Opinion
W.C. No. 3-113-948
January 15, 1998
ORDER OF REMAND
The respondents seek review of the final order of Administrative Law Judge Martinez (ALJ) insofar as it determined the claimant's average weekly wage. We set the order aside and remand for entry of a new order.
The issue in this case is whether a "flex credit" should have been included in the claimant's average weekly wage. The ALJ found that the claimant's overall average weekly wage was $346.91 per week. The parties now agree that this amount includes the $36.43 per week flex credit.
The ALJ found, and the record confirms, that the "flex credit" was included in, but listed as a separate item in the claimant's overall gross pay for each pay period. The respondent-employer's personnel director testified that the purpose of the flex credit was to offset the employee's cost of employee health insurance and long term disability insurance. However, the flex credit could also be used to purchase dental insurance, life insurance, or to reduce the cost of uninsured health care expenses and dependent day care. (Tr. pp. 32, 43, 44, 46). The personnel director also testified that the amount of the flex credit allocated to the employee was dependent on the type of benefit package selected by the employee, but mainly the health insurance.
In this case, the personnel director stated that the claimant spent the entire amount of his flex credit on health insurance. (Tr. p. 46). However, she also indicated that if the cost of the benefits selected by the employee did not exceed the amount of the flex credit, the claimant could use the remaining amount "however he wanted." (Tr. p. 48). Finally, the personnel director indicated that the respondent-employer was continuing to pay the claimant's health insurance, dental insurance and life insurance. (Tr. pp. 33-34).
The ALJ found that the "value" of the medical, dental and life insurance benefits which the claimant continues to receive from the employer is $40.31 per week. He concluded that, because the flex credit is included in the claimant's gross pay, and because it may be allocated to a "variety of uses such as day care, life insurance, dental insurance, health insurance, or theoretically, not used at all," the flex credit is part of the claimant's average weekly wage.
On review, the respondents contend that the ALJ erred in including the amount of the flex credit in the claimant's average weekly wage. The respondents argue that the evidence demonstrates that the claimant's flex credit was paid to offset the cost of his personal health insurance. The respondents reason that, since the employer continues to pay the claimant's health insurance, as well as other insurance benefits, the flex credit may not be included in the average weekly wage. We conclude that the ALJ's findings of fact are insufficient to support appellate review, and partially erroneous. Therefore, we remand for entry of a new order.
Section 8-40-201(19)(a), C.R.S. 1997, provides that "wages" means the "money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury." Section 8-40-201(19)(b) further provides that "wages" includes the "employee's cost of continuing the employer's group health insurance plan and, on termination of continuation, the employee's cost of conversion to a similar or lesser insurance plan." However, the statute also provides that if the employer continues to pay for the employee's health insurance, "such advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make such payment."
Relying on Sneath v. Express Messenger, 881 P.2d 453 (Colo.App. 1994), the claimant argues that, because the flex credit was included in his "gross pay," it was necessarily part of the "money rate" at which the services were recompensed under his contract of hire. However, we do not consider Sneath to be dispositive.
In Sneath, the employer paid the claimant a total amount in gross wages, but designated one-half of the wages as "expense reimbursement." The court concluded that where the amount claimed as expense reimbursement bore no rational or realistic relationship to the claimant's actual expenses, the employer's designation could not diminish the claimant's average weekly wage.
Here, the respondents have presented some evidence that the amount of the claimant's flex credit was directly tied to the health insurance package which he selected, and that he would not have received as large a flex credit but for his election to purchase the health insurance. Moreover, the respondents presented evidence that the cost of the claimant's health insurance more than offset the total amount of the flex credit. Thus, in our view, § 8-40-201(19)(b) may preclude inclusion of the flex credit in the claimant's average weekly wage.
We recognize that the ALJ's finding that the claimant "theoretically" may not have used the flex credit at all could represent a finding that he did not believe the total amount of the flex credit was dependent on the claimant's election to receive health insurance. The finding may also indicate the ALJ's conclusion that the claimant could spend the flex credit free of any restrictions. However, we are not certain that the ALJ resolved the conflicts in the evidence, and therefore conclude the matter must be remanded for that purpose. Section 8-43-301(8), C.R.S. 1997. Specifically, the ALJ must address the contention that the flex credit amount included in the claimant's gross pay was paid only because the claimant had elected to use it for health insurance, which has been maintained by the respondent-employer.
We also note that the ALJ found that $40.31 represents the "value" of medical, dental and life insurance benefits. The claimant argues that this finding is supported by the respondents' answers to interrogatories, which are contained in the file. However, Answer 6 merely states that the employer "is currently paying $40.31 per week on Claimant's behalf for his health insurance." Thus, the ALJ's finding is unsupported by the evidence insofar as it states that the $40.31 represents the "value" of all benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated July 11, 1997, is set aside, and the matter is remanded for additional findings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
Copies of this decision were mailed January 15, 1998 to the following parties:
Glen Farley, 190.5 Bel Mont Dr., Grand Junction, CO 81503
Grand Junction Newspapers, Inc. d/b/a The Daily Sentinel, 734 S. 7th St., Grand Junction, CO 81501-7737
Insurance Co. of the State of Pennsylvania, Crawford Co. P.O. Box 6502, Englewood, CO 80155-6502
J. Keith Killian, Esq. Joanna C. Jensen, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
Joel S. Babcock, Esq. Wendy J. Shea, Esq., 400 S. Colorado Blvd., Ste. 700, Denver, CO 80222 (For the Respondents)
By: ________________________________