Opinion
W.C. No. 4-370-786
July 31, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) which determined average weekly wage (AWW) for purposes of calculating medical impairment benefits. We affirm.
The claimant suffered admitted injuries on January 9, 1998, while employed as a part- time delivery driver at Pizza Hut. At the time of the injury the claimant's AWW was $110.03 a week. The claimant was also attending nursing school. As part of his training the claimant obtained full-time employment at the Swedish Hospital. Soon thereafter, the claimant quit his job at Pizza Hut. In October 1998, the claimant was placed at maximum medical improvement (MMI) with 21 percent whole person impairment. At the time of MMI the claimant's AWW at Swedish Hospital was $458.03 per week.
The respondents filed a Final Admission of Liability for the payment of medical impairment benefits calculated at the rate of $110.03 per week. The claimant objected and requested benefits calculated at the rate of $458.03 per week.
Exercising his discretion authority under § 8-42-102(3), C.R.S. 1999, the ALJ determined that calculating the claimant's medical impairment benefits based on his AWW at Pizza Hut would "significantly understate the impact of the Claimant's injury on his future loss of earning capacity." Therefore, the ALJ ordered the respondents to pay medical impairment benefits based upon the claimant's AWW at Swedish Hospital at the time of MMI. The respondents timely appealed.
On appeal, the respondents contend the ALJ erred as a matter of fact in calculating AWW based on the claimant's higher, post-injury earnings at Swedish Hospital instead of his lower earnings at Pizza Hut. In support, the respondents assert that the claimant suffered no temporary disability, the claimant has no permanent medical restrictions, the claimant was not concurrently employed at the time of MMI, and the claimant voluntarily quit his job at Pizza Hut. We perceive no reversible error.
Section 8-42-107(8)(d), C.R.S. 1999, requires that medical impairment benefits be calculated at the "temporary total disability rate specified in § 8-42-105." Insofar as pertinent § 8-42-105(1), C.R.S. 1999, provides that a claimant's temporary disability rate is sixty-six and two-thirds percent of the claimant's AWW. AWW is generally determined from the claimant's earnings at the time of the injury, and the objective is "to arrive at a fair approximation of the claimant's wage loss and diminished earning capacity." Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). However, if "for any reason," this general method will not render a fair computation of wages, § 8-42-102(3) affords the ALJ wide discretion to calculate AWW using an alternative method. Campbell v. IBM Corp., supra.
In Campbell v. IBM Corp., supra, the claimant experienced two periods of temporary disability. The claimant's earnings at the time of the second disability were higher than at the time of the injury. Under these circumstances, the court upheld an ALJ's determination that it would be manifestly unjust to calculate AWW for the second period of disability based on the claimant's lower earnings at the time of the injury. See also Fisher v. Mica Enterprises, W.C. No. 3-709-842 (August 1, 1995), aff'd., Mica Enterprises v. Industrial Claim Appeals Office (Colo.App. No. 95CA1418, May 2, 1996) (not selected for publication) (upon reopening a claim several years after injury, no abuse in the calculation of AWW based on higher wages with subsequent employer).
The claimant recognizes that we may not interfere with the ALJ's exercise of discretion in the absence of a clear abuse. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo.App. 1993). The standard on review of an alleged abuse of discretion is whether the ALJ's order "exceeds the bounds of reason,"such as where it is not supported by substantial evidence or is contrary to law. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985) ; Coates Reid Waldron v. Vigil, supra. Under the substantial evidence standard we must defer to the ALJ's assessment of the sufficiency and probative weight of the evidence and plausible inferences drawn from the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Insofar as the evidence is subject to conflicting inferences, it is the ALJ's sole prerogative to determine the inference to be drawn. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
Notwithstanding the respondents' arguments, this case does not involve "concurrent" employment. Rather, the ALJ determined that the claimant's later earnings at Swedish Hospital were a better measure of his earning potential than the claimant's part-time wages at the time of the injury.
In any case, the existence of concurrent employment is not a prerequisite to the ALJ's exercise of discretion under § 8-42-102(3). Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996). Moreover, the calculation of AWW for purposes of computing a medical impairment award is not dependent on whether the claimant received any temporary disability benefits. Broadmoor Hotel v. Industrial Claim Appeals Office, supra. In Broadmoor the issue was whether the claimant's concurrent earnings may be included in the AWW for purposes of medical impairment benefits where no temporary disability benefits were awarded. The court held that whether the claimant returned to work for the same employer before MMI was immaterial to the calculation of the claimant's temporary total disability rate. Thus, the undisputed fact that this claimant suffered no lost time from work as a result of the industrial injury did not preclude the ALJ from calculating AWW based on the claimant's higher, post-injury earnings at Swedish Hospital.
We also disagree with the respondents contention that the claimant had no permanent medical restrictions. Admittedly, the record contains evidence that the claimant's pre- employment physical at Swedish Hospital resulted in a full-release to work. However, in October 1998, Dr. Healey imposed permanent restrictions which prohibited the claimant from lifting or carrying over 30 pounds, pushing or pulling over 50 pounds, bending at the waist more than 2-3 times an hour, and repetitive lifting or reaching above the chest or overhead with the right arm. ( See Dr. Healey November 4, 1998 October 30, 1998). The ALJ resolved the conflict in favor of the opinions of Dr. Healey, and we may not interfere with that determination. See Finding of Fact 6; see also Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (ALJ sole arbiter of conflicting expert testimony).
Furthermore, both Dr. Healey and Dr. Zimmer opined that the claimant suffered permanent medical impairment to the spine, and suffered a loss of range of motion in the spine and right shoulder as a result of the industrial injury. Thus, the opinions of Dr. Healey and Dr. Zimmer contain substantial evidence that the claimant suffered a permanent alteration of his medical condition which may restrict his physical activities.
Similarly, evidence the claimant was physically capable of performing his employment duties at Pizza Hut at the time he quit does not compel a contrary result. This is true because medical impairment benefits are intended to compensate for the loss of a claimant's future earning capacity not an actual loss of wage. Broadmoor Hotel v. Industrial Claim Appeals Office, supra; Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996).
Here, the claimant was working part-time at Pizza Hut when he was injured, but he was also attending nursing school with intent to pursue a professional career in the field of medicine. The claimant's educational efforts allowed him to secure a significantly higher paying position at Swedish Hospital shortly after the injury. Consequently, he voluntarily quit the lower paying job at Pizza Hut. Under these circumstances, the ALJ could, and did, reasonably infer that the claimant's AWW at Pizza Hut understated his earning potential. Further, evidence the claimant received raises at Swedish Hospital further supports the ALJ's determination that it would be manifestly unjust to compensate the claimant's permanent loss of earning capacity based on part-time wages he earned while attending school. Therefore, we cannot say that the ALJ's order for the payment of medical impairment benefits calculated at the rate of $458.03 exceeds the bounds of reason.
Nevertheless, the respondents contend the record fails to support the ALJ's finding that the claimant's permanent physical restrictions from the industrial injury "diminish [the claimant's] future earning capacity." The respondents contend that the claimant's stated concern that the industrial injury might impair his future earnings is speculative.
Assuming, arguendo, that the disputed finding is not supported by substantial evidence, the error is harmless. The ALJ did not calculate AWW based on any estimated future earnings in excess of the claimant's wage at the time of MMI. Furthermore, for purposes of calculating benefits under § 8-42-107(8)(d), the ALJ was not required to determine whether the claimant is capable of earning more than $458.03 per week. Therefore, the ALJ's error, if any, does not afford us grounds to disturb the ALJ's order. Section 8-43-310 C.R.S. 1999; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ's order dated January 27, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 1999. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 31, 2000 to the following parties:
John M. Corum, 6864 S. Ivy Way, #304, Englewood, CO 80112
Brenda Foster, Pizza Hut, 8000 E. Quincy Ave., Denver, CO 80237
Kathleen M. Bebee, Gallagher Bassett Services, Inc., 7935 E. Prentice Ave., #305, Englewood, CO 80111
Erica West, Esq., 837 E. 17th Ave., #102, Denver, CO 80218 (For Claimant)
John H. Sandberg, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: A. Pendroy