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Berryhill v. Industrial Commission of Arizona - 8/30/2013

Arizona Court of Appeals Division One Holds that Wages from New Second Job Should Be Considered in Workers’ Compensation Claim


A Wal-Mart employee was injured and filed a workers’ compensation claim.  Three days before the injury, the employee accepted a second job and was trained the same day, but was not paid for the training or other activities that day.  He began working at the second job the day after his injury.

An injured employee’s workers’ compensation payment is based upon “the average wage paid during and over the month in which the employee is . . . injured.”  A.R.S. § 23-1041(G).  In determining the employee’s average wage, the Industrial Commission of Arizona considered only wages from Wal-Mart, not the second job.  An Administrative Law Judge agreed, reasoning that at the time of the injury, the employment at the second job had not begun and the worker had not been paid.

The Court of Appeals reversed.  It held that earnings of a second job in the month after the employee’s injury should be considered when they reflect the employee’s actual pre-injury earning capacity.  The Court emphasized that the employee must offer non-speculative proof sufficient to establish the wages from the second job.

Chief Judge Johnson authored the opinion.  Judges Swann and Howe concurred.

Posted by: Eric Fraser

Posted On: 9/3/2013