Cantrell v. kroger/kroger

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JEFFREY CANTRELL, Petitioner Employee,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

KROGER DBA FRY’S FOODS STORES OF ARIZONA, Respondent
Employer,

KROGER CO, Respondent Carrier.

No. 1 CA- IC 24-0060
FILED 09-25-2025

Special Action - Industrial Commission
ICA Claim No. 20222210544
Carrier Claim No. 4A2207TFTRF-0001
The Honorable Kevin B. Berkowitz, Administrative Law Judge

AFFIRMED

COUNSEL

Taylor & Associates PLLC, Phoenix
By Thomas C. Whitley, Nicholas C. Whitley
Counsel for Petitioner Employee

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent
Ritsema Law, Phoenix
By Kelly F. Kruegel
Counsel for Respondent Employer and Carrier

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Veronika Fabian joined.

F O S T E R, Judge:

¶1 Petitioner Jeffrey Cantrell challenges the Industrial
Commission of Arizona’s (“Commission”) calculation of his average
monthly wage (“AMW”) after he sustained an injury while working. The
Commission based its calculation of Cantrell’s AMW on his actual wage at
the time he was injured. Cantrell argues that the Commission should have
used a different wage. This Court affirms the Commission’s award.

FACTS AND PROCEDURAL HISTORY

¶2 Cantrell worked for Respondent Kroger as a cashier at a Fry’s
grocery store (“Fry’s”). In July 2022, Cantrell sustained a work injury that
affected his neck, right shoulder and right wrist. Fry’s accepted Cantrell’s
workers’ compensation claim, and he received medical care. Following an
evidentiary hearing, the Commission found Cantrell’s neck, shoulder and
wrist injuries were medically stationary and had resulted in a permanent
partial impairment.

¶3 The Commission set Cantrell’s AMW for the injuries at
$2,679.65. The Commission derived this AMW from Cantrell’s actual wages
earned during the six months before the injury and averaged them to a
monthly amount. Cantrell disagreed with this amount and argued that his
AMW should be $3,745.73, an amount based on the salary he earned in 2017
when he suffered a previous workplace injury while working in a different
position at Fry’s.

¶4 At the time of the 2017 injury, Cantrell was employed as an
assistant manager. Cantrell contended that his workers’ compensation
claim for the 2017 injury remained open in 2022 and resulted in the
modification of his position from assistant manager to cashier. He argued
that the AMW for the 2022 claim should relate back to the 2017 AMW.

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Cantrell contended that despite currently working as a full-time cashier, he
“had no control over the wages he earned during his second injury as he
was continuing his employment with [Fry’s] during his recovery[.]”
Therefore, “his wages at the time of his second injury [were] not truly
reflective of his earning capacity.”

¶5 The AMW calculation was referred for an evidentiary hearing
with an Administrative Law Judge (“ALJ”). At that hearing, Cantrell
testified about his work and wage history with Fry’s including his time as
an assistant manager. Cantrell also testified he tried, unsuccessfully, to
obtain other positions within Fry’s that met his work restrictions. Cantrell
urged the ALJ to disregard the entire period he worked as a cashier because
his prior injury limited his earning capacity. The ALJ rejected Cantrell’s
argument and issued an award affirming the lower AMW award.

¶6 Cantrell sought reconsideration, and the ALJ affirmed the
award. Cantrell then filed this statutory special action. This Court has
jurisdiction under A.R.S. §§ 12-120.21(A)(2) and 23-951(A).

DISCUSSION

¶7 This Court reviews a workers’ compensation award for the
lawfulness of the award. A.R.S. § 23-951(A). This Court will “uphold an
ALJ’s factual findings if they are reasonably supported by the
evidence.” Munoz v. Indus. Comm’n, 234 Ariz. 145, 148, ¶ 9 (App. 2014). But
questions of law are reviewed de novo. See Young v. Indus. Comm’n, 204 Ariz.
267, 270, ¶ 14 (App. 2003). The burden of establishing the AMW falls on the
injured worker. Zapien v. Indus. Comm’n, 12 Ariz. App. 334, 336 (1970).

¶8 The Commission determines a worker’s disability benefits by
using the worker’s AMW “at the time of injury.” A.R.S. § 23-1041(A). The
AMW is “the average wage paid during and over the month in which the
employee [was] . . . injured.” A.R.S. § 23-1041(G). This statute creates a
presumptive 30-day wage period for determining the AMW. Elco Veterinary
Supply v. Indus. Comm’n, 137 Ariz. 46, 47–48 (App. 1983) (“[W]ages earned
during the 30 days preceding the injury are the presumptive average
monthly wage.”).

¶9 However, when the evidence shows that the presumptive
wage base does not realistically reflect the injured worker’s earning
capacity, the ALJ has broad discretion to use a wage base greater than one
month—an expanded wage base. Morse v. Indus. Comm’n, 213 Ariz. 575, 577,
¶ 8 (App. 2006). Seasonal employment, intermittent employment “or
unrepresentative wages during the month before the injury” may justify an

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expanded wage base. Id. Additionally, the Supreme Court has recognized
that an expanded wage base should not include periods when a worker is
unable to work due to factors outside the worker’s control. Pettis v. Indus.
Comm’n, 91 Ariz. 298, 303 (1962). Therefore, time off due to layoffs,
voluntary removal from the labor market or time taken off by personal
choice are not subtracted. See id. Use of an expanded base must be based on
evidence that shows the earnings during the 30 days preceding injury do
not truly reflect the AMW. Davis v. Indus. Comm’n, 134 Ariz. 293, 296 (App.
1982). But an “ALJ has discretion to choose the appropriate formula for
calculating the average monthly wage” from “numbers easily obtained,”
without “extrapolat[ing] or speculat[ing] about unearned
wages.” Morse, 213 Ariz. at 577, ¶ 9 (quoting Lowry v. Indus. Comm’n, 195
Ariz. 398, 401, ¶¶ 10–12 (1999)). Here, the Commission did not use the
presumptive wage base for Cantrell’s 2022 AMW. Instead, the Commission
used an expanded base derived from actual wages Cantrell earned in the
six months before the 2022 injury.

¶10 Cantrell maintains his 2017 AMW should be his 2022 AMW
because his 2022 wages were reduced through no fault of his own. Cantrell
cites Pettis to support his argument. But this Court distinguishes between
factors outside an employee’s control, like the employer shutdown in Pettis,
91 Ariz. at 298, 303, and factors that are within the employee’s control, Miller
v. Indus. Comm’n, 113 Ariz. 52, 54 (1976) (“The test is whether the
employment not the worker is intermittent or erratic.”). Cantrell testified
that with his 37 years in the grocery industry there were “many other things
that [he] could have done” besides cashiering. The ALJ found that this
testimony supported the premise that Cantrell could have sought
alternative employment to accommodate his restrictions. Unlike the
employee in Pettis, Cantrell controlled the circumstances of his
employment. Since Cantrell voluntarily stayed in the cashier role, sufficient
evidence supports the ALJ’s findings that the AMW calculation was
appropriate.

¶11 Cantrell also cites Swift Transp. v. Indus. Comm’n, 189 Ariz. 10
(App. 1996), to justify his wage calculation. There, a truck driver spent
several months in probationary training at a reduced wage, then suffered a
workplace injury one week into regular employment. Id. at 10. The
Commission excluded the probationary period and used only one week of
regular employment wages to calculate the AMW. Id. at 11. This Court held
that upon completion of the training, the driver took a new position that
controlled the AMW calculation. Id. at 12. Swift does not help Cantrell.
Rather, it supports the Commission’s rejection of the 2017 AMW because
Cantrell held the cashier role for five years after transitioning to the

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position. Reasonable evidence supports the use of the cashier wage rather
than the manager wage. This Court discerns no abuse of discretion in the
Commission’s finding that Cantrell failed to meet his burden to establish a
different AMW.

CONCLUSION

¶12 This Court affirms the award.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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