Opinion
W.C. No. 4-385-787.
June 27, 2002.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which increased the claimant's average weekly wage to $684.20, effective June 1, 2001. We affirm.
The claimant suffered an injury in 1998 while employed by Joslins Dry Goods (Joslins). The respondents admitted liability for benefits based on an average weekly wage of $440, which did not include the value of employer provided health and dental insurance. ( See Order approving stipulation on average weekly wage April 29, 2002). The claimant subsequently became employed at Zutopia. The claimant testified Zutopia hired her to work 40 hours a week at the rate of $16.35 per hour. Zutopia also provided group health insurance which was partially paid by the claimant and partially paid by the employer. In late May or June 2001 the claimant left Zutopia to accept a higher paying job at Pacific Sun Wear. However, the claimant became temporary totally disabled effective June 19, 2001.
Effective June 2001, the ALJ increased the claimant's average weekly wage to $684.20. In support, the ALJ found the claimant demonstrated a substantially higher earning capacity as of June 19, 2001 than she was earning at the time of the injury. Relying on Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), the ALJ also determined it would be manifestly unjust to compensate the claimant's 2001 disability based upon the claimant's substantially lower earnings in 1998. Because the claimant was employed by Pacific Sun Wear for only a few weeks before she became temporarily totally disabled, the ALJ determined the Pacific Sun Wear earnings did not fairly reflect the claimant's loss of earning capacity. In contrast the claimant was employed at Zutopia approximately one year before the disability. Consequently, the ALJ increased the average weekly wage to reflect the compensation terms of the claimant's "contract of hire" at Zutopia. The ALJ also increased the average weekly wage by $30.36, to reflect the "employer's contribution" to the claimant's health insurance coverage.
I.
On appeal the respondents contend the ALJ erred in calculating the average weekly wage based on the terms of the claimant's "contract of hire" at Zutopia instead of taking an average of the claimant's actual wages at Zutopia. We disagree.
Section 8-42-102(2)(d), C.R.S. 2001, provides that where the claimant is paid by the hour, the claimant's average weekly wage shall be determined by multiplying the hourly rate by the number of hours per day the claimant was working at the time of the injury. However, § 8-42-102(3), C.R.S. 2001, provides that, if "for any other reason," § 8-42-102(2)(d) will not "fairly" determine the claimant's average weekly wage, the ALJ may compute the average weekly wage "by such other method" as will fairly determine the claimant's wage loss and diminished earning capacity. The ALJ's discretionary authority includes the power to increase the claimant's average weekly wage for periods of disability which occur subsequent to the initial period of disability. Campbell v. IBM Corp., supra.
Because the ALJ's authority is discretionary, we may not interfere with the ALJ's calculation of the average weekly wage unless an abuse is shown. Coates, Reid Waldron v. Vigil, 856 P.d. 850 (Colo. 1993). No abuse is shown unless the order is beyond the bounds of reasons, as where it is not in accordance with applicable law, or not supported by substantial evidence in the record . Coates, Reid Waldron v. Vigil, supra.
In Campbell, the claimant's earnings increased after she returned to work following the industrial injury. She then experienced additional periods of temporary disability. Under these circumstances, the court held that § 8-42-102(3) authorized the ALJ to calculate the claimant's average weekly wage for the subsequent periods of temporary disability based on the claimant's increased earnings. The circumstances presented here are not substantially different from the facts in Campbell.
The record supports the ALJ's finding that the claimant obtained increased earnings at Zutopia, and later at Pacific Sun Wear. Consequently, the ALJ reasonably inferred that it would be manifestly unjust to compensate the claimant's temporary disability in 2001 based upon the claimant's lower earnings in 1998.
Furthermore, the objective of the average weekly wage calculation is to arrive at a fair approximation of the claimant's wage loss and "diminished earning capacity." Campbell v. IBM Corp., 867 P.2d at 82. In view of this principle, we cannot say the ALJ was precluded from calculating the average weekly based upon the compensation terms of the claimant's contract of hire at Zutopia. The ALJ's determination is buttressed by the fact that the parties only submitted wage statements for the claimant's earnings at Zutopia between January and June 2001 and the year to date earnings statement did not indicate the number of hours worked.
II.
The respondents also contend the claimant's correct average weekly wage is less than $684.20 because the ALJ erroneously considered the amount Zutopia contributed to the claimant's health insurance coverage. We perceive no basis to modify the ALJ's order.
Section 8-40-201(19)(a), C.R.S. 2001, states that if the claimant is injured during employment where the employer provided group health insurance coverage and the coverage is subsequently terminated, the average weekly wage shall include the employee's replacement cost of the group health insurance coverage. See Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001) ; Schelly v. Industrial Claim Appeals Office, 961 P.d. 547 (Colo.App. 1997). Because the statute expressly prescribes inclusion of the employee's replacement cost, the ALJ erred insofar as he included the cost of an "employer's" contribution to the claimant's group health insurance. Rather, we agree with the respondents that the claimant's "cost of conversion to a similar or lesser insurance plan" from the plan she had at Joslins is dispositive.
The claimant testified that when she terminated the Zutopia employment she had no employer provided group health insurance and, therefore, she applied for COBRA replacement coverage. Crediting the claimant's testimony the ALJ found the claimant's cost of COBRA health insurance benefits is $297.32 per month or $68.61 per week. (Findings of Fact 6, 8). However, the ALJ determined that during the claimant's employment at Zutopia, the employer contributed $30.36 per week to the cost of health insurance coverage. Therefore, the ALJ only increased the average weekly wage by $30.36 per week.
There is no finding or evidence the claimant's cost of converting the group health insurance coverage she had at Joslins is less the $30.36 per week. Consequently, the respondents' argument that the claimant's average weekly wage inclusive of the cost of health insurance is less than $684.20 is without merit.
Finally, we note the claimant's Brief in Opposition to the petition to review argues the ALJ erroneously failed to include the full cost of COBRA replacement benefits ($68.61 per week) in the increased average weekly wage. However, the claimant did not file a petition to review and, therefore, did not preserve the argument for appellate review. See Davila v. Merit System Council, 15 P.3d 781 (Colo.App. 2000) (any part of order that is adverse must be appealed to preserve right to further appeal).
IT IS THEREFORE ORDERED that the ALJ's order dated December 6, 2001, 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. 2001. 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 June 27, 2002 to the following parties:
Teresa Serrato, 3173 S. Danube St., Aurora, CO 80013
Joslins Dry Goods, _ Dillard's, 6921 S. University Blvd., Littleton, CO 80122
Traci Gardner, Liberty Mutual, P. O. Box 168208, Irving, TX 75016-8205
Jennifer E. Bisset, Esq., 1120 Lincoln St., #1001, Denver, CO 80203 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Hurtado