Arizona Court of Appeals Division One holds that employment is not “seasonal” if the employee is willing to work but the failure to work is attributable to the employer’s decisions.

A dancer at Ballet Arizona injured his shoulder while lifting another dancer.  The dancer filed a worker’s compensation claim.  In general, an injured worker is entitled to workers’ compensation benefits based on the worker’s earnings for the preceding 30 days.  If a worker has seasonal earnings due to weather, climate, or other seasonal causes, then the benefit calculation may be based on earnings over an extended period. 

The Industrial Commission of Arizona based the dancer’s benefits at an average monthly wage based on his earnings 30 days before the injury.  At the request of Ballet Arizona, an Administrative Law Judge treated him as a seasonal employee and reduced the average monthly wage figure by dividing the dancer’s annual earnings by 12 months.  The dancer appealed.

The Court of Appeals overturned the Administrative Law Judge’s ruling, explaining that “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.”  An employee, the Court explained, is not a seasonal worker if the employee is willing to work and his failure to work is attributable to the employer’s decision.  The Court of Appeals found that the dancer was not a seasonal employee because (i) the duration of the work was determined exclusively by Ballet Arizona (i.e., not by the employee’s preferences or by climate-related restrictions), and (ii) the employer and insurer presented no evidence that a ballet dancer could not find work during the summer months. 

The Court also rejected the dancer’s argument that his wage should be determined under A.R.S. § 23-1041(C)—multiplying his weekly wage by the number of weeks in a month—rather than simply determining the amount of money he earned 30 days before his injury under § 1041(A).  The Court explained that § 23-1041(C) does not apply because Wozniak was not guaranteed a specific wage under the terms of his contract, since Ballet Arizona could add or subtract a certain number of weeks from his contract depending on the ballet’s performance schedule. 

Judge Brown authored the Opinion; Presiding Judge Swann and Judge Jones concurred.