Opinion
W.C. No. 4-528-390.
September 30, 2003.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Harr (ALJ) insofar as it determined the claimant's average weekly wage (AWW). The respondent contends the ALJ's findings of fact are not supported by the evidence, that the ALJ failed to make sufficient findings of fact, and that the ALJ erred by including two post-injury wage increases when calculating the claimant's AWW. We affirm.
The claimant, an administrative assistant, sustained an admitted back injury on May 26, 2001. At the time of the injury, the claimant earned an hourly wage of $13.34. The claimant testified that she worked an average of 40.8 hours per week, based on the number of hours she worked between January 1, 2001 and the date of injury.
The claimant returned to work following the injury and received two pay increases. On January 1, 2002, the claimant's hourly rate was increased to $14.37. On January 20, 2002, the hourly rate was increased to $15.88.
A treating physician placed the claimant at maximum medical improvement (MMI) on September 16, 2002, with a nine percent whole person medical impairment rating. On November 20, 2002, the respondent filed a final admission of liability (FAL) admitting liability for temporary total disability (TTD) benefits from December 12, 2001 through December 25, 2001, and temporary partial disability (TPD) from December 26, 2001 through January 27, 2002. The respondent also admitted for permanent partial disability (PPD) benefits based on the treating physician's impairment rating.
The ALJ, relying on § 8-42-102(3), C.R.S. 2002, as legal authority, credited the claimant's testimony concerning the number of hours she worked prior to the injury. Hence, the ALJ determined a fair calculation of the claimant's AWW on the date of injury is $544.40 (40.8 x $13.34). The ALJ also relied on § 8-42-102(3) to adjust the AWW based on the two wage increases which the claimant received in January 2002. In support of this adjustment, the ALJ cited a report of the treating physician which states the claimant will be required to take frequent breaks to change body position, stand and stretch hourly, and limit her lifting to no more than 30 lbs. The ALJ also credited the claimant's testimony that she has continuing low back pain which requires her to take frequent breaks and has caused her to miss approximately seven days of work since being placed at MMI. (Tr. pp. 16, 18). The ALJ inferred from this evidence that the claimant has sustained a permanent loss of earning capacity justifying an increase in the AWW to $586.29 on January 1, 2002, and $647.90 on January 20, 2002.
I.
The respondent first contends the ALJ erred in determining the claimant's AWW was $544.40 on the date of injury. The respondent asserts the ALJ failed to make findings of fact concerning this determination, and there is no legal basis for this conclusion. We disagree.
Section 8-42-102(3) affords the ALJ discretionary authority to formulate a method for calculating the AWW if, for any reason, the specified statutory methods "will not fairly compute" the AWW. Because the authority is discretionary, we may not interfere with the ALJ's exercise of discretion unless the decision is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
We must uphold the ALJ's findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). When entering findings of fact the ALJ need not explicitly reject evidence he finds to be unpersuasive as long as the basis of the order is clear from the findings the ALJ does make. Further, we may consider findings necessarily implied by the ALJ's order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the record reflects that the parties presented conflicting theories concerning the proper calculation of the AWW. The respondent's proposed calculation was based on the claimant's earnings for the 12 weeks immediately prior to the industrial injury, and the claimant's calculation was based on the 19 weeks preceding the injury. The ALJ explicitly found the claimant's method of calculation to be fair because it is based on the claimant's earnings after receiving her last pre-injury pay increase on January 1, 2001. (Finding of Fact 7). We infer the ALJ found the claimant's calculation is the fairest method because the respondent's own witness admitted that over a period of time an employee's wages may vary depending on such factors as short workdays and overtime earnings. (Tr. p. 35). Because the claimant's method is based on a longer period of time, the ALJ reasonably concluded that the claimant's method best accounts for the variances and most accurately reflects the claimant's true earnings after the January 2001 pay raise. We also note that the respondent's proposed method is no more grounded in the statute than the claimant's, and the respondent's witness admitted the only difference between the two was the number of weeks used to arrive at the claimant's average earnings. (Tr. pp. 29, 32).
It follows that we reject the respondent's assertion that the findings of fact are insufficient to support appellate review. We have no difficulty ascertaining the basis of the ALJ's conclusions from the findings which were entered. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. Further, we cannot say the ALJ's findings are unsupported by the evidence or that his conclusion constitutes an abuse of discretion.
II.
The respondent next contends the ALJ erred in adjusting the claimant's AWW based on the post-injury wage increases. The respondent asserts the record lacks substantial evidence to support the ALJ's finding that the industrial injury has affected the claimant's future earning capacity. The respondent relies on evidence that the claimant returned to work, received wage increases, and has not been denied any promotions. The respondent also asserts that Pizza Hut v. Industrial Claim Appeals Office, supra, was wrongly decided. In any event, the respondent argues that Pizza Hut and Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), are distinguishable from the facts in this case, and provide no basis for including the post-injury increases in the AWW. We find no error.
We reject the respondent's argument that the ALJ lacked statutory authority to adjust the AWW based on the post-injury wage increases because, under § 8-40-201(19(a), C.R.S. 2002, and § 8-42-102(2), C.R.S. 2002, the AWW must be based on the claimant's wages at the time of the injury. The Court of Appeals necessarily rejected the respondent's interpretation of the statutes in Pizza Hut v. Industrial Claim Appeals Office, supra, and Campbell v. IBM Corp., supra. Because Pizza Hut and Campbell are a published cases, we must treat them as binding precedent. C.A.R. 35(f); Porter v. Wal-Mart Stores, Inc., W.C. No. 4-392-507 (August 12, 2002).
In Pizza Hut, the claimant was injured while earning $110 per week as a pizza delivery person. Soon thereafter the claimant completed his education and assumed work as a nurse earning $458 per week. The issue in the case was whether the claimant's PPD should be calculated based on the AWW on the date of injury, or his earnings as a nurse at the date of MMI. Relying on the ALJ's discretionary authority contained in § 8-42-102(3), the court concluded that because PPD benefits compensate for loss of future earning capacity, it was proper for the ALJ to consider "the potential impact that claimant's impairment and his physical restrictions may have on his future nursing career." 18 P.3d at 869. Because the record contained evidence of permanent physical restrictions and the claimant's testimony concerning "possible limitations" he might face, the court concluded the ALJ did not abuse his discretion "in determining that the higher wage earned at the time of MMI more fairly compensates claimant for his future loss of earnings." Id. at 870.
In Campbell v. IBM Corp., supra, the court reversed our order which upheld an ALJ's decision to award compensation based on the claimant's AWW on the date of injury. The court, citing § 8-42-102(3), concluded that it would be "manifestly unjust to base claimant's [temporary] disability benefits in 1986 and 1989 on her substantially lower earnings in 1979." The court reasoned that to "compensate for the claimant's actual loss of income, her average weekly wage should be determined based on her earnings at the time of each period of disablement."
Applying those principles here, we perceive no abuse of discretion in the ALJ's decision to adjust the AWW based on the claimant's post-injury wage increases. Here, as in Pizza Hut, the record contains substantial evidence that the industrial injury has resulted in permanent physical restrictions and ongoing pain which interfere with the claimant's performance of her duties as an administrative assistant. The ALJ plausibly inferred from this evidence that the claimant's future earning capacity has been limited because the residual physical limitations impair her access to the labor market. As the ALJ explicitly found, and the court noted in Pizza Hut, the mere fact that the claimant has received post-injury wage increases "does not establish a lack of impairment, nor does it mean that the claimant has not suffered a future wage loss related to the impairment." 18 P.3d 867 (Colo.App. 2001). Similarly, the fact the claimant has not yet suffered any loss of opportunities does not mean that she never will.
Admittedly, there is an element of speculation or prediction involved in assessing loss of future earning capacity. However, such predictions have always been within the province of the ALJ as fact finder. See Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) (test for permanent total disability depends on the existence of employment which is reasonably available under the claimant's circumstances, and this determination depends, in part, on the likelihood that employment will become available); Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210, 212 (Colo.App. 1990) (determination of impaired earning capacity must be based on employability in the open labor market, not merely the limited context of employability with the claimant's current employer).
This case is distinguishable from Porter v. Wal-Mart Stores, Inc., supra, cited by the respondent. In Porter, the ALJ failed to enter any specific findings of fact and conclusions of law justifying the increase in the AWW. In that case, we stated the "ALJ did not find the claimant's career options have been limited by the injury, nor did he find the injury resulted in permanent physical restrictions which have affected the claimant's future earning capacity." The paucity of findings in the Porter case stands in stark contrast to the specific findings made by the ALJ in this case.
Further, we do not think that Campbell v. IBM Corp., supra, is distinguishable in any meaningful way from the facts in this case. Here, as in Campbell, the claimant sustained temporary disability during a period of time when her wages had increased over those earned at the time of the injury. The essence of the Campbell decision is the court's conclusion that it would be unfair to limit the claimant's subsequent temporary benefits based on substantially lower earnings received at the time of injury. In this case, the ALJ plausibly concluded that it would be unfair to base the claimant's admitted temporary disability benefits on the lower earnings at the time of the injury. We certainly cannot say as a matter of law that the increase in the claimant's wages was so insignificant that the ALJ acted beyond the bounds of reason in considering this factor. Indeed, the claimant's AWW was increased by approximately $100 dollars per week in a short period of time. Neither can we conclude that Campbell requires that there be a lengthy delay between the date of injury and the subsequent increase in wages. Although there were lengthy delays in Campbell, the unfairness existed because of the disparity in earnings, not the length of time it took for the disparities to occur.
The respondent also contends that the ALJ misapplied the law in stating that increasing the AWW would "more fairly approximate [the claimant's] wage loss." The respondent asserts the ALJ was required to find that it would be "unfair" to exclude the wages. However, the ALJ explicitly stated that under § 8-42-102(3), discretion is afforded to alter the formula for calculating the AWW "if for any reason it will not fairly determine claimant's AWW." (ALJ's Order, Line 1, p. 4). Thus, the ALJ recognized the correct legal standard, and viewing the ALJ's order in its totality, we perceive no misapplication of the law.
The respondent also cites several "policy reasons" for holding the AWW should be limited to the claimant's earnings on the date of injury and should not include post-injury increases. Whatever the merits of those arguments, they afford us no basis for ignoring the holdings in Pizza Hut and Campbell, and we decline to do so. Insofar as the respondent makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated April 3, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was 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 order were mailed to the parties at the addresses shown below on September 30, 2003 by A. Hurtado.
Phyllis Martinez, 575 Villa St., Grand Junction, CO 81504
City of Grand Junction, 250 N. 5th St., Grand Junction, CO 81501
Helen Russell, CCMSI, P. O. Box 173682, Denver, CO 80217
J. Keith Killian, Esq. and Amy K. Eaton, Esq., P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)
James R. Clifton, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondent)