Opinion
W.C. No. 4-398-905
October 18, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which determined average weekly wage for admitted temporary disability benefits. We affirm.
On June 22, 1998, the claimant began working for the employer as a freight delivery truck driver. On October 9, 1998 the claimant suffered compensable injuries. The respondents filed a General Admission of Liability for temporary disability benefits based upon an average weekly wage of $945.94. However, on February 2, 1999, the respondents petitioned to modify the admission to lower the claimant's average weekly wage and resulting temporary disability rate. The claimant objected and requested a hearing.
At hearing, the parties stipulated the claimant was paid $9.75 per hour at the time of the injury. The parties also stipulated the claimant worked a total of 746.23 hours up to the date of injury. On appeal, the respondents also concede the claimant was paid one and one-half his hourly rate for all hours over 40 per week.
The ALJ determined the claimant lost time from work as a result of a foot injury on July 27, 1998. Therefore, exercising his discretionary authority under § 8-42-102(3), C.R.S. 1999, the ALJ determined that the claimant's average weekly wage is fairly calculated based on the ten week time period preceding the October injury. The ALJ also found the claimant was entitled to receive a $.25 raise on December 22, 1998, and another $.25 raise on March 22, 1999. (Findings of Fact 6, 7). Crediting the claimant's testimony the ALJ further found the claimant worked 45 to 50 hours per week for an average of 48.48 hours. Consequently, the ALJ determined the claimant's average weekly wage is $527.20 for temporary disability benefits paid from February 2, 1999 through March 21, 1999, and $540.38 for temporary disability benefits paid after March 21, 1999.
On review the respondents do not dispute the ALJ's determination that they are bound by their General Admission of Liability for temporary total disability benefits due and payable up through February 1, 1999. However, they contend the ALJ's order is insufficient to permit appellate review of whether the ALJ miscalculated average weekly wage for benefits after February 1, 1999, because the ALJ's findings do not reflect his mathematical calculations.
We agree with the claimant that the basis for the ALJ's calculations is clear from the stipulated facts and the findings of fact. Therefore, the ALJ's order is sufficient to permit appellate review and we need not remand the matter for additional findings. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) ; Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
The ALJ determined the claimant worked an average of 48.48 hours per week during the 10 period before the injury. (Finding of Fact 19). The ALJ also determined it was proper to include the claimant's quarterly wage increases in the average weekly wage. (Conclusions of Law 3). Consequently, the ALJ found that, effective February 2, 1999, the claimant earned $10 per hour for 40 hours which equals $400 per week, and $15 for 8.48 hours which equals $127.20 per week, for an overall average weekly wage of $527.20. As of March 22, 1999, the ALJ found the claimant earns $10.25 per hour for 40 hours which equals $410 per week, and $15.375 per hour for 8.48 hours which equals $130.38 per week and results in an average weekly wage of $540.38.
However, the respondents contend the ALJ erred by including the claimant's post-injury wage increases in the average weekly wage. The respondents argue that because average weekly wage is to be based on the claimant's earnings "at the time of the injury," post-injury wage increases are irrelevant. We disagree.
It is certainly true that § 8-42-102(2), C.R.S. 1999, requires the average weekly wage to be based on the claimant's earnings at the time of the injury. However, the term "wages" is the "money rate at which the services rendered are recompense under the contract of hire," and the entire objective of the calculation of average weekly wage is to arrive at a fair approximation of the claimant's wage loss and diminished earning capacity from the industrial injury. Section 8-40-201(19)(a), C.R.S. 1999; Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Section § 8-42-102(3) affords the ALJ discretionary authority to use any method which will fairly determine the claimant's average weekly wage. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). We may not interfere with the ALJ's exercise of discretion unless it would result in "manifest injustice." Campbell v. IBM Corp., supra.
The facts in Campbell revealed that the claimant earned more during each successive period of disability. Under these circumstances, 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 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." See also Lenco Leasing Co. v. O'Dell, 704 P.2d 329 (Colo.App. 1985) (benefits should be paid according to the contract in force at the time of injury).
Here the ALJ implicitly determined that the contract of hire included a $.25 raise every quarter for the first year of the claimant's employment. The respondents arguments notwithstanding, there is substantial evidence in the claimant's testimony to support the ALJ's finding, and therefore, the finding must be upheld. (Tr. pp. 8, 9). The claimant also stated that even after the industrial injury the employer promised to give him the raise increases. (Tr. p. 10).
Nevertheless, the respondents contend that Campbell is factually distinguishable from this claim, because the claimant experienced only one period of temporary total disability followed by a period of temporary partial disability and not multiple periods of temporary disability. We disagree.
The claimant was temporarily disabled while earning $9.75 per hour, then later disabled while earning $10 per hour and again disabled while earning $10.25 per hour. Under these circumstances, it would be manifestly unjust to deprive the claimant of the benefit of the post-injury wage increases when calculating his average weekly wage. Consequently, we cannot say the ALJ abused his discretion in including the claimant's quarterly wage increases in the average weekly wage, and the respondents further arguments on the issue are not persuasive. See Larimer County v. Dennon-McCoy (Colo.App. No. 94CA1765, August 3, 1995) (not selected for publication) ( Campbell applies to accidental injuries as well as occupational disease claims).
IT IS THEREFORE ORDERED that the ALJ's order dated June 17, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain ____________________________________ Kathy E. Dean
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 18, 1999 the following parties:
Daniel M. Lawrence, 3284 Lombardy Ln., Clifton, CO 81520
HVH Transportation, Inc., Attn: Greg Miller, Safety Director, 181 E. 56th Ave., Denver, CO 80216
Great West Casualty Company, Attn: Daniel Wenham, 1100 W. 28th St., P.O. Box 277, South Sioux City, NE 68776-0277
Lauretta A. Martin, Esq., 225 N. 5th St., #1010, P.O. Box 5849, Grand Junction, CO 81502 (For Claimant)
John G. Napier, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondents)
BY: A. Pendroy