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Tartaglia v. Industrial Commission3/9/1993
day, July 3, Thursday, July 5, Friday, July 6, Monday July 9 and Tuesday, July 10, a total of five days.
The issue of whether the statute refers to calendar days or working days has not been addressed in Arizona. Other jurisdictions which have discussed this question have come to different results. In Western Surety Co. v. Mydland, 85 S.D. 172, 179 N.W.2d 3 (1970), the court held that seven working days was the threshold. In Ice v. Industrial Comm'n, 120 Colo. 144, 207 P.2d 963 (1949), the court held that the ten-day threshold in the statute meant calendar days.
Giving the words and phrases of A.R.S. ยง 23-1062(B) their ordinary meaning, State v. Wise, 137 Ariz. 468, 671 P.2d 909 (1983), we believe the first seven-day period a worker is absent from work means seven working days. In the statute, the legislature clearly stated that, after the first seven days have passed, "one week" must pass before compensation is paid from the date of the injury . A week is defined as "a period of seven consecutive days." Black's Law Dictionary at 1594 (6th ed. 1990). If the legislature had meant the first seven-day period to be calendar days, it would have said, "Compensation shall not be paid for the first week of the injury." It did not, even though it used the term "week" in the latter part of the statute. We must interpret a statute to give effect to the intent of the legislature. Mardian Const. Co. v. Superior Court, 113 Ariz. 489, 557 P.2d 526 (1976). The legislature must have had a reason for using "seven days" in one part of the statute and "one week" in another. We conclude that the reason for the different terminology is that "seven days" was intended to mean working days and not consecutive calendar days. City of Phoenix v. Superior Court, 139 Ariz. 175, 677 P.2d 1283 (1984). We are cognizant of the language in County of Maricopa v. Industrial Comm'n, 145 Ariz. 14, 18, 699 P.2d 389, 393 (App.1985), that " he administrative law Judge found that the waiting period consisted of consecutive calendar days following the day of injury ." However, as the court acknowledged, whether the statute refers to working days or calendar days was not an issue in this case.
We recognize that the worker's compensation statutes are to be liberally construed. Fremont Indem. Co. v. Industrial Comm'n, 144 Ariz. 339, 697 P.2d 1089 (1985). However, when the language used by the legislature is clear, the statutory language must be followed. Jackson v. Phoenixflight Productions, 145 Ariz. 242, 700 P.2d 1342 (1985).
Petitioner presented no medical testimony to support his claim that his prior back injury prevented him from working full time from July 10 to August 7. The burden of proof on this issue was on petitioner. Reynolds Metals Co. v. Industrial Comm'n, 119 Ariz. 566, 582 P.2d 656 (App.1978). Petitioner's physical condition and its causal relationship to the industrial injury to his back must be established by expert medical testimony. Johnson-Manley Lumber v. Industrial Comm'n, 159 Ariz. 10, 764 P.2d 745 (App.1988). Petitioner has failed to meet his burden.
The award is affirmed.
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