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Pinetop Truck & Equipment Supply v. Industrial Commission6/27/1989
This is a special action review of an Industrial Commission award establishing the claimant's average monthly wage. The basic issue is whether a portion of the money paid to the claimant, a logger, was expense reimbursement and should therefore be excluded in the calculation of his average monthly wage. We find that the evidence supports the administrative law judge's finding that the so-called expense reimbursement was really a part of the claimant's wage, and must, therefore, be included in the calculation of benefits due the claimant.
In 1987, the claimant sustained an industrial back injury while employed by the petitioner employer, Pinetop Truck & Equipment Supply. His claim was accepted for benefits by the petitioner carrier, The State Compensation Fund. The Industrial Commission issued a notice of average monthly wage, setting the claimant's wage at $704.23 per month. A hearing was held at the claimant's request. The administrative law judge found that the average monthly wage equaled or exceeded the statutory maximum of $1,325, and this was affirmed on administrative review. This special action followed.
The claimant testified that he was hired in mid-April 1987 by Lonnie Covington of Pinetop. He testified that he, his wife, and Covington were present when he was told that he would be paid a certain number of cents per inch of tree diameter that he cut (stump inches), and he would be entitled to an additional ten percent of that amount if he performed top quality work (quality pay). The claimant testified that there was no written employment contract nor any other discussion about how he would be paid. Based on that conversation he went to work for Pinetop.
The claimant first became aware that Pinetop was designating a portion of his wages as "saw rental" when he received his first paycheck. Approximately forty to forty-five percent of his wages were paid on a separate green check, which he understood to be an expense reimbursement for his chain saw, tools, and other supplies. The claimant testified that he asked his employer about this practice and was told it was the only way Pinetop could pay such good wages. He stated that he did not question this practice any further because he needed the job and felt that he did not have any bargaining position with Pinetop. The claimant testified that when he added his brown wage check together with his green saw rental check, he was paid for exactly the number of stump inches he had cut plus an additional ten percent quality pay, without anything extra. The claimant consistently performed top quality work and received the additional ten percent quality pay.
The claimant's wife testified that she was present during her husband's conversation
with Covington, and she confirmed her husband's testimony. She stated that her husband brought her his daily stump inch figures, and she completed his daily timber faller's reports and calculated how much money he was entitled to receive from Pinetop. She also picked up her husband's paychecks and compared them against her records to be certain that he was being paid the correct amount. She agreed that the two checks together always represented the number of stump inches actually cut plus the quality pay, without anything extra. She testified that Pinetop's bookkeeper told her that the brown wage check included the quality pay. She also stated her husband earned between $1,500 and $1,600 per month at Pinetop.
Steven M. Massey, Pinetop's accountant and business manager, testified regarding the company's wage policy. He said that the company adds together the total amount owed for stump inches cut and qua
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