Lowry v. Industrial Commission

In Lowry v. Industrial Commission, 195 Ariz. 398, 989 P.2d 152 (1999), the Arizona Supreme Court considered whether a claimant's average monthly wage should include earnings from concurrent employment held within the thirty days before, but not on the date of, an industrial injury. Id. at 399, P1, 989 P.2d at 153. Lowry, the claimant, had been employed as both a building inspector and a volunteer firefighter. Id. at P2. However, the city terminated his position as a building inspector. Four days later, Lowry sustained an industrial injury while working as a firefighter. Id. In calculating Lowry's average monthly wage, the ALJ refused to include his wages as a building inspector because he did not hold that position at the time of his injury. Id. Instead, the ALJ relied solely on Lowry's wages as a firefighter. Id. The Court affirmed the ALJ's award, but on review, the supreme court reversed and held that the ALJ should have considered Lowry's earnings from both positions in the average monthly wage calculation: We adopt a presumptive rule that, consistent with the direction of A.R.S. 23-1041, looks first to wages earned during the thirty-day period preceding injury. But, because the purpose of the Act remains to allow compensation based upon an employee's actual earnings, the judge retains discretion to consider those factors that affect and measure that value. We reject the Fund's argument that applying the presumptive thirty-day period to measure Lowry's actual earnings requires speculation about his future earning potential. To the contrary, this approach emphasizes reliance upon actual wages he has already earned to create the wage base that most accurately reflects his true average monthly wage. Our interpretation of the statute permits the administrative law judge to calculate the wage base from numbers easily obtained, involving no extrapolation or speculation about unearned wages. For these reasons, we hold that Lowry's average monthly wage includes wages he earned from both of his jobs, even though he was not concurrently employed on the date of injury. Id. at 401, PP10-12, 989 P.2d at 155. In Lowry, the focus was on wages earned during the thirty-day period before the industrial injury, not on wages potentially available during a post-injury period. Although the supreme court emphasized that concurrent employment on the date of injury was not a prerequisite to utilizing all of the wages from the thirty days before injury, absent unusual circumstances, a claimant must have simultaneously held and earned wages from both jobs within the presumptive thirty-day pre-injury period. See id. at 402, P17, 989 P.2d at 156.