Opinion
W.C. No. 4-382-934
March 26, 2001
FINAL ORDER
The respondents seek review of an order of the Administrative Law Judge Rumler (ALJ) which increased the claimant's average weekly wage. The respondents argue the ALJ abused her discretion by increasing the wage based on the claimant's earnings after the date of the injury. We affirm.
The facts are undisputed. The claimant sustained a compensable back injury on March 20, 1998. At that time, the claimant's average weekly wage was $408.34. The claimant was temporarily disabled until August 5, 1998, and for an additional four days in September 1998.
After the claimant returned to work, he experienced a flare up of his condition on September 3, 1999. The claimant was again rendered temporarily disabled, and had not been released to work at the time of the hearing on January 4, 2000. On September 3, 1999, the claimant was earning $603.20 based on increased wages dictated by his union's contract.
Under these circumstances, the ALJ exercised her "discretionary authority" to increase the average weekly wage from $408.34 to $603.20 for temporary disability commencing September 3, 1999. The ALJ found that using the average weekly wage as it existed on the date of injury would distort the claimant's earnings and unfairly reduce his disability benefits.
On review, the respondents argue the ALJ abused her discretion by increasing the claimant's average weekly wage. The respondents assert that this case does not exhibit "extreme circumstances" which would justify the ALJ in modifying the average weekly wage. Further, the respondent argues that Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), on which the ALJ's order was predicated, was wrongly decided. We reject these arguments.
In Campbell v. IBM Corp., supra, the court held that § 8-42-102(3), C.R.S. 2000, grants the ALJ discretionary authority to increase the claimant's average weekly wage in circumstances where the claimant experiences successive periods of temporary disability, and the claimant's earnings increase between the periods of disability. In Campbell, the court held as a matter of law that manifest injustice would result if the claimant's temporary disability benefits in 1986 and 1989 were based on the lower wages which the claimant earned at the time of the 1979 injury. In so doing, the court observed that the objective in calculating the average weekly wage is to arrive at a "fair approximation of the claimant's wage loss and diminished earning capacity." Id. at 82.
More recently, the same principle was applied to calculating the claimant's average weekly wage for purposes of determining medical impairment benefits under § 8-42-107(8)(d), C.R.S. 2000. In Pizza Hut v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA1568, January 18, 2001), the court held an ALJ did not abuse his discretion in calculating the award of medical impairment benefits based on increased earnings which the claimant received when he changed jobs after the industrial injury. The court specifically stated, "the fact the claimant was not concurrently employed by the hospital and the employer at the time of the injury does not preclude the exercise of discretion under § 8-42-102(3) and an award of medical impairment benefits based on a higher wage; it merely constitutes one circumstance to be considered."
Thus, the ALJ's order increasing the claimant's average weekly wage must be upheld unless there has been an abuse of discretion. An abuse of discretion does not occur unless the ALJ' order 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, supra.
Here, the record demonstrates the claimant experienced a substantial increase in earnings between the March 1998 industrial injury and the period of disability which commenced in September 1999. Further, the claimant's disability had continued for approximately four months by the time of the January 2000 hearing. Consequently, it was not unreasonable for the ALJ to conclude that manifest injustice would result if the claimant received temporary disability benefits based on substantially lower earnings existent at the time of the March 1998 injury. Campbell v. IBM Corp., supra.
The respondents argue that Campbell represents an example of "judicial legislation" which contradicts the plain meaning of § 8-42-102(2), C.R.S. 2000. Whatever the merits of that argument, we are not at liberty to disregard published opinions of the Court of Appeals. C.A.R. 35 (f). This is particularly true where, as here, the disputed legal principle has been recently reaffirmed by the appellate court in Pizza Hut v. Industrial Claim Appeals Office, supra. In any event, Campbell was published in 1993. In 1994 the General Assembly revisited the average weekly wage statute, but did not amend the relevant language. See 1994 Colo. Sess. Laws, ch. 225 at 1286. Consequently, we presume the General Assembly has endorsed the judicial construction placed upon the statute by the Campbell decision. Spanish Peaks Mental Health Center v. Huffaker, 928 P.2d 741 (Colo.App. 1996).
IT IS THEREFORE ORDERED that the ALJ's order dated February 14, 2000, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. 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 March 26, 2001 to the following
Jerry McGee, 6744 E. 123rd Dr., Brighton, CO 80601
United Airlines, DIA, 8400 Pena Blvd., Denver, CO 80249-6357
Phyllis Harrell, RSKCo, P. O. Box 5307, Denver, CO 80217-5307
Carol Schwartz, RSKCo, 10333 E. Dry Creek Rd., #300, Englewood, CO 80217-5300
Neil D. O'Toole, Esq., 226 W. 12th Ave., Denver, CO 80204 (For Claimant)
Floyd M. Youngblood, Esq., 4465 Kipling St., #102, Wheat Ridge, CO 80033 (For Respondents)
BY: A. Pendroy