Opinion
W.C. No. 4-240-475
May 7, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Henk (ALJ) insofar as it calculated the average weekly wage. We modify the order.
The facts are undisputed. The claimant sustained a compensable injury in December 1994, which arose out of and in the course of her employment with United Food and Commercial Workers Local No. 7 (UFCW). At the time of the injury, the claimant was concurrently employed by Albertson's. The claimant's wage for both employments was established by a contract between the UFCW and Albertson's. On the date of the injury, the claimant earned $10.78 per hour.
The contract in force on the date of the injury also provided that, as of May 7, 1995, the claimant was to receive a raise of twenty-five cents per hour based on a forty-hour week. The claimant sought to have her average weekly wage adjusted, as of May 7, 1995, based on the contracted wage increase.
However, the ALJ concluded that the claimant was not entitled to the adjustment. The ALJ reasoned that, under § 8-42-102(2), C.R.S. (1996 Cum. Supp.), the average weekly wage is to be based on the claimant's remuneration "at the time of the injury." Further, the ALJ refused to exercise her discretion to increase the average weekly wage under § 8-42-102(3), C.R.S. (1996 Cum. Supp.). The ALJ found that the claimant failed to carry her burden of proof to establish that it was "unfair" to use the $10.78 per hour rate as the basis for the average weekly wage. In support, the ALJ stated that, although the claimant remained employed by Albertson's in May 1995, "unknown factors" could have led to a disruption of the employer-employee relationship prior to May 1995. Consequently, the ALJ stated that it was impossible to conclude that the "current average weekly wage is unfair." The ALJ also stated that the claimant's argument would "lead to enormous difficulties" in administering worker's compensation claims because union wages would never become "static," and this would be "problematic" when calculating permanent partial and permanent total disability benefits.
On review, the claimant contends, inter alia, that the ALJ abused her discretion in failing to modify the average weekly wage as of May 7, 1995. The claimant argues that her right to the increased wage was contractually established at the time of the injury, and that § 8-42-102(3) should have been utilized to adjust her wage in accordance with the contract. We agree with the claimant.
It is certainly true that § 8-42-102(2) requires the average weekly wage to be based on the claimant's earnings at the time of the injury. However, § 8-42-102(3) grants the ALJ discretionary authority to alter that formula if it will not for any reason fairly determine the employee's average weekly wage. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
The overall objective of average weekly wage calculation is to arrive at a fair approximation of the claimant's wage loss and diminished earning capacity. Although the ALJ has discretion in determining how to calculate the average weekly wage, we may not uphold the determination if it would result in a "manifest injustice." Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
In Campbell, the court held that the claimant's average weekly wage should be calculated based on the claimant's earnings at the time of each period of disability, not the earnings at the time of the injury. The facts in that case reflected that the claimant earned more during each successive period of disability, and the court concluded that it would be unjust to calculate the claimant's "disability benefits in 1986 and 1989 on her substantially lower earnings in 1979."
We conclude that the facts in this case cannot be meaningfully distinguished from those in Campbell. Here, at the time of the injury, the claimant had a contractual right to an increase in her hourly earnings as of May 7, 1995. This right was not contingent on performance evaluations or other subjective factors. Thus, the undisputed evidence establishes that the claimant would have been earning an additional twenty-five cents per hour subsequent to that date but for the intervention of the industrial injury. The claimant's right to receive the increase was sufficiently definite that it would be manifestly unjust to deprive her of the benefit of the increase when calculating her average weekly. See 2 Larson, Workmen's Compensation Law, § 60.11(f) (increases in the wage rate negotiated after a claimant's injury have been applied retroactively to increase the average weekly wage).
We are unpersuaded by the ALJ's argument that the claimant might have lost her job prior to May 1995, had she continued to work. The ALJ explicitly found that the claimant was still employed by Albertson's in May 1995, and therefore, the claimant did not lose her job.
Moreover, we are unpersuaded by the ALJ's argument that administrative difficulties are so great as to preclude this result. Because the overall objective of the average weekly wage calculation is to insure fairness, administrative concerns should not be predominant. In fact, Campbell v. IBM Corp. creates the type of problems mentioned by the ALJ, and the court nevertheless ordered increases in the average weekly wage.
Under these circumstances, the ALJ's order must be modified to reflect that the claimant's average weekly wage, as of May 7, 1995, should be increased by $10.00 per week (forty hours times twenty-five cents). In light of this disposition, we need not consider the claimant's other arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated September 5, 1996, is modified in accordance with the provisions of this order.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed May 7, 1997 to the following parties:
Carolyn Ebersbach, 1268 W. 102nd Ave., Northglenn, CO 80222
United Food Commercial Workers Local No. 7, Attn; Mr. Stan Kania, 7760 W. 38th Ave., Wheatridge, CO 80033
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Jeff Francis, Esq., 1900 Grant St., Ste. 1030, Denver, CO 80203 (For the Claimant)
David L. Smith, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
By: ____________________________