Opinion
W.C. No. 4-544-924.
February 23, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Klein (ALJ) which determined the claimant's average weekly wage (AWW) for purposes of awarding permanent partial disability (PPD) benefits. The respondents contend the ALJ's decision to calculate the claimant's AWW based on earnings from concurrent employments is not supported by the evidence. We affirm.
On June 19, 2002, the claimant sustained a compensable injury to her back while employed by respondent Footstar (K-Mart). In this employment the claimant earned an AWW of $480. When the claimant was placed at maximum medical improvement (MMI) on March 21, 2003, she was assigned permanent restrictions and was precluded from returning to the K-Mart job.
At the time of the injury the claimant was concurrently employed at Valley View Hospital (hospital) at the rate of $526 per week. The claimant was a food service worker and performed numerous activities including food preparation, dish washing, salad bar preparation, and cashier activities. The claimant testified that since the injury her duties have been limited to cashier work and some food preparation. The claimant also testified that because of ongoing pain she can no longer work more than 8 hours per day, and works fewer hours per day at the hospital than she did before the injury. (Tr. Pp. 13-15).
The ALJ credited the claimant's testimony concerning the effects of the injury on her ability to work. Thus, the ALJ found the claimant has completely lost the ability to perform the pre-injury job at K-Mart, and that the injury limits the claimant's ability to perform her job at the hospital as well as the type of work she "may be able to perform in the future." Thus, the ALJ concluded that the claimant's AWW, for purposes of calculating PPD benefits under section 8-42-107(8)(d), C.R.S. 2004, should include wages from both K-Mart and the hospital.
On review, the respondents contend the evidence does not support the ALJ's decision to calculate the AWW based on the concurrent employments. Essentially, the respondents argue that because the claimant has continued to work at the hospital and "perform the same job," and because there is no evidence that the industrial injury has limited her opportunities for advancement, inclusion of the hospital wages constitutes an abuse of discretion. We disagree.
Section 8-42-102(3), C.R.S. 2004, grants the ALJ discretion to calculate the AWW in a manner which is fair under the circumstances. Consequently, we may not interfere with the ALJ's calculation unless an abuse of discretion is present. An abuse exists if the ALJ's decision is beyond the bounds of reason or unsupported by substantial evidence in the record. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
In Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460, 461 (Colo.App. 1996), the Court of Appeals held that an ALJ has discretion to calculate the AWW for purposes of PPD benefits based on wages earned in concurrent employments even if the claimant "had not lost wages and not actually received temporary disability benefits." The court reasoned that section 8-42-107(8) does restrict an award of PPD benefits to those claimants who received temporary benefits, nor does it "restrict the calculation to the actual amount of the temporary disability benefits awarded." The Broadmoor court emphasized that temporary disability benefits are paid to compensate for actual wage loss while PPD benefits are paid to compensate for "lost earning capacity." In this regard, the court in Pizza Hut v. Industrial Claim Appeals Office, supra, noted that post-injury wages, including wage increases, are not necessarily reflective of the degree to which earning capacity has been impaired or may be impaired in the future. See also, Vail Associates, Inc. v. West, 692 P.2d 1111 (Colo. 1984). Indeed, loss of earning capacity has traditionally been evaluated in light of the claimant's employability on the open labor market, not just the ability to return to pre-injury employment. Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210 (Colo.App. 1990).
When reviewing the ALJ's order, we must uphold findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. Substantial evidence is probative evidence sufficient to support a reasonable belief in the existence of a fact without regard to conflicting evidence or inferences. Monfort, Inc. v. Rangel, 8667 P.2d 122 (Colo.App. 1993). The substantial evidence test requires that we view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The respondents' contention notwithstanding, substantial evidence supports the ALJ's decision to include the hospital wages when calculating the claimant's AWW for purposes of PPD benefits. The claimant testified that permanent restrictions from the injury preclude her from preforming some of her pre-injury duties at the hospital, including salad bar preparation. The claimant also testified that the limiting effects of pain prevent her from working two jobs, as she did before the injury. Finally, the claimant testified that she is working fewer hours at the hospital as a result of the injury. All of this evidence supports the ALJ's inference that the claimant's earning capacity on the open labor market is limited now and in the future compared to that which she enjoyed before the injury. The ALJ found the claimant's testimony credible and persuasive, and the mere fact that other findings might have been possible affords no basis for relief on appeal.
The respondent asserts that the Broadmoor decision is distinguishable because here, unlike the facts in Broadmoor, the claimant has shown no loss of opportunities for advancement. However, in this case the claimant has experienced an actual reduction in the duties she can perform, and a reduction in hours. Thus, as in Broadmoor, it may be inferred the industrial injury has impaired the claimant's earning capacity. Nothing in Broadmoor suggests that proof of lost earning capacity is restricted to evidence of lost opportunity for advancement, and we do not read the case to stand for that proposition.
IT IS THEREFORE ORDERED that the ALJ's order dated August 30, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Teresa Hernandez, Carbondale, CO, Footstar, Inc./Meldisco, Glenwood Springs, CO, Kim Boyd, Footstar, Inc./Meldisco, Mahwah, NJ, Sybil Grubbs, Liberty Mutual Insurance Company, Irving, TX, Joanna C. Jensen, Esq., Grand Junction, CO, (For Claimant).
Raymond A. Melton, Esq., Denver, CO, (For Respondents).