dissenting.
While I agree with the majority on the jurisdictional and medical proof issues, I disagree with them on the double recovery issue. The majority in essence holds, under the facts here, that claimant’s earned sick leave should not be considered as “wages,” pursuant to A.R.S. §§ 23-1041, 23-1044, and that claimant is entitled to receive his sick pay (which equals his regular pay) plus 82.5 hours of compensation from the petitioners (double recovery). I disagree.
In considering what constitutes “wages” for workers’ compensation purposes, consideration must first be given to the general policy underlying our workers’ compensation laws. The purpose of industrial compensation is to compensate an employee for lost earning capacity, Maness v. Industrial Commission, 102 Ariz. 557, 434 P.2d 643 (1967); Whyte v. Industrial Commission, 71 Ariz. 338, 227 P.2d 230 (1951); the intention is not to make the employee whole for the loss, but to prevent him and his dependents from becoming public charges during a period of disability and to take care of the major portion of the financial loss during such a period. See Powell v. Industrial Commission, 104 Ariz. 257, 451 P.2d 37 (1969); Inspiration Consolidated Copper Co. v. Smith, 78 Ariz. 355, 280 P.2d 273 (1955).
The carrier argues that claimant sustained no loss in earning capacity because he received sick leave pay while absent from work. Under our Workers’ Compensation Act the degree of temporary partial disability is calculated by comparing “wages earned before the injury” with the “wages which the injured person is able to earn thereafter.” A.R.S. § 23-1044(A). Thus, actual earnings before the injury are compared with earning capacity after the injury.1 It is apparent that actual earnings is not the same as earning capacity. While actual injury earnings will create a presumption of commensurate earning capacity, the presumption may be overcome by evidence showing that the actual earnings do not fairly reflect claimant’s earning capacity. Continental Casualty Company v. Industrial Commission, 21 Ariz.App. 561, 521 P.2d 1019 (1974). In the instant case, the administrative law judge found:
2. Following the industrial injury the applicant lost no time from work on the day of the injury but within the first week .missed four and one-half days. The applicant was not disabled from work at any time following May 4, 1981, but took time off from work for medical treatment on many occasions. These absences from work for all purposes add up to ten and a half days.
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4. The applicant received sick leave pay for the hours lost from work after his disability ended but while he was receiving treatment for his injury.
There is no other finding either in the award or the supplemental award that overcomes the Continental Casualty Co. presumption. Thus, we must consider the question whether sick leave pay constitutes wages under the facts here. The Workers’ Compensation Act does not define “wages” as used in A.R.S. § 23-1041, et seq., which deals with the amount of compensation *22payable to a claimant under the act. However, case law has filled the void. In Moorehead v. Industrial Commission, 17 Ariz.App. 96, 495 P.2d 866 (1972) (where the question was whether the employee’s travel allowance should be included within the average monthly wage determination), this court, after considering Matlock v. Industrial Commission, 70 Ariz. 25, 215 P.2d 612 (1950) (where average monthly wage was held to include true value of house, utilities, milk, butter, eggs and meat furnished employee by employer) and Pettis v. Industrial Commission, 91 Ariz. 298, 372. P.2d 72 (1962) (where the “saw rental” was properly deducted from the average monthly wage computation because “compensation is based upon the wage under the contract of hire.” 91 Ariz. at 303, 372 P.2d at 76), said:
From the Pettis opinion it is clear that in Arizona not every payment made to the employee by the employer constitutes “wages” for purposes of computing the injured employee’s average monthly wage. There the payment to the employee for the use of his saw was held not to be a part of his “wage under the contract of hire.” On the other hand,' from the Matlock opinion it is clearly evident that payments or benefits conferred upon an employee in return for his labor and services are includable in computing the average monthly wage, even though these payments or benefits do not on their face purport to be “wages”. Although the benefits provided in Matlock were not in the form of money, it is our opinion that the Arizona Supreme Court would have reached the same result had the payments been in the form of a money reimbursement to Matlock for sums expended by him for such purposes. From the foregoing, it might be argued that the transportation allowance in this case should be considered the same as the extra benefits provided to the employee in Matlock, and thus should constitute a part of his “wages” for average monthly wage computation purposes. We do not think so. An important distinction must be recognized to exist between the “room and board” benefits provided in Matlock and the travel expense allowance provided in this case. In Matlock the extra benefits provided by the employer had the effect of helping Matlock meet his ordinary day-to-day requirements for food and lodging—requirements which would continue substantially unchanged whether Matlock was employed or not. On the other hand, the extra benefits here provided by the employer are directly related to meeting special transportation expenses entailed by reason of petitioner’s employment—expenses which will cease with the cessation of petitioner’s employment. While an unemployed worker must have a roof over his head, and continue eating regardless of whether employed or unemployed, he would no longer be required to expend money for travel to the jobsite if he were no longer employed. We think the principle to be derived from the foregoing is that “wages” do not include amounts paid to the employee to reimburse him for employment-related expenditures of a nature which would not be incurred but for his employment. Such payments are simply not intended as compensation for services rendered. Before any part of such allowances or reimbursements can be considered as a part of the employee’s “wages” there should be some showing that the payments are more than sufficient to reimburse the employee for the work-related expense so that in effect the excess can be considered as extra compensation to the workman for his services performed.
17 Ariz.App. at 99, 495 P.2d at 869.
In Still v. Industrial Commission, 27 Ariz.App. 142, 551 P.2d 591 (1976), we considered whether the determination of the employee’s average monthly wage should include a credit for the amount of money his employer was required to contribute on his behalf to a Union Health, Welfare and Pension fund, and held that it should not be included as wages. Relying on Barron v. Ambort, 64 Ariz. 209, 167 P.2d 925 (1946) we said:
*23Whether the benefits are obtained by virtue of a union agreement, as here, or by the effort of government, as in the case of social security contributions and unemployment insurance contributions, they are clearly obtained by “collective effort” and not by the individual effort of the employee. They are also not paid to the employee by the employer and would not be recoverable in an action at law by him against the employer.
27 Ariz.App. at 145, 551 P.2d at 594.
In Industrial Commission v. Jordan, 9 Ariz.App. 23, 448 P.2d 895 (1968), we held that “tips” received by waitresses are not wages within A.R.S. § 23-1041 because they “are clearly not a form of remuneration subject to negotiation or recoverable in an action at law....” We reached the same conclusion in Springer v. Industrial Commission, 23 Ariz.App. 429, 533 P.2d 1166 (1975). Both of these cases turn on our Supreme Court’s opinion in Barron v. Ambort, supra, which requires that “wages”, as used in A.R.S. § 23-1041(A), include earnings that result from the personal effort of the employee and which would be recoverable by the employee in an action at law against his employer. In Scott v. Industrial Commission, 122 Ariz. 169, 593 P.2d 919 (App.1978), two judges of this court attempt to reverse six judges of this court by overruling Jordan and Springer by holding that “tips” received by a taxi driver constitute wages pursuant to A.R.S. § 23-1041. The rationale was that the tips constituted real economic gain to the drivers. Thus, Scott supports my dissent also.
Our case of Insurance Co. of North America v. Industrial Commission, 116 Ariz. 21, 567 P.2d 337 (App.1977), set aside the award finding the average monthly wage of a corporate employee because the evidence lacked any definite contractual liability on the part of the corporation.
The facts sub judice are that claimant earned his accrued sick leave entitlement as a part of his regular employment; that he had to actually use his sick leave compensation in order to gain any benefit from it, and that he received sick leave compensation in the full amount of his wage, from the same payroll account, during the time he was not drawing his regular wages. In my opinion, under the circumstances, such sick leave compensation must be treated as wages under A.R.S. § 23-1041, et seq., and A.R.S. § 23-1044 in particular. My conclusion is based on the above cited cases. Pettis and Barron, in particular point the way. Here we have a benefit conferred on the claimant as a result of his employment contract with the county. The sick leave compensation was earned by claimant, and if not paid, it was recoverable by an action at law. Barron v. Ambout, supra. Cf. Field v. Industrial Commission, 73 Ariz. 133, 238 P.2d 953 (1951). See also, Powell v. Industrial Commission, 104 Ariz. 257, 451 P.2d 37 (1969).
The carrier correctly notes that the cases relied on by the administrative law judge in his supplemental decision pertain to whether sick leave should be credited against an award. (Pet, Inc. Dairy Division v. Roberson, 329 So.2d 516 (Miss.1976); Robidoux v. Uniroyal, Inc., 116 R.I. 1594, 359 A.2d 45 (1976)). These cases do not pertain to the question of whether sick leave compensation equal to wages constitutes “wages which the injured person is able to earn thereafter.” A.R.S. § 23-1044(A).
Thus, under the facts here the claimant is not entitled to double recovery. I would set the award aside.
. A comparison of actual earnings and earning capacity is also made in determining the degree of permanent disability. A.R.S. § 23-1044(C) & (D).