IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

SLAWOMIR P. WOZNIAK, Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent

BALLET ARIZONA, Respondent Employer, 

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, 

Respondent Carrier.

No. 1 CA-IC 14-0022

Special Action – Industrial Commission

ICA Claim No. 20131-480051

Carrier Claim No. 127-CB-ETY-0017J

The Honorable Rachel C. Morgan, Administrative Law Judge

AWARD SET ASIDE

COUNSEL

Crossman Law Office, P.C., Phoenix

By Harlan J. Crossman 

Counsel for Petitioner 
2

Industrial Commission of Arizona, Phoenix

By Andrew F. Wade

Counsel for Respondent

Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix

By R. Todd Lundmark

Counsel for Respondents Employer and Carrier

OPINION

Judge Michael J. Brown delivered the Opinion of the Court, in which 

Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.

B R O W N, Judge:

¶1 This is a special action review of an Industrial Commission of 

Arizona (“ICA”) award setting an average monthly wage. The question we 

address is whether the administrative law judge (“ALJ”) erroneously found 

that employee Slawomir Wozniak’s work as a ballet dancer was “seasonal”

and thus improperly relied on an expanded wage base when calculating

Wozniak’s average monthly wage. Because we conclude the ALJ erred, we 

set aside the award.

BACKGROUND

¶2 In March 2013, Wozniak injured his shoulder when lifting 

another dancer while working for Ballet Arizona. Wozniak filed a workers’ 

compensation claim, which was accepted for benefits by the respondent 

carrier, Travelers Property Casualty Company (“Travelers”). On June 20, 

2013, the ICA entered its Notice of Average Monthly Wage setting 

Wozniak’s wage at $4,185.78.1 Counsel for Travelers and Ballet Arizona 

requested a hearing on the ICA’s wage determination. At the subsequent 

 

1 Previously, Travelers had issued two notices of claim status setting 

forth its recommended average monthly wage calculations: May 7, 2013 

($3080) and June 7, 2013 ($4,185.78). The ICA, which is tasked with 

determining the employee’s average monthly wage for the purpose of 

establishing disability benefits, Arizona Revised Statutes (“A.R.S.”) section

23-1061(F), adopted Travelers’ second recommendation, which is the 

statutory maximum under A.R.S. § 23-1041(E).
WOZNIAK v. ICA/BALLET

Opinion of the Court

3

hearing, the ALJ heard testimony from Cathy Chatanawich, who handles 

payroll administration for Ballet Arizona, and Wozniak. 

¶3 Wozniak’s employment contract with Ballet Arizona for the 

2012-2013 season consisted of 32 “non-consecutive weeks”2 starting on 

August 13, 2012, and continuing at least through May 5, 2013. Wozniak 

was to be paid $770 per week during the contract term. Ballet Arizona 

retained an option to extend the term by up to four additional weeks for a 

total of 36 weeks, but could not extend the term beyond June 9, 2013. 

Wozniak was not permitted to obtain “any outside employment or work 

activity” without prior approval of Ballet Arizona, and was required to 

submit a certification of fitness for duty, completed by a health care 

provider, in the two months preceding the start of the 2012-2013 season. 

The contract also stated Ballet Arizona would provide a “comprehensive 

workers’ compensation insurance program” but that such coverage would 

not apply to injuries resulting from outside employment. 

¶4 Wozniak testified he had worked for Ballet Arizona as a 

dancer for five years at the time of his injury. Responding to a question 

from his counsel as to whether he could “go out and find a job any place” 

he wanted to during the summer, Wozniak stated, “No. No companies are 

working that. . . [,]” at which point his counsel interrupted, stating, “Okay. 

Thank you.” Wozniak explained, however, that beginning in September 

2012, he also worked as a teacher at a local ballet school, owned by his 

father, at a salary of $1000 per month.

¶5 Chatanawich testified that dancers at Ballet Arizona generally 

work from August to May, with a typical season lasting 36 weeks. She 

stated that Ballet Arizona had paid Wozniak $3080 in the 30-day period 

leading up to his injury and his compensation for the one-year period 

before his injury (spanning two contracts) was $28,494. 

¶6 The ALJ entered an award setting Wozniak’s average 

monthly wage at $3310. In reaching that figure, the ALJ adopted Travelers’

analysis in its post-hearing memorandum, which advocated treating

Wozniak as a seasonal employee and therefore divided Wozniak’s one-year 

earnings from Ballet Arizona of $27,720 by twelve, for an average monthly 

wage of $2310, instead of the amount actually earned by Wozniak for the 

 

2 Chatanawich explained that “non-consecutive weeks” means the 

artists do not dance for 32 continuous weeks. Instead, they often have time 

off between productions and these weeks do not count towards the 32-week 

contract term. 
WOZNIAK v. ICA/BALLET

Opinion of the Court

4

thirty-day period before his injury. Travelers did not contest that Wozniak 

was earning $1000 per month from the ballet school. Wozniak requested 

administrative review, and the ALJ supplemented and affirmed the Award. 

Wozniak then sought appellate review. 

DISCUSSION

¶7 In reviewing findings and awards of the ICA, we defer to the 

ALJ’s factual findings but review questions of law de novo. Young v. Indus. 

Comm’n, 204 Ariz. 267, 270, ¶ 14 (App. 2003). We consider the evidence in 

a light most favorable to upholding the ALJ’s award. Lovitch v. Indus. 

Comm’n, 202 Ariz. 102, 105, ¶ 16 (App. 2002). 

A. Average Monthly Wage Presumption

¶8 Neither party disputes that the ALJ properly included the 

$1000 per month Wozniak earned teaching ballet. See Wiley v. Indus. 

Comm’n, 174 Ariz. 94, 104 (1993) (when calculating an injured worker’s 

average monthly wage, earnings from simultaneous concurrent 

employments are typically aggregated to establish a claimant’s average 

monthly wage). Thus, the primary issue before us is whether the ALJ erred 

in calculating Wozniak’s average monthly wage as a ballet dancer by using 

an expanded wage base (twelve months) instead of a thirty-day 

presumptive average monthly wage. 

¶9 The essence of any workers’ compensation system is the 

concept of shared risk; the risk of injury should be allocated as evenly as 

possible between employee and employer and in proportion to the wages 

and premiums actually paid. Id. at 101 (“[F]airness to the employee and 

fairness to the employer or carrier are not opposite sides of the same coin.”). 

The primary purpose of the Arizona Workers’ Compensation Act, A.R.S. §§ 

23–901 to 23–1091 (“the Act”) is “to compensate an employee for wages he 

would have earned without his injury and, thereby, prevent him from 

becoming a public charge during his disability.” Lowry v. Indus. Comm’n, 

195 Ariz. 398, 400, ¶ 6 (1999). Because “[t]he goal of the Act is to determine 

a realistic pre-injury wage base which can serve as a standard of 

comparison with the post-injury earning capacity of the injured worker[,]

the emphasis in setting a worker’s average monthly wage is on what the 

employee has actually earned for his labors.” Id. (emphasis in original)

(internal quotation omitted). “The wage base should realistically reflect a 

claimant’s actual monthly earning capacity.” Id. 

¶10 Determining a claimant’s average monthly wage is governed 

by A.R.S. § 23-1041, which provides in pertinent part: 
WOZNIAK v. ICA/BALLET

Opinion of the Court

5

A. Every employee of an employer within the provisions 

of this chapter who is injured by accident arising out of and 

in the course of employment . . . shall receive the compensation 

fixed in this chapter on the basis of the employee’s average monthly 

wage at the time of injury.

B. If the injured or killed employee has not been 

continuously employed for the period of thirty days 

immediately preceding the injury or death, the average 

monthly wage shall be such amount as, having regard to the 

previous wage of the injured employee or of other employees 

of the same or most similar class working in the same or most 

similar employment in the same or neighboring locality, 

reasonably represents the monthly earning capacity of the 

injured employee in the employment in which the injured 

employee is working at the time of the accident.

 

C. If the employee is working under a contract by which 

the employee is guaranteed an amount per diem or per 

month, notwithstanding the contract price for such labor, the 

employee . . . shall be entitled to receive compensation on the 

basis only of the guaranteed wage as set out in the contract of 

employment [.]

. . . . 

G. For the purposes of this section, “monthly wage” 

means the average wage paid during and over the month in 

which the employee is killed or injured.

(Emphasis added.) To achieve the objective of compensating employees on 

the basis of wages actually earned, subsection A establishes a presumptive 

thirty-day wage period. Kennecott Copper Corp. v. Indus. Comm’n, 61 Ariz. 

382, 385 (1944) (“[I]f the employee, at the time of his injury or death, has 

been employed for thirty or more days, his normal and over-time wage for 

the previous thirty days shall be the basic wage for computing 

compensation[.]”); Elco Veterinary Supply v. Indus. Comm’n, 137 Ariz. 46, 47-

48 (App. 1983), approved, 137 Ariz. 45 (1983) (“[T]he wages earned during 

the 30 days preceding the injury are the presumptive average monthly 

wage[.]”).

¶11 If the presumptive period does not realistically reflect a 

claimant’s earning capacity, an ALJ has discretion to apply an expanded 
WOZNIAK v. ICA/BALLET

Opinion of the Court

6

wage base. Lowry, 195 Ariz. at 401, ¶ 10; see also Floyd Hartshorn Plastering 

Co. v. Indus. Comm’n (Floyd I), 16 Ariz. App. 498, 505 (1972) (“[I]f the 

evidence shows that for some reason said wages do not realistically reflect 

the claimant’s demonstrated earning capacity, then the [ALJ] should 

consider wages received over such a reasonable period in excess of thirty 

days as would allow the consideration of pertinent factors.”). However, the 

ALJ’s discretion to set a realistic wage base is limited; “the evidence 

[introduced at the hearing] must justify using a wage base greater than one 

month.” Davis v. Indus.Comm’n, 134 Ariz. 293, 296 (App. 1982); see also Floyd 

Hartshorn Plastering Co. v. Indus. Comm’n (Floyd II), 22 Ariz. App. 603, 605 

(1974) (explaining that while the ALJ “must be given the discretion to 

choose a period of time which he feels leads to a just result,” he or she “may 

not arbitrarily choose a period of time in calculating average monthly wage 

so as to improperly reflect claimant’s average monthly earnings”). 

Justifications for using an expanded wage base include intermittent 

employment, seasonal employment, or temporarily inflated wages. Lowry, 

195 Ariz. at 401, ¶ 10.

B. Seasonal Employment 

¶12 Based on Chatanawich’s testimony that Wozniak earned 

$3080 from his work with Ballet Arizona during the thirty days 

immediately prior to his injury, his presumptive average minimum wage 

is: 

$3080 + $1000 (monthly wages for teaching ballet) = $4080.

Wozniak argues the ALJ erred in setting his average monthly wage at less 

than this presumptive amount. Travelers counters that the ALJ acted 

within her discretion in deviating from the presumptive thirty-day 

calculation because Wozniak is a seasonal employee, based on the ballet 

season, which roughly runs from August to May. Travelers argues the ALJ 

correctly applied the formula for calculating the average monthly wage of 

seasonal employees by dividing Wozniak’s total yearly earnings by twelve

months as follows: 

$770 per week x 36 weeks (maximum number of weeks in 

Ballet Arizona season) = $27,720

$27,720 ÷ 12 months = $2310

$2310 + $1000 = $3310
WOZNIAK v. ICA/BALLET

Opinion of the Court

7

¶13 “Seasonal employment refers to occupations which can be 

carried on only at certain seasons or fairly definite portions of the year. It 

does not include such occupations as may be carried on throughout the 

entire year.” Pettis v. Indus. Comm’n, 91 Ariz. 298, 302 (1962); see also Black’s 

Law Dictionary (10th ed. 2014) (defining “seasonal employment” as “an 

occupation possible only during limited parts of the year, such as a 

summer-camp counselor, a baseball-park vendor, or a shopping mall 

Santa” and “seasonal employee” as “an employee who is engaged to work 

for only a certain time of the year when a business anticipates a cyclical 

increase in demand”).

3 An employee who does not work for a portion of 

 

3 The Pettis court cited Hiestand v. Ristau, 284 N.W. 756 (Neb. 1939), 

which in turn relied on a prior Nebraska case that included a detailed 

explanation of “seasonal employment” in the context of workers’ 

compensation law: 

Many words and phrases used in the Workmen’s 

Compensation Law are therein given a statutory definition. 

“Seasonal” and “seasonal employment” are not so defined. 

They must be deemed to have been used in the sense that they 

are commonly and popularly understood. The word 

“seasonal” pertains, of course, to the four seasons of the 

year—spring, summer, autumn and winter—but is popularly 

used in a somewhat wider sense. We speak of the planting 

season, the harvesting season, hop-picking season, peach and 

apple-picking season, the berry-picking season, and many 

other like expressions. All of these have reference to a 

particular and somewhat definite period of the year. Natural 

ice harvesting can only be carried on in the colder months. 

Berry-picking must be carried on when the berries are ripe 

and ready for market; so with peaches, apples and other fruit 

crops. The planting season is usually in the spring months; 

the harvesting season in the summer months; and we think it 

is in this sense that the term was used. Shoveling and delivery 

of coal are not confined to any season of the year but are 

carried on throughout the year. 

. . . . 

We think the term “seasonal employment,” as used in the 

Compensation Law, has reference to an employment which 
WOZNIAK v. ICA/BALLET

Opinion of the Court

8

the year is not a seasonal worker if the employee is willing to work and his 

failure to work is attributable to the employer’s decisions. See Pettis, 91 

Ariz. at 302; see also Miller v. Indus. Comm’n, 113 Ariz. 52, 54 (1976) (“The test 

is whether the employment not the worker is intermittent or erratic.”).

¶14 In Pettis, the claimant argued the ICA’s decision to compute 

his average monthly wage by dividing his total yearly earnings by twelve 

months failed to account for the two months of the year he did not cut 

timber due to a shutdown by his employer. 91 Ariz. at 300. Evidence 

showed that weather conditions in Arizona permitted timber cutting yearround and the claimant testified “he could have worked had his employer 

worked.” Id. at 302. The Pettis court explained that an expanded wage base 

of twelve months could be a proper method of calculating the average 

monthly wage of a seasonal employee, but held the claimant was not a 

seasonal employee because his two-month loss of work was due to an 

“employer shutdown” over which he had no control. Id. at 303.

¶15 In Powell v. Industrial Commission (Powell I), 7 Ariz. App. 518,

520 (1968), the ICA determined that a teacher working pursuant to a ninemonth contract of employment should be awarded workers’ compensation 

as if she were a seasonal employee because she did not work from June 

through August. The ICA therefore calculated the teacher’s average 

monthly wage by dividing her annual salary by twelve. Id. This court 

disagreed with the calculation, holding that the teacher’s employment “was 

a matter of contract,” “not seasonal[,]” and her average monthly wage 

should be set at the total of her two bimonthly paychecks. Id. at 522. The 

supreme court affirmed, also holding that the teacher was not a seasonal 

worker and analogizing her nine-month contract to the “employer 

shutdown” in Pettis. Powell v. Indus. Comm’n (Powell II), 104 Ariz. 257, 263 

(1969). Applying the reasoning in Pettis, the supreme court concluded there 

was school work in the summer months, but the teacher’s particular school 

did not employ teachers during the summer and did not offer full-year 

contracts; thus, it would be unfair to include in the average monthly wage 

calculation “a period of time not covered in the contract by calling it 

seasonal employment.” Id. at 263; see also Stanton v. Indus. Comm’n, 116 Ariz. 

1, 3 (1977) (holding an ALJ erred in calculating an award based on seasonal 

employment when claimant, a high school student, was hired to work only 

 

must have been completed during some rather definite period 

of the year.

Hogsett v. Cinek Coal & Feed Co., 255 N.W. 546, 547 (Neb. 1934). 
WOZNIAK v. ICA/BALLET

Opinion of the Court

9

for three months during the summer and his “job duties were performed at 

other times than in the summer months by other regular employees”).

4

¶16 As in Pettis and Powell, the duration of Wozniak’s 

employment was determined exclusively by Ballet Arizona and not by 

Wozniak’s own employment preferences or by climate-related restrictions 

limiting ballet performances to a specific period less than year-round. 

Wozniak’s employment was based on Ballet Arizona’s anticipated 

performance schedule for the 2012-2013 season, and set out in Wozniak’s 

employment contract, which he signed at least two months before the 

season began. Even after Wozniak and Ballet Arizona entered into the 

contract, Ballet Arizona retained further control over the contract term, 

reserving for itself the “option” to extend the season and providing for a 

maximum term of ten calendar months. 

¶17 Although the ALJ found that Wozniak “testified he cannot 

find work in the summer any place he wanted to because companies were 

not working[,]” the hearing transcript shows Wozniak began to answer “No 

companies are working that . . .” before he was interrupted by counsel. 

Travelers presented no evidence indicating employment as a ballet dancer 

or similar work was unavailable to Wozniak during the summer months. 

Compare Powell I, 7 Ariz. App. at 521 (holding that employment is not 

 

4 Travelers has not cited, nor has our research revealed, any 

reported decision affirming an ICA award that deviated from the § 23-

1041(A) presumptive thirty-day wage period by applying the seasonal 

employment exception. There is at least one reported Arizona decision 

affirming the ICA’s application of the seasonal employment exception, but 

that occurred in the context of calculating an award pursuant to § 23-

1041(B). See Baker v. Indus. Comm’n, 119 Ariz. 102, 104 (App. 1978) 

(affirming an award to a claimant injured on his fourth day of employment

as a cotton picker and finding “[i]t is undisputed that cotton picking cannot 

be carried on throughout the year” and that the 69-year-old claimant had 

specifically testified he intended to limit his employment to the cotton 

harvest so he would not lose his Social Security benefits). But see Miller, 113 

Ariz. at 54 (holding that the earning capacity of a college student injured 

during the first thirty days of his summer employment “is not to be 

determined by whether he intended to work steadily in the industry in 

which he is employed” and that “[a]ny division by twelve months of an 

earning base established by three months of wages finds no support 

whatsoever in the statute”).
WOZNIAK v. ICA/BALLET

Opinion of the Court

10

seasonal when evidence established the petitioner is “free to teach during 

the portion of the year not expressly covered by contract”) with Baker, 119 

Ariz. at 103-04 (holding that a cotton picker was a seasonal employee 

because “cotton picking cannot be carried on throughout the year” but 

noting that the court might “face a different question if petitioner had been 

consistently employed throughout the year . . . going from one type of crop 

harvest to the next”). Nor did Travelers present evidence showing that 

ballet dancing (or similar work) can only be performed during certain times 

of the year or that Ballet Arizona was constrained in its designation of 

Wozniak’s contract term by weather, climate, or other attributes of 

seasonality. See Pettis, 91 Ariz. at 302. 

¶18 Instead, the evidence presented supports the conclusion that 

Wozniak’s employment was not seasonal. In June 2012, immediately upon 

termination of his 2011-2012 contract, Wozniak signed a new contract with 

Ballet Arizona for an employment term of up to ten calendar months

beginning in August 2012. Under the contract, Wozniak was required to 

obtain a “certification of fitness for duty” two months before the start of the 

2012-2013 season and to appear at marketing and media events outside 

work hours. He could not, however, acquire additional outside 

employment, as a ballet dancer or otherwise, without the consent of Ballet 

Arizona or its artistic director. Thus, although Ballet Arizona’s

performance schedule spanned a period of less than one year, as a practical 

matter Wozniak was contractually bound to perform certain obligations for

Ballet Arizona throughout the year. Given the nature of Wozniak’s 

employment arrangement with Ballet Arizona, and without any evidence 

that unavailability of work during the summer months is a “common and 

ordinary incident of employment” in the ballet industry, the ALJ erred in 

finding Wozniak’s employment with Ballet Arizona was seasonal. 

C. Applicability of A.R.S. § 23-1041(C)

¶19 Citing A.R.S. § 23-1041(C), which provides that an employee 

working under a contract involving a guaranteed wage is entitled to 

compensation based on that amount, Wozniak further argues that his 

average monthly wage from Ballet Arizona should be higher than $3080,

the amount he earned in the thirty-day period prior to his injury. He asserts 

the average monthly wage should be $3,336.41, calculated by multiplying 

$770 (his contracted weekly wage) times 4.333 (the number of weeks in a 

month). 
WOZNIAK v. ICA/BALLET

Opinion of the Court

11

¶20 Interpreting an earlier version of § 23-1041,

5 the supreme 

court found “[i]f, as a matter of fact, the evidence showed that petitioner 

had been guaranteed by the terms of his employment a minimum number 

of hours per week, we think this sentence of the section would have applied 

and that his compensation should have been calculated on that basis.” 

Brisendine v. Skousen Bros., 48 Ariz. 416, 424 (1936). Our supreme court in 

Powell II likewise concluded that because “it would be inequitable for the 

school district to have to pay premiums on [a] 3-month period for which no 

[work-related] accident could occur,” it would likewise be inequitable to set

the teacher’s average monthly wage based on a full year when she was 

contracted to work only nine months. 104 Ariz. at 263. Without expressly 

relying on A.R.S. § 23-1041(C), the supreme court held that the teacher’s 

average monthly wage “was covered by the contract under which she was 

employed” and “should be fixed by dividing the amount of the contract by 

the period of employment.” Id.; see also Powell I, 7 Ariz. App. at 522 (“We 

hold that the petitioner’s employment was a matter of contract[.]”).

¶21 Section 23-1041(C) provides that if an employee is working 

pursuant to an employment contract that guarantees a wage, the employee 

“shall be entitled to receive compensation on the basis only of the 

guaranteed wage” set forth in the contract. Assuming, without deciding,

that A.R.S. § 23-1041(C) requires an ALJ to set the average monthly wage at 

the amount guaranteed by an employment contract, Wozniak was not

guaranteed a specific wage under the terms of his contract with Ballet 

Arizona. Unlike the teacher in Powell, who was paid $455.23 every two 

 

5 That version of the statute provided: 

If the employee was working under a contract with his 

employer under the terms of which the employee was 

guaranteed an amount per diem or per month, 

notwithstanding the contract price for such labor, then said 

employee . . . shall be entitled to receive the compensation on the 

basis only of the guaranteed wage as set out in said contract of 

employment, whether such amount was paid on a per diem 

basis or on a monthly basis, provided that in no event shall 

such basis be less than the wages paid to employees for 

similar work not under contract. 

1933 Ariz. Sess. Laws, 1st S.S., ch. 11, § 6 (emphasis added). 
WOZNIAK v. ICA/BALLET

Opinion of the Court

12

weeks for nine months, Powell I, 7 Ariz. App. at 522, Wozniak contracted to 

work as a ballet dancer for up to 36 non-consecutive weeks. He was paid 

$770 for each week he worked, but if he did not work, he was not paid. 

Thus, depending on Ballet Arizona’s performance schedule, Wozniak may 

have earned $3080 in a particular month, as he did in the 30 days preceding 

his injury, but he also could have earned as little as $1540 in a month, given

Chatawanich’s testimony that it was typical for Ballet Arizona to take a twoweek break in early January.

¶22 Moreover, Wozniak was not guaranteed to earn a set salary 

for the entire year. Cf. Powell I, 7 Ariz. App. at 520 (“The petitioner’s salary 

was specified in the sum of $9,039.50.”). Instead, Ballet Arizona expressly 

reserved the “option” to extend the stated 32-week term by an additional 

four weeks. Wozniak could have made as little as $24,640 or as much as 

$27,720, depending on whether Ballet Arizona decided to exercise its option 

to extend the contract.

6 Given the variability of Wozniak’s employment 

contract with Ballet Arizona, he did not receive a guaranteed wage under 

the contract. Thus, the best approximation of Wozniak’s earning capacity at 

the time of his injury is his actual earnings in the 30-day period prior to his 

injury. See Lowry, 195 Ariz. at 401, ¶ 11 (explaining that the 30-day 

presumption “emphasizes reliance upon actual wages [the employee] has 

already earned to create the wage base that most accurately reflects his true 

average monthly wage” and involves “no extrapolation or speculation 

about unearned wages”).

CONCLUSION

¶23 We hold that the ALJ erred in calculating Wozniak’s average 

monthly wage as if he were a seasonal employee. The award is therefore 

set aside.

 

6 No evidence regarding the actual schedule for the 2012-2013 Ballet 

Arizona season was presented at the hearing.