Opinion
W.C. No. 4-476-394
May 5, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which increased the claimant's average weekly wage (AWW) for medical impairment benefits. We affirm.
In August 2000 the claimant suffered a compensable disc herniation. The claimant reached maximum medical improvement on June 4, 2001. A Division-sponsored independent medical examination (DIME) physician assigned a 54 percent whole person impairment rating due to post-surgical spondylosis and range of motion deficits to the lumbar spine. The DIME also found the injury caused rectal, bladder and sexual dysfunction.
The ALJ's findings of fact may be summarized as follows. One month prior to the injury the claimant was promoted to the position of assistant manager which resulted in a significant increase in income due to overtime pay. Between August 27, 2000 and January 4, 2001, the claimant's AWW was $533.67. However, as a result of the industrial injury the claimant was physically unable to work long hours. Therefore, effective January 4, 2001, the claimant accepted reassignment to a position of manager, which allowed him to hire additional staff to work the overtime hours he could not work.
The ALJ also found the claimant has permanent medical restrictions which limit lifting, and repetitive motion activities and non-exertional limitations caused by the industrial injury including chronic pain, and the potential for psychological difficulties related to urinary and sexual dysfunction. The ALJ determined these limitations will probably shorten the claimant's work life and preclude the claimant from performing jobs where he can earn the wages he earned as an assistant manager. Under these circumstances, the ALJ exercised his discretionary authority under § 8-42-102(3), C.R.S. 2002 and increased the AWW to $533.67 for purposes of calculating the award of permanent medical impairment benefits. The respondents timely filed a Petition to Review.
The respondents' Petition to Review contains general allegations of error. See § 8-43-301(8), C.R.S. 2002. The respondents also contend the ALJ misapplied § 8-42-102(3). However, the respondents have not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. See § 8-43-301(4), C.R.S. 2002 ; Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Section 8-42-107(8)(d), C.R.S. 2002, 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. 2002, provides that a claimant's temporary disability rate is sixty-six and two-thirds percent of the claimant's AWW. Where the injured worker is paid by the hour, the AWW is generally determined from the claimant's hourly wage at the time of the injury. Section 8-40-201(19)(a) § 8-42-102(2)(d), C.R.S. 2002.
However, the overall purpose of the statutory scheme 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). Therefore, § 8-42-102(3), affords the ALJ discretionary authority to use an alternative method to calculate the AWW where "manifest injustice" would result by calculating the claimant's average weekly wage under § 8-42-102(2). Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996); Campbell v. IBM Corp., supra. In Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001), the court held that § 8-42-102(2), permits ALJs to redetermine the AWW for purposes of calculating the amount of medical impairment benefits. See also Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996); Moses v. Digital Equipment Corporation, W.C. No. 4-336-048 (April 5, 1999).
We may not disturb the ALJ's determination of the AWW in the absence of an abuse of discretion. Coates, Reid Waldron v. Vigil, supra. An abuse is shown where the order 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). Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Application of this standard requires that we defer to the ALJ's credibility determinations and her assessment of the sufficiency and probative weight of the evidence. Furthermore, the ALJ's factual determination my be inferences drawn from circumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
We have reviewed the record and the ALJ's findings of fact. The ALJ's findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon her credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the ALJ's order reflects her consideration of the relevant factors in exercising her discretionary authority under § 8-42-102(3), and there is substantial evidence in the record to support the ALJ's implicit determination that it would be manifestly unjust not to calculate the claimant's medical impairment award based on his higher earnings as an assistant manager. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ's order).
The respondents also contend the ALJ "unreasonably relied on Claimant's testimony in overcoming opinions of" the DIME physician. However, the ALJ is only required to afford the DIME physician's opinion special weight on the issues of MMI and permanent medical impairment. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Thus, the ALJ was not precluded from crediting the claimant's testimony to find the claimant has permanent medical restrictions which severely impair his earning capacity.
IT IS THEREFORE ORDERED that the ALJ's order dated November 13, 2002, 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. 2002. 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 May 5, 2003 to the following parties:
Gary L. Fisk, 514 6th St., Apt. 2, P. O. Box 1216, Georgetown, CO 80444
Ultramar Diamond Shamrock, c/o CCMI, 6000 N. Loop 1604 W., San Antonio, TX 78249-1112
Diamond Shamrock Ref Mkt Co., 1501 Argentine Rd., Georgetown, CO 80444
Laura Berg, Corporate Claims Management, P. O. Box 696080, San Antonio, TX 78269-0080
Eric C. Staton, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
Timothy L. Nemechek, Esq., 1200 17th St., #1700, Denver, CO 80202-5817 (For Respondents)
BY: A. Hurtado