Opinion
W.C. No. 4-557-200.
June 22, 2007.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated February 13, 2007, that ordered the respondents to pay permanent partial disability benefits based upon an average weekly wage of $306.60. We set aside the order and remand for further findings.
A hearing was held on the issues of whether the respondents were liable for permanent partial disability benefits based upon a whole person impairment rating and the claimant's average weekly wage. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On September 29, 2002, the claimant injured her neck and shoulder in a compensable accident and reached maximum medical improvement on September 14, 2006. At the time of the injury the claimant earned $9.50 per hour and the respondents admitted for an average weekly wage of $266. At the time she reached maximum medical improvement her earnings had increased to $10.95 per hour, which was a fifteen percent increase and which would result in an average weekly wage of $306.60. The ALJ also entered factual findings concerning the claimant's impairment, which was rated as 20 percent of the whole person.
Based upon his factual findings the ALJ ordered the respondents to pay permanent partial disability benefits based upon the whole person impairment rating of 20 percent and based upon an average weekly wage of $306.60.
The claimant appealed and argues that the ALJ erroneously ignored a stipulation regarding her average weekly wage. We conclude that the factual findings are inadequate to permit appeal of the average weekly wage issue and therefore remand for further findings.
It is well established that the ALJ has discretionary authority under § 8-42-102(3), C.R.S. 2006, to calculate the average weekly wage by any method that will render a fair computation of the claimant's wages. We may not disturb the ALJ's determination of the average weekly wage unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d. 850 (Colo. 1993). An abuse of discretion exists where the order "exceeds the bounds of reason," such as where it is not in accordance with applicable law, or not supported by substantial evidence in the record. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985); Coates Reid Waldron v. Vigil, supra.
In Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993) the court held that § 8-42-102(3), C.R.S. 2006, grants the ALJ discretionary authority to increase the claimant's average weekly wage in circumstances where the claimant experiences successive periods of temporary disability, and the claimant's earnings increase between the periods of disability. In Campbell, the court held as a matter of law that manifest injustice would result if the claimant's temporary disability benefits in 1986 and 1989 were based on the lower wages which the claimant earned at the time of the 1979 injury. In so doing, the court observed that the objective in calculating the average weekly wage is to arrive at a "fair approximation of the claimant's wage loss and diminished earning capacity." Id. at 82.
It is also now well established that § 8-42-102(3) affords the ALJ discretion to recalculate the claimant's disability rate for medical impairment benefits by increasing the average weekly wage. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001) In Pizza Hut the court held that an ALJ did not abuse his discretion in calculating the award of medical impairment benefits based on increased earnings which the claimant received when he changed jobs after the industrial injury. The court specifically stated, "the fact the claimant was not concurrently employed by the hospital and the employer at the time of the injury does not preclude the exercise of discretion under § 8-42-102(3) and an award of medical impairment benefits based on a higher wage; it merely constitutes one circumstance to be considered."
Hence, the ALJ certainly had the discretion to recalculate the claimant's average weekly wage based upon her increased earnings after the date of injury. However, we are unable to ascertain from the ALJ's findings his intent regarding the claimant's average weekly wage. The ALJ correctly recognized that he had the discretion to calculate the claimant's average weekly wage using a wide variety of methods in order to fairly compute the wage under the circumstances of this case. In exercising that discretion, the ALJ appears to have concluded that the claimant's average weekly wage weekly wage at the time she reached maximum medical improvement would fairly compensate her for her wage loss and diminished earning capacity. However, the ALJ also found that the claimant's average weekly wage at the time of maximum medical improvement was "fairly computed" at $306.60. This calculation, however, ignores the parties 'stipulation at the hearing that the claimant's average weekly wage at the time of maximum medical improvement was $402.48. Although the respondents' attorney declined to stipulate that $402.48 was the applicable average weekly wage, he did stipulate that it was the claimant's wage at the time of maximum medical improvement. Tr. at 28. Without factual findings expressly explaining the ALJ's failure to adopt the stipulation, we are reluctant to conclude that he implicitly rejected it in favor of his own calculation of the claimant's average weekly wage at the time of maximum medical improvement.
Accordingly, further findings are necessary explaining the ALJ's conclusion on the one hand that the average weekly wage should be the claimant's earnings at the time of maximum medical improvement and his finding, on the other, that her wage was other than that stipulated to by the parties. On remand therefore the ALJ should enter factual findings clarifying whether the ALJ intended the average weekly wage to be the claimant's earnings at the time of maximum medical improvement, which was stipulated to be $402.48, or whether he intended it to be $306.60, based on some other calculation within his discretion.
IT IS THEREFORE ORDERED that the ALJ's order dated February 13, 2007, is set aside and the matter is remanded for further proceedings consistent with the foregoing order.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________
Jeanine Cramer, North 12th Street Grand Junction, CO, American Home Assurance c/o Sedgwick CMS Dawn Chambers, Phoenix, AZ, David Mueller, Esq., Grand Junction CO, (For Claimant)
David Dworkin, Esq., East Mexico Avenue, Suite, Denver CO, (For Respondents)