Workers' Compensation

Arizona: Post-Injury Wages from Wal-Mart Employee’s Second Job Part of Average Monthly Wage

For purposes of workers’ compensation benefits, the average monthly wage of a Wal-Mart employee should be computed not only upon the basis of the $9.60/hour he earned at the retailer, but also based upon the projected supplemental wages he would have earned working part-time for a landscaper, in spite of the fact that he sustained injuries at Wal-Mart just a few days after he’d landed the part-time job. The court acknowledged that ordinarily a worker’s average monthly wages should be based upon the income he or she enjoyed during the 30 days prior to the injury, but, quoting Larson’s Workers’ Compensation Law, the court indicated that a mere mechanistic computation was not the goal.  Rather, the law required that the ALJ determine the fair earning capacity of the injured employee.  While the claimant had not earned any wages at the part-time job prior to the injury at Wal-Mart, he did have several pay stubs showing his landscaping earnings shortly after the injury.  The court stated that when a claimant has been hired at a concurrent job and, as here, offered proof sufficient to establish wages he or she earned during and over the month of the injury without relying on speculation, the ALJ should have included those earnings in the average monthly wage.

Reported by Thomas A. Robinson, J.D.

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See Berryhill v. Industrial Comm’n (Wal-Mart Stores, Inc., 2013 Ariz. App. LEXIS 180 (Aug. 29, 2013) [2013 Ariz. App. LEXIS 180 (Aug. 29, 2013)]

See generally Larson’s Workers’ Compensation Law, § 93.01 [93.01]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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