dissenting:
Claimant is an automobile body man who had not made an industrial claim before the one presented in this case. He submitted a workman’s report indicating he was injured on October 27, 1980. The carrier sent to the commission a recommended annual monthly wage calculation of carrier indicating that claimant was employed from July 7 through October 26, 1980, that he had been paid $3,683.50 for those 112 days at the rate of $32.89 per day. The daily wage was multiplied by 30.416, the number of days in an “average month” resulting in an average monthly wage of $1,000.38. The recommendation by the carrier was based on information received from the employer. The recommendation was sent to claimant with a notice of claim status accepting the claim for benefits.
Thereafter the commission sent to claimant a notice of average monthly wage indicating that the “average monthly wage as independently determined by the Industrial Commission” is $1,000.38. The commission is statutorily mandated to make the independent determination. A.R.S. § 23-1061(F). But see Stemkowski v. Industrial Commission, 27 Ariz.App. 457, 556 P.2d 11 (1976), which was decided before the amendment to A.R.S. § 23-947 as set forth in footnote 1, Laws 1980, Ch. 246, § 25. The record does not disclose evidence that there was an independent determination of this figure by the commission. The figure is flat wrong. An independent determination would have disclosed exactly what “subsequent investigation” disclosed in the words of the majority: “Subsequent investigation revealed that the employer had inadvertently omitted the claimant’s last two weeks’ wages from the wage base used to calculate the average monthly wage.”
Although, as the majority points out, “the carrier and the commission had no intention to deceive the claimant,” the claimant has been misled to his prejudice. The claimant stated that although the figure “didn’t look right,” he did nothing. Claimant was unsophisticated in these matters and was not represented by counsel. The notice to claimant which is part of the notice of average monthly wage indicates that “if you do not agree with this notice” a request for hearing must be made within 90 days. Simply because claimant thought the notice “didn’t look right” does not mean that he did not agree with it.
Under the facts of this case, when the commission represented to claimant that it had “independently determined” his average monthly wage at $1,000.38, claimant was entitled to “justifiable reliance” on the representation regarding the determination and the amount which should excuse his late filing. A.R.S. § 23-947(B)(l).
*153I believe that the award should be set aside.