Opinion
W.C. No. 4-399-293.
June 22, 2007.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Stuber (ALJ) dated February 21, 2007, that determined the claimant's average weekly wage and the claimant's temporary total disability rate, after allowing for an offset for amounts received for Social Security disability benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant suffered an admitted occupational disease with a date of onset of either July 1, 1998 or September 24, 1998. The claimant and her husband became foster parents in July 1995 and in January 1996 received placement of a second foster child. The claimant and her husband were paid by Fremont County for caring for the foster children. On July 7, 2004 the claimant was awarded Social Security Disability benefits (SSDI) retroactive to July of 2000 and the claimant eventually received lump sums in payment for these benefits. The claimant was eligible for Medicare and the Social Security Administration deducted a monthly premium from the claimant's SSDI benefits. The respondents filed an Application for Hearing on the issues of average weekly wage and overpayment. The insurer had included the claimant's COBRA amount of $142.06 per week in the claimant's average weekly wage but sought to reduce that to the premium for the claimant's Medicare coverage cost of $20.42 per week. The insurer also alleged that it had overpaid the claimant's temporary total disability benefits due to her subsequent receipt of SSDI benefits.
The ALJ determined that the insurer correctly admitted for the COBRA amount of the cost of health insurance, but that once the claimant converted to Medicare, the lesser amount of that Medicare premium was properly included in her average weekly wage. The ALJ also found that the claimant's temporary total disability rate, after the SSDI offset, should be $249.39 and also allowed the insurer to deduct an additional $101.29 per week until the insurer had recovered its overpayment of $16.174.44
I.
On appeal the claimant first contends that the ALJ improperly calculated the offset based upon the claimant's receipt of SSDI benefits, by failing to consider the rounding procedures of the Social Security Administration to the nearest dollar in payment of benefits.
At the time of the hearing the claimant did not disagree with the figure of $101.62 per week as the amount of the offset, as proposed by the respondent. Furthermore, the claimant did not mention the rounding procedures employed by the Social Security Administration. Tr. at 23. In her the post-hearing position statement the claimant again made no mention of the rounding procedures.
We agree with the respondents that the argument was not raised by the claimant before the ALJ. Therefore, we shall not consider the argument for the first time on appeal. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
II.
The claimant next contends that the ALJ incorrectly determined the amount of the current monthly premium for claimant's Medicare coverage based upon the evidence presented at hearing. The claimant further argues that utilizing the improper calculation for the claimant's Medicare premium, and again failing to properly consider the rounding down by the Social Security Administration, the ALJ miscalculated the average weekly wage and other figures contained within the order. Again, because that contention was not raised at the hearing, we reject the claimant's argument based on the rounding procedures of the Social Security Administration.
On the issue of Medicare coverage the claimant correctly points out that the ALJ's original order found the monthly premium for the claimant's Medicare coverage was $80.50. The respondents filed a motion for a corrected order asserting that the correct figure for cost of Medicare coverage was $88.50 and that the average weekly wage and the temporary total disability rate should be correspondingly increased to the advantage of the claimant. The $88.50 figure is supported by the record. Exhibit K at 55. The ALJ denied the respondent's motion but subsequently in the supplemental order the ALJ made changes to reflect the correct figure of $88.50, and correspondingly he increased the claimant's average weekly wage. Findings of Fact at 5, ¶ 19. The ALJ then also increased the temporary total disability rate in the supplemental order. Conclusions of Law at 6, ¶ 1.
The claimant correctly asserts that the ALJ failed to change the amount of the monthly premium for the claimant's Medicare coverage from $80.50 to $88.50 in one section of the supplemental order. Findings of Fact at 4, ¶ 14. However, the ALJ noted the correct amount of the Medicare premium in the essential part of the supplemental order, and the benefits owed to the claimant were increased based upon that correct amount. In our view, the ALJ's failure to change the amount of the Medicare premium in one section of a lengthy supplemental order was the result of inadvertence. In any event the irregularity has not damaged the claimant, since the average weekly wage was increased and that was the essential component of the other calculations. In our opinion any error in this respect was harmless and should be disregarded. Section 8-43-310, C.R.S. 2006.
The claimant also contends that because of the misstatements of the amount of the Medicare premium, certain other calculations in the "original order" were rendered "incongruent." However, the claimant has not explained with any specificity the exact nature of the "incongruities" of which she complains. We note that the ALJ only reduced the average weekly wage as a result of the change from the COBRA amount to the lower Medicare coverage effective October 25, 2006, the date of the original order. Therefore, any of the ALJ's calculations concerning periods occurring before October 25, 2006, were unaffected by the correction of the cost of Medicare coverage from $80.50 to $88.50. We also note that in the claimant's brief in support of the petition to review she had argued that the increase in Medicare premium to $88.50 should result in an increase in the average weekly wage of $20.38. The ALJ in his supplemental order increased the average weekly wage by $20.42 slightly more than argued for by the claimant. At any rate it is the supplemental order that is before us for review, not the "original" order, and the claimant has not shown any errors in the ALJ's calculations of claimant's benefits related to the change in the Medicare premium in the supplemental order. Therefore, we conclude the claimant has failed to establish grounds to disturb the ALJ's order regarding the Medicare premium.
III.
The claimant next contends the ALJ improperly allowed the respondents to withdraw undisputed portions of the admission of liability relating to payment of COBRA benefits, without appropriate findings as to the "procedural requirements" to permit such a withdrawal. Specifically, the claimant's attorney at the hearing objected to litigation of the respondents' average weekly wage issue on the ground that the respondents had not "filed a Petition to Modify, Terminate, or Suspend." Tr. at 11. In her brief in support of the petition to review, she now asserts as error that no "petition to reopen" was filed. However, we perceive no reversible error in this respect.
First, it appears from the record that no petition to reopen was required, because neither the issue of average weekly wage nor the claim itself was closed. Our review of the record discloses that the respondents were paying temporary total disability benefits pursuant to a general admission, and that no final admission had been filed. General admissions of liability are not determinative of the respondents' ultimate liability; rather, it is the benefits described in the final admission of liability that determine the respondents' ultimate liability. See § 8-43-203(2)(b)(II), C.R.S. 2006. Therefore, it was unnecessary for the respondents to file a petition to reopen prior to asserting that the average weekly wage should be modified.
Second, in our view, the respondents were not required to file a Petition to Suspend, Modify, or Terminate benefits as a procedural prerequisite to the adjudication by an ALJ of the average weekly wage issue. Workers' Compensation Rule 6-4 sets forth a procedure by which a respondent may file a petition to modify benefits unilaterally if no objection is filed by the claimant. However, Rule 6 also contemplates that the issue of modification of benefits may be adjudicated by an ALJ as an alternative to compliance with the procedures set forth in the rule. See Rule 6-8 (benefits may only be modified based upon the rule, an order from the Director, or "an order of the Office of Administrative Courts following a hearing") The rule expressly states that the respondents may seek to modify benefits through a petition; however it does not require such a petition as a prerequisite to submitting the matter for resolution to an ALJ. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337, 1340 (Colo.App. 1997) citing HLJ Management Group v. Kim 804 P.2d 250 (Colo.App. 1990) (in the absence of a petition to modify the employer may not unilaterally modify benefits, "until it was ordered to do so by an ALJ after a hearing").
Nor do we perceive any error in the ALJ's modification of the average weekly wage. The ALJ found that the insurer had correctly admitted for the COBRA amount of the claimant's health insurance cost, even though the claimant did not continue the employer's coverage under COBRA. Industrial Claim Appeals Office v. Ray, 145 P.3d 661 (Colo. 2006). However, because the claimant then converted to coverage under Medicare the ALJ allowed the insurer to include the lesser amount of that Medicare premium in her average weekly wage. In our view Schelly v. Industrial Claim Appeals Office, 961 P.2d 547 (Colo.App. 1997) is dispositive of this issue. In Schelly the court of appeals expressly approved of this exact adjustment to the average weekly wage.
IV.
The claimant also contends the ALJ abused his discretion in failing to include the claimant's foster parent concurrent income in calculation of the claimant's average weekly wage.
The ALJ found with record support that in 1995 the claimant and her husband became foster parents for one teenager and received a standard payment of $600 per month. The ALJ also found that foster care payments are not treated as taxable income for federal income tax purposes. In 1996 the claimant and her husband received placement of a second foster child and again were paid the standard $600, which was later increased in 1997 to $1,200 due to the special needs of the second foster child. The claimant continued to provide all of the required care for the second foster child after her 1998 work injury. The second foster child emancipated from the placement in 1999. After the second foster child was emancipated, the claimant and her husband did not accept any more foster children. The claimant was contacted on several occasions about placing younger children, but the claimant indicated that she was unable to care for them due to her medical condition and due to the presence of her narcotic medications in the household. The claimant was not disabled from continuing her foster parent care of the second child after her injury but she was disabled from accepting other small child placements. However, the time and duration of those placements was unknown and the ALJ concluded that the claimant's average weekly wage did not include any monthly stipends for foster care.
As we read the ALJ's order he concluded that the claimant failed to prove that there was a causal connection between the industrial disability and any identifiable loss of wages connected with foster parent care. To prove entitlement to TTD the claimant must prove the industrial injury caused a "disability."§ 8-42-103(1), C.R.S. 2006; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term "disability," as used in workers' compensation cases, connotes two elements. The first is "medical incapacity" evidenced by loss or impairment of bodily function. The second is temporary loss of wage earning capacity, which is evidenced by the claimant's inability to perform his or her prior regular employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). This element of "disability" may be evidenced by showing a complete inability to work, or by physical restrictions which impair the claimant's ability effectively to perform the duties of his or her regular job. See Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998).
Whether the claimant has proved disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). We must uphold the ALJ's determination if it is supported by substantial evidence. § 8-43-301(8), C.R.S. 2006. This standard of review requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here the ALJ found that the claimant was not disabled from continuing her foster parent care for the second child after her injury but although she was disabled from accepting other small child placement the time and duration of those placements were unknown. Thus the claimant failed to prove entitlement to temporary disability benefits. We perceive no basis on which to interfere with the ALJ's finding that the claimant's average weekly wage does not include any monthly stipends for foster care.
Moreover, insofar as the claimant is arguing that the ALJ abused his discretion in failing to include her foster care income in her average weekly wage, we disagree that there was an abuse of discretion. Section 8-42-102(3), C.R.S. 2006, gives the ALJ discretion to compute the average weekly wage in any manner which will fairly determine the claimant's wage under the circumstances. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). This discretionary authority permits the ALJ to calculate the average weekly wage based on earnings from concurrent employments which the claimant held at the time of the injury. St. Mary's Church Mission v. Industrial Commission, 735 P.2d 902 (Colo.App. 1986). This is true because, when an injury "impairs a claimant's ability to earn from concurrent employments, it may be `fair' to include all such wages in the computation of the average weekly wage." Jefferson County Public Schools v. Dragoo, 765 P.2d 636, 637 (Colo.App. 1988). However, there is no ipso facto rule requiring the ALJ to include wages from concurrent employments. Id. at 638; Sanchez v. Pueblo Medical Investors, W.C. No. 3-942-960 (December 14, 1998) (respondents have no statutory duty to admit liability for an average weekly wage based on earnings from concurrent employments in order to avoid penalties). Because the ALJ's decision to include wages from concurrent employments is discretionary, we may not interfere with the order unless an abuse of discretion has been shown. An abuse of discretion does not exist unless the ALJ's order is beyond the bounds of reason, as where it is not supported by the evidence or is contrary to law. Coates, Reid Waldron v. Vigil, supra.
Even assuming the correctness of the claimant's assertion that her payment for caring for foster children was "concurrent employment," we nonetheless perceive no abuse of discretion in the ALJ's refusal to include those payments in the average weekly wage. As noted, the ALJ concluded that the claimant was not disabled from engaging in that activity. Because the purpose of the average weekly wage is to fairly compensate for loss of earnings, it would be anomalous to require the ALJ to include wages from a concurrent employment when the claimant remains capable of earning wages in the job. In St. Mary's Church Mission v. Industrial Commission, supra, and Jefferson County Public Schools v. Dragoo, supra, the injuries rendered the claimants unable to perform the concurrent employments. In contrast, the claimant in this case has not been disabled from performing the "concurrent employment" of caring for foster children. See Washburn v. Academy School District No. 20, W.C. No. 4-491-308 (September 16, 2002) (ALJ did not abuse his discretion in refusing to include in the average weekly wage $9000 per month reimbursed to claimant for caring for foster children).
V.
We also reject the claimant's general contention that the ALJ committed reversible error because the order results in unjust enrichment of the respondents' and constitutes a violation of the claimant's constitutional rights. The claimant has failed to identify any specific constitutional prohibition. Further a workers' compensation proceeding is purely statutory. Indus. Comm'n v. Carpenter, 102 Colo. 22, 76 P.2d 418 (1938). The powers and authority of the ALJ, and ours, are expressly conferred by statute . Indus. Comm'n v. Plains Util. Co., 127 Colo. 506, 259 P.2d 282 (1953). See also Johnson v. Indus. Comm'n, 761 P.2d 1140 (Colo. 1988) (equitable doctrine of estoppel cannot be used to circumscribe right afforded by workers' compensation statute); See Rocky Mountain Cardiology v. Industrial Claim Appeals Office of State, 94 P.3d 1182, (Colo.App. 2004). Accordingly, the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
In addition the claimant's arguments on unjust enrichment appear to have been raised for the first time on appeal. Therefore, the claimant having failed to raise this argument before the ALJ it has not been preserved for our review. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ's order dated February 21, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________ Curt Kriksciun
_________________ Thomas Schrant
Theresa Contreras, Amsterdam Drive Colorado Springs, CO, CHIMR c/o Penrose St. Francis Hospital Risk Management, Colorado Springs, CO, Preferred Professional Insurance Co. c/o CHI/AIMS Heather Petrie, Erlanger, KY, Steven U. Mullens, P.C. Pattie J. Ragland, Esq. 105 E. Moreno Ave, Colorado Springs, CO, (For Claimant).
Ritsema Lyon, P.C. T. Paul Krueger, Esq. 111 South Tejon Street, Springs, CO, (For Respondents).