Scott v. Industrial Commission

WREN, Presiding Judge,

dissenting:

I respectfully dissent. In my opinion Industrial Comm’n v. Jordan is correct in holding that the “definition of ‘wages’ in Ambort and of ‘tips’ in Beaman is analytically sound . . . .” and that “[tips] do not come within the purview of ‘wages’ within the meaning of the Workmen’s Compensation Act.” 9 Ariz.App. at 27, 448 P.2d at 899.

Credence to this position is lent by legislative silence to Jordan and the subsequent reenactment of § 23-1041 without change in 1972 Ariz.Sess.Laws, Ch. 146, § 38 and 1977 Ariz.Sess.Laws, Ch. 151, § 9. It is further to be noted that the majority decision leans heavily on “wage” interpretations from other states; but, as noted by then Chief Judge Haire in Moorehead v. Industrial Comm’n, 17 Ariz.App. 96, 495 P.2d 866 (1972), in speaking to the question of travel expenses and average monthly wage, cases from other jurisdictions are generally not too helpful because of variances in statutory provisions.

I would also note, parenthetically, a point called to my attention by Dearing v. Arizona Department of Economic Security, 121 Ariz. 203, 589 P.2d 446 (1978), that prior to 1947, the Employment Security Act defined “wages” as follows:

(n) ‘Wages’ means all remuneration for services from whatever source including commission and bonuses and the cash value of all remuneration in any medium other than cash. Gratuities customarily received by an individual in the course of his work from persons other than his employing unit shall be treated as wages received from his employing unit. . (Emphasis supplied.)
§ 56-1002(n), A.C.A.1939

All reference to “gratuities” was deleted by the 1947 amendment, and since then the Department of Economic Security has construed the term as excluding tips.

As to the case before us, since no definition of “wage” is given by statute or rule of the Industrial Commission, a Websterian approach is clearly apropos. “Wage” is defined in Webster’s Third International Dictionary 2568 (1969) as:

a pledge or payment of [usually] monetary remuneration by an employer especially for labor or services [usually] according to contract and on an hourly, daily, or piecework basis and often including bonuses, commission and amounts paid by the employer for insurance, pension, hospitalization and other benefits. (Emphasis added.)

In the abstract and as a matter of principle, I would agree that tips should well be considered wages under Workmen’s Compensation Law in many occupations where they constitute a major or even a substantial portion of the recipient’s income for services, but I do not agree that this Court is the proper forum to accomplish that result. To my mind this decision amounts to judicial legislation in an area of major importance under the framework of Workmen’s Compensation Law, a matter better reserved for the resources and capabilities of the Arizona Legislature, after full consideration of actuarial principles of insurance in the collection of premiums and payment of compensation benefits.

I would affirm the award.