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Pinetop Truck & Equipment Supply v. Industrial Commission6/27/1989
esced in something, it was not in anything that his employer described. The administrative law judge rejected the employer's testimony about travel expenses and, as we have noted, implicitly rejected the notion that payments for saw rental were in excess of amounts owed as wages. It is, however, true that the claimant believed that the green reimbursement check was denoted saw rental merely to allow Pinetop to evade payment of workers' compensation, social security, and unemployment tax on forty to forty-five percent of his actual wages. It is also true that the claimant went along with this arrangement. This is the acquiescence which the Fund says precludes an award of the maximum average monthly wage.
Reimbursements for saw rental, when clearly contracted for, have been excluded from the calculation of the average monthly wage. See Pettis v. Industrial Comm'n, 91 Ariz. 298, 372 P.2d 72 (1962). The same is true of travel expenses. Moorehead v. Industrial Comm'n, 17 Ariz. App. 96, 99, 495 P.2d 866, 869 (1972); Young v. Industrial Comm'n, 17 Ariz. App. 100, 101, 495 P.2d 870, 871 (1972). This does not mean that the award should be set aside.
The testimony and circumstances suggest that Pinetop's method of compensation was devised to do just what the claimant surmised -- evade, or at least impermissibly minimize, the employer's statutory responsibility to procure benefits for its workers. The administrative law judge apparently had the same feel for the matter. Here, there was no clear contract provision, at least not at the outset, for saw rental. But even if the modification acquiesced in by the claimant was clear, expenses are not to be excluded from a calculation of the average monthly wage unless they bear a reasonable relationship to the actual work-related expense incurred. See Moorehead, 17 Ariz. App. at 99-100, 495 P.2d at 869-70. There was no suggestion that such was the case here. While a reasonable payment for saw rental, duly contracted for, might legitimately be excluded from wages, calling forty-five percent of a worker's pay saw rental does not make it saw rental.
The award is affirmed.
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