special Action - Industrial Commission
                        ICA No. 20161-200049
                         INSCA No. 6360255
       The Honorable Colleen Marmor, Administrative Law Judge

                            AWARD SET ASIDE


                                   COUNSEL

Jardine, Baker, Hickman & Houston, PLLC, Phoenix
By Charles G. Rehling, Jr.
Counsel for Petitioner Employer/Carrier
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent ICA

Matt Fendon Law Group, Phoenix
By Matt C. Fendon
Counsel for Respondent Employee



                      MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kent E. Cattani joined.


J O H N S E N, Judge:

¶1          Go Daddy and its insurer, Berkley National Insurance
Company (together, "Respondents") petition for review of the Industrial
Commission's award establishing Gregory A. Sebion's average monthly
wage. For the following reasons, we set aside the award.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In a prior decision, an Administrative Law Judge ("ALJ")
found Sebion suffered a compensable injury on February 12, 2016, while
employed by Go Daddy. For purposes of calculating Sebion's temporary
disability benefits and potential lost earning capacity, Berkley set his
average monthly wage at $2,599.80, based solely on his employment with
Go Daddy. Sebion requested a hearing, arguing his average wage needed
to take into account that he also worked at Advanced Interior Electronics,
Inc. ("AIE").

¶3              At the hearing, Respondents did not contest that Sebion was
working at both AIE and Go Daddy on the date of his injury. Sebion had
been training to be a service technician with AIE, which subcontracts with
a telecommunications company to install and repair home cable systems.
Having just completed training, Sebion was due to begin working on his
own as a technician for AIE when he was injured. Meanwhile, on the date
of his injury, Sebion also was three days into a five-week Go Daddy training
course preparing him to work at a company call center. The ALJ took into
account what Sebion earned from his concurrent employment at both



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                    GO DADDY/BERKLEY v. SEBION
                         Decision of the Court

companies in calculating his average monthly wage to be $3,515.49,
including $2,599.80 in wages from Go Daddy and $915.69 from AIE.

¶4              After the ALJ affirmed her decision upon review,
Respondents timely petitioned for review. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes
("A.R.S.") sections 12-120.21(A)(2) (2019), 23-951(A) (2019) and Rule 10 of
the Arizona Rules of Procedure for Special Actions.1

                               DISCUSSION

¶5            We defer to an ALJ's factual findings but review questions of
law de novo. Gurtler v. Indus. Comm'n, 237 Ariz. 537, 539, ¶ 7 (App. 2015).
We will uphold an ALJ's award unless it is not reasonably supported by the
evidence. Id.

¶6          The determination of a claimant's average monthly wage is
governed by A.R.S. § 23-1041 (2019), which provides in pertinent part:

       A. Every employee of an employer within the provisions of
       this chapter who is injured by accident arising out of and in
       the course of employment . . . shall receive the compensation
       fixed in this chapter on the basis of the employee's average
       monthly wage at the time of injury.

                               *      *      *

       G. For the purposes of this section, "monthly wage" means
       the average wage paid during and over the month in which
       the employee is killed or injured.

¶7             When a claimant is working concurrently for two employers
at the time of the injury, earnings from both jobs may be aggregated to
establish the claimant's average monthly wage. Wiley v. Indus. Comm'n, 174
Ariz. 94, 104 (1993). The claimant has the burden of establishing concurrent
employment and earnings on the date of the injury. Berryhill v. Indus.
Comm'n, 232 Ariz. 603, 606, ¶ 9 (App. 2013).

¶8          As relevant here, "[t]he primary purpose of the [Arizona
Workers' Compensation] Act is to compensate an employee for wages he
would have earned without his injury." Lowry v. Indus. Comm'n, 195 Ariz.


1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


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                    GO DADDY/BERKLEY v. SEBION
                         Decision of the Court

398, 401, ¶ 6 (1999). In the usual case, the worker's average monthly wage
is presumed to be what the claimant actually earned during the 30 days
before the injury. Id. at ¶ 10. But that presumption is rebuttable, and a
different measure can be used where appropriate to reflect "an accurate
measure of [the claimant's] actual pre-injury earning capacity." Id. at ¶ 9.
In Lowry, for example, a worker who had held two jobs was terminated
from the higher-paying job a few days before he suffered a compensable
injury. Id. The supreme court set aside the ALJ's determination of the
worker's average monthly wage because it was based only on what the
worker earned at his lone remaining job. Id. at ¶ 12. Under those
circumstances, wages from both jobs needed to be taken into account "to
determine a realistic pre-injury wage base." Id. at 400, ¶ 6 (quoting Wiley,
174 Ariz. at 99).

¶9            According to the evidence at the hearing, as a full-time service
technician at AIE, Sebion would work Sunday through Thursday and
would be assigned service calls throughout the West Valley. His first
service call would begin at 8:00 a.m., and he would finish work between
5:00 and 7:00 p.m. each day. Meanwhile, if Sebion had completed his Go
Daddy training program, he would have been assigned to work at a call
center in Scottsdale or Gilbert eight hours a day, five days a week,
beginning at either 2:30 or 3:30 p.m. His work week at Go Daddy would be
either Tuesday through Saturday or Sunday through Thursday.
Accordingly, including a modest allowance for travel time, on three or four
days a week, Sebion would have had to leave his AIE job two to five hours
early to make it to Go Daddy on time.

¶10            Asked how he would make that schedule work, Sebion
testified that other service technicians on his team at AIE would not mind
taking the service calls he would have to miss because it would mean more
money for them. In support of that proposition, he testified his "team lead"
had told him other technicians could take service calls for Sebion when he
left work early. But even accepting as true Sebion's account of his
conversation with his "team lead," he misunderstood the situation. Alyssa
Kechely is the operations manager at AIE and is in charge of hiring, firing
and schedule-making. She testified she was the only person at AIE with
authority to approve an altered work schedule for Sebion. Kechely further
testified that service technicians work full time, she would not permit any
service technician to work less than full time, and, because service calls are
assigned from the telecommunications company, the work-around Sebion
proposed would not be allowed because it would impose a heavier load on
the other technicians. Kechely testified she would have required Sebion to



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                         Decision of the Court

choose between working at AIE and working at Go Daddy because she does
not allow employees to have simultaneous "other full-time employment."

¶11            On this record, Sebion's contention that he could have
continued working full time for both AIE and Go Daddy is sheer
speculation, not reasonably supported by the evidence. See Morse v. Indus.
Comm'n, 213 Ariz. 575, 579, ¶¶ 15-16 (App. 2006) ("projected earnings from
a job Claimant has not yet performed are too speculative a basis on which
to set the average monthly wage").

¶12           Sebion cites Lowry and Berryhill to support the ALJ's award.
But neither of those concurrent-employment cases is relevant; the claimants
in those cases both had successfully held down two simultaneous jobs for
extended periods of time. See Lowry, 195 Ariz. at 399-401, ¶¶ 2, 9, 11
(applicant held concurrent employment "for at least five months"); Berryhill,
232 Ariz. at 604-05, 607, ¶¶ 2-4, 16 (applicant worked both jobs "for several
weeks" after his compensable injury). Here, by contrast, any presumption
that Sebion would be able to continue working concurrently at AIE and Go
Daddy is not supported by any reasonable evidence. See Gurtler, 237 Ariz.
at 539, ¶ 7.

¶13            Nor do we accept Sebion's contention that we should affirm
the ALJ's award because it was based simply on what he actually earned
during the 30 days before the injury. It appears the ALJ calculated Sebion's
average monthly wage by adding what he earned from AIE during the 30
days before the injury to an extrapolated amount based on three days of
work at Go Daddy. Although that approach may be appropriate under
some circumstances, in this case, such an approach disregarded the purpose
of the inquiry, which is to ascertain the claimant's "actual pre-injury earning
capacity." Lowry, 195 Ariz. at 401, ¶ 9. As stated, Sebion worked only three
days for Go Daddy during the month before his injury. Because he was still
in training at AIE, he had to leave his work at AIE at least seven hours early
on each of those days to be on time for his training shifts at Go Daddy. The
record makes clear that he obtained permission to leave early on those days
only by misrepresenting why he needed to cut short his day: Kechely
testified she approved Sebion's altered schedule the week of his injury only
because Sebion had said he needed to leave to care for his mother and did
not say he was leaving to go train at another job. Kechely testified that, had
Sebion been truthful with her as to why he wanted to alter his schedule, she
would not have approved such request, let alone authorized such a
schedule on a continuing basis.




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                    GO DADDY/BERKLEY v. SEBION
                         Decision of the Court

¶14            In short, the problem with Sebion's argument is not that he
managed both jobs only for three days. It is that he managed both jobs only
by misrepresenting why he needed to leave work at AIE early. Sebion had
the burden to prove his concurrent employment accurately reflected his
realistic earning capacity and, other than his own self-serving testimony, he
presented no evidence to support that proposition. Although we generally
defer to the ALJ's credibility determinations, this is not a matter of
credibility. Kechely, who oversaw hiring and scheduling at AIE, testified
she would not have allowed Sebion to leave work early to go to training at
Go Daddy and would not have allowed him to leave work early to go to
another full-time job at Go Daddy. Thus, the evidence before the ALJ
offered no support for a finding that Sebion's actual wages during the 30
days before his injury represented his realistic earning capacity with both
employers.

                              CONCLUSION

¶15          For the reasons stated above, we set aside the ALJ's award.




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




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