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An Arizona appellate court held that the Industrial Commission erred when it found a professional ballet dancer’s work was “seasonal” because the employer’s ballet “season” was usually 32 weeks each year. Because of that determination, the Commission computed the dancer’s average monthly wage by taking his annual wages and dividing by 12. The Court disagreed. Initially, it noted that the presumptive average monthly wage for a worker was determined by the wages earned in the 30-day period just prior to the injury. Citing prior case law, the Court noted that teachers, for example, were not seasonal workers. As with a teacher’s contract, the length of the ballet dancer’s “season” was set by the employer and not based on issues of climate or growing season, as was often the case in truly seasonal workers. The dancer’s contract did not allow him to seek employment with other ballet companies without the employer’s consent. As a practical matter, therefore, the dancer was employed throughout the year and the presumptive computation of average monthly wage should have been utilized.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.
See Wozniak v. Industrial Comm’n (Ballet Ariz.), 2015 Ariz. App. LEXIS 204 (Sept. 24, 2015) [2015 Ariz. App. LEXIS 204 (Sept. 24, 2015)]
See generally Larson’s Workers’ Compensation Law, § 93.02 [93.02]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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