ORDER OF REMAND

The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which recalculated the claimant's average weekly wage (AWW) for purposes of awarding permanent partial disability benefits. The respondents contend the ALJ erred as a matter of law, that the findings are inadequate, and that the evidence does not support the order. We set the order aside and remand for entry of a new order.

The record is limited, and the claimant gave no testimony concerning the AWW issue. Based on documentary evidence, the ALJ found the claimant sustained a compensable back injury on August 7, 1998, while earning $10.55 per hour for a forty hour week. Thus, the claimant's admitted AWW was $422.

After the injury, the claimant experienced lengthy periods of temporary total disability and underwent a spinal fusion in November 2000. The claimant reached maximum medical improvement (MMI) on July 24, 2001, and was assigned a 26 percent whole person impairment rating based on specific disorders of the spine and reduced range of motion in the lumbar region.

The ALJ found the claimant returned to work on May 19, 2001, and apparently averaged 36.19 hours per week before reaching MMI on July 24. On July 24 the claimant received a raise to $12.50 per hour. The respondents filed a final admission of liability based on the 26 percent impairment rating, but based the benefits on the admitted AWW of $422. The claimant objected to the admission and argued the AWW should be increased to $452.38 based on the claimant's hours and increased wages on the date of MMI.

The ALJ recalculated the AWW to $452.38 and ordered benefits paid accordingly. Citing Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), the ALJ concluded it would be "most fair to calculate claimant's average weekly wage on the basis of his more current earnings in 2001 as opposed to the lower wages he earned three years previously." The ALJ also cited Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001), for the proposition that an ALJ has discretion to recalculate the AWW for the purpose of determining permanent disability benefits.

On review, the respondents contend the ALJ should have calculated the AWW based on the claimant's earnings at the time of the injury pursuant to § 8-40-201(19)(a), C.R.S. 2001, and § 8-42-102(2), C.R.S. 2001. The respondents also argue that to the extent Pizza Hut v. Industrial Claim Appeals Office, supra, stands for a contrary proposition, that case was wrongly decided. Finally, the respondents assert the ALJ failed to make a finding of fact concerning the unfairness of basing the AWW on the claimant's earnings at the time of the injury, and the evidence does not support the conclusion that use of the earnings at the time of injury would be unfair.

Initially, we reject the respondents' legal argument that an ALJ lacks statutory authority to use the claimant's earnings at the time of MMI when calculating the AWW for purposes of awarding permanent partial disability benefits under § 8-42-107(8)(d), C.R.S. 2001. In Pizza Hut v. Industrial Claim Appeals Office, supra, the court expressly held that § 8-42-102(3), C.R.S. 2001, grants an ALJ discretionary authority to recalculate the AWW for purposes of determining permanent disability benefits if the statutorily "prescribed methods will not fairly calculate the wage in view of the particular circumstances." 18 P.3d at 869.

Although the respondents argue Pizza Hut was wrongly decided, we may not disregard the holding of that case. Rather, published opinions of the Court of Appeals are to be treated as precedent. C.A.R. 35(f).

We next consider the sufficiency of the ALJ's findings. Section 8-42-102(3) allows the ALJ to recalculate the AWW if, for any reason, the prescribed statutory methods will not fairly determine the claimant's AWW. Because the authority is discretionary, we may not interfere with the ALJ's order unless an abuse is shown, as where the order is unsupported by substantial evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, supra.

However, the ALJ must enter specific findings of fact and conclusions of law which are sufficient to indicate the basis of the decision and afford a foundation for appellate review. Section 8-43-301(8), C.R.S. 2001; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Mere conclusory findings are insufficient. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).

Here, we are unable to ascertain the factual basis supporting the ALJ's conclusion that the circumstances of this case render it unfair to base the claimant's AWW on the earnings at the time of the injury. As noted in Pizza Hut v. Industrial Claim Appeals Office, supra, permanent disability benefits compensate for loss of future earning capacity. In Pizza Hut, there was evidence that after the injury the claimant changed careers from a pizza delivery driver to a hospital nurse, and he was earning substantially greater wages at MMI than at the time of the injury. Moreover, the claimant in Pizza Hut was found to have sustained permanent restrictions which, he testified, limited his career options as a nurse.

Here, the ALJ did not find the claimant's career options have been limited by the injury, nor did he find the injury resulted in permanent physical restrictions which have affected the claimant's future earning capacity. Indeed, as we understand the facts, the claimant has returned to his pre-injury job, and we find no evidence of permanent restrictions imposed by any physician. (The record does contain evidence of restrictions imposed by Dr. Jamrich on April 26, 2001, before the claimant reached MMI). In his brief the claimant asserts that if he were to lose his job "it would be difficult to find employment" earning $12.50 per hour. However, the ALJ did not make any such finding, nor is it readily apparent to us on what evidentiary basis such an inference could be drawn.

We find Campbell v. IBM Corp., supra, relied upon by the ALJ, as presenting a significantly different factual situation. In Campbell the claimant was seeking temporary disability benefits for actual wage loss sustained during successive periods of disability. Thus, as the Campbell court found, it would have been manifestly unfair to base the claimant's subsequent temporary disability benefits on the AWW at the time of the injury because that wage was substantially lower than the claimants' earnings during the periods of disability. Here, the claimant is not sustaining an actual temporary wage loss relative to the time of the injury, but is seeking compensation for loss of future earning capacity.

It follows that the matter must be remanded for the entry of a new order concerning the claimant's AWW. If the ALJ, in the exercise of his discretion, determines the wage should be recalculated, he shall make specific findings of fact concerning the reasons for that conclusion, particularly with respect to what circumstances render use of the wage at the time of injury unfair. No additional hearing is authorized by this order, and the new order shall be entered based on the existing record.

IT IS THEREFORE ORDERED that the ALJ's order dated February 21, 2002, is set aside, and the matter is remanded for entry of a new order in accordance with the views expressed herein.

INDUSTRIAL CLAIM APPEALS PANEL

___________________________________ David Cain

___________________________________ Kathy E. Dean

NOTICE

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed August 12, 2002 to the following parties:

Shane Porter, 157 3rd St., Clifton, CO 81520

Wal-Mart Stores, Inc., 2881 North Ave., Grand Junction, CO 81501-5064

Insurance Company of the State of Pennsylvania, c/o Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288

Joanna C. Jensen, Esq., P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)

James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)

By: A. Hurtado