NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

DENNIS COBURN, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

LARRY H MILLER MGMT CORP, Respondent Employer,

WCF NATIONAL INSURANCE CO, Respondent Insurance Carrier.

No. 1 CA-IC 22-0030 

Special Action - Industrial Commission

ICA Claim No. 20210690098

Carrier Claim No. 202104546

The Honorable Jeanne Steiner, Administrative Law Judge

AFFIRMED

COUNSEL

Law Office of Eric C. Awerkamp, Mesa

By Eric C. Awerkamp

Co-Counsel for Petitioner Employee

Stillwell Law Office PLLC, Phoenix

By Thomas R. Stillwell 

Co-Counsel for Petitioner Employee

FILED 8-08-2023
2

Industrial Commission of Arizona, Phoenix

By Gaetano J. Testini 

Counsel for Respondent

Lundmark Barberich La Mont & Slavin PC, Phoenix

By Kirk A. Barberich 

Counsel for Respondent Employer and Insurance Carrier

MEMORANDUM DECISION

Acting Presiding Judge Angela K. Paton delivered the decision of the Court, 

in which Judge D. Steven Williams and Judge Maria Elena Cruz joined.

P A T O N, Judge:

¶1 Dennis Coburn seeks review of an Industrial Commission of 

Arizona (“ICA”) award setting his monthly wage for workers’

compensation at $4,634.18. We affirm the award.

FACTS AND PROCEDURAL HISTORY

¶2 Coburn worked as an automotive transmission mechanic at

Larry H. Miller Mgmt. Corp. (“Employer”) for over 25 years. In February 

2021, he was injured on the job and applied for workers’ compensation. The 

ICA approved his application and issued a notice setting his average 

monthly wage (“AMW”) at $4,634.18. The ICA based Coburn’s monthly 

wage on his earnings from February 11, 2020, through February 9, 2021.

¶3 Coburn requested a hearing to dispute his noticed AMW. At 

the hearing, he argued his AMW should be based on his earnings between 

2016–2019 and set at the statutory maximum of $5,030.33. Coburn 

submitted pay stubs showing monthly earnings of over $5,000 until 2019,

followed by a one-third drop in earnings in 2020. He argued the ICA erred 

by basing his AMW on his 2020 earnings because those wages had been 

“artificially low” due to “temporary manufacturing shutdowns caused by 

COVID.”

¶4 Employer asked the ICA to base Coburn’s AMW on his 

earnings from February 2020 through January 2021 and set it at $4,691.06. 

Employer argued Coburn’s earnings in 2020 decreased because of 
COBURN v. LARRY H MILLER/WCF

Decision of the Court

3

“business conditions unrelated to the Coronavirus” and attributed 

Coburn’s decreased wages to the expiration of factory warranties for DPS6 

transmissions. At the hearing, Employer explained that the wages for DPS6 

repairs were extremely generous and that the “easy paying work ran out” 

when the warranties on those transmissions expired in February 2020.

Employer testified that the pandemic did not affect the amount of work 

available, that cars were always at the shop waiting and ready to be 

serviced, and that Coburn “could have earned more income had he agreed 

to accept other transmission jobs reasonably available to him.” Employer 

argued Coburn’s pre-COVID wages from 2016–2019 were not 

representative of his wages at the time of injury or of his probable future 

earning capacity.

¶5 After the hearing, the administrative law judge (“ALJ”)

issued its decision setting Coburn’s AMW. The ALJ summarized Coburn’s

and Employer’s arguments and concluded there was “no basis” to accept 

one party’s explanation for Coburn’s reduced wages in 2020 over the 

other’s. The ALJ set Coburn’s AMW at $4,634.18 and found that his 

earnings “in the 365 days between February 11, 2020, through February 9, 

2021 . . . constitute[d] the most reasonable basis upon which to establish his 

average monthly wage.”

¶6 Coburn brought this special action challenging the ALJ’s 

award. This court has jurisdiction under Arizona Revised Statutes 

(“A.R.S.”) Sections 12-120.21(A)(2) and 23-951(A).

DISCUSSION

¶7 Under Arizona’s workers’ compensation scheme, an injured 

worker receives disability benefits based on the worker’s “average monthly 

wage at the time of injury.” A.R.S. § 23-1041(A). An employee’s AMW is 

presumed to be his actual wages in the 30 days immediately preceding his

injury, but the ALJ has discretion to consider an employee’s wages over an 

expanded period “when the presumptive wage base does not realistically 

reflect [the employee’s] earning capacity.” Elco Veterinary Supply v. Indus. 

Comm'n, 137 Ariz. 46, 47–48 (App. 1983). The employee bears the burden 

of proving his AMW. Zapien v. Indus. Comm’n, 12 Ariz. App. 334, 336 (1970). 

Here, the parties agree that the presumptive AMW did not accurately 

reflect Coburn’s earning capacity, and both parties asked the ALJ to use an 

expanded wage base. 

¶8 Coburn argues the ALJ abused its discretion by selecting

February 2020 through February 2021 as the expanded wage base because 
COBURN v. LARRY H MILLER/WCF

Decision of the Court

4

during that time COVID-19 “indisputably” caused his earnings to 

temporarily decrease. We disagree. Generally, an expanded wage base 

should not include periods when an employee is unable to work due to 

factors outside the employee’s control. See Pettis v. Indus. Comm’n, 91 Ariz. 

298, 303 (1962) (holding that inclusion in base wage of two months during 

which employee was prevented from working by employer shutdown was 

improper). But here, Coburn was continuously employed for over 25 years,

and Employer consistently disputed Coburn’s argument that COVID-19

shutdowns caused his wages to decrease in 2020. Although the parties gave 

conflicting explanations for Coburn’s decreased earnings in 2020, the ALJ 

is responsible for resolving all conflicts in the evidence and “this court will 

not disturb the ALJ’s conclusion unless it is wholly unreasonable.” See 

Henderson-Jones v. Indus. Comm’n, 233 Ariz. 188, 191–92, ¶ 9 (App. 2013). 

We cannot say the ALJ’s decision to base Coburn’s AMW on wages earned 

over the twelve months immediately preceding his injury was “wholly 

unreasonable” because it was supported by evidence in the record.

CONCLUSION

¶9 We affirm.