Opinion
W.C. No. 4-422-333
April 12, 2001
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the average weekly wage. We set aside the ALJ's order and remand for the entry of a new order.
In early April 1999, the claimant was hired by both Mariner Post Acute Network, doing business as Valley View Manor (Valley View), and Rainbow Living Centers (Rainbow). On May 9, 1999, the claimant suffered a work-related back injury at Valley View. The respondents admitted liability for temporary disability benefits. However, the parties subsequently disputed the claimant's average weekly wage.
The ALJ found the claimant worked sporadically for Rainbow, and that Rainbow's payroll records were illegible and incomprehensible. Thus, relying on the claimant's calendar of earnings, the ALJ found the claimant worked 10.5 hours at a rate of $6 per hour painting, and 85 hours at the rate of $6 per hour as a nurse's aide, for an average of $157.10 per week. The ALJ further found the claimant worked less than full time at Valley View, and earned $609.63 from April 7 through May 9, for an average of $129.32 per week.
Because the claimant did not have a set schedule and worked sporadically, the ALJ determined the fairest method of calculating the claimant's average weekly wage was to average the earnings over known time periods. Therefore, exercising his discretionary authority under § 8-42-102(3), C.R.S. 2000, the ALJ calculated average weekly wage as $286.42 ($157.10 +$129.32). However, the ALJ refused to increase the average weekly wage based upon the claimant's testimony that she expected to work 37.5 hours a week for Valley View and 40 hours a week for Rainbow after she obtained her CNA license. Instead, the ALJ determined § 8-42-102(3) does not permit ALJs to calculate "a wage which claimant may have earned if she had not had the effects of the work injury."
On review the claimant contends the ALJ misconstrued § 8-42-102(3) in determining that he was precluded him from awarding benefits based upon wages the claimant "would have earned" but for the injury. We agree.
The overall purpose of the statutory scheme for calculating average weekly wage is to "arrive at a fair approximation of the claimant's wage loss and diminished earning capacity." Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Section 8-42-102(2)(d), C.R.S. 2000, provides that where the claimant is paid by the hour the daily average weekly wage shall be determined by multiplying the hourly rate by the number of hours in a day during which the claimant "was working at the time of the injury or would have worked if the injury had not intervened." (Emphasis added).
Section 8-42-102(3) provides that if the specified method of computing the claimant's average weekly wage will not render a fair computation of wages for "any reason," the ALJ has discretionary authority under § 8-42-102(3), C.R.S. 2000, to use an alternative method to determine average weekly wage. Campbell v. IBM Corp., supra. Indeed, the statute expressly authorizes the ALJ to exercise his discretion to predict the average weekly wage "if the claimant has not worked a sufficient length of time" to permit a fair computation. This discretionary authority includes the power to increase the claimant's average weekly wage for periods of disability where the evidence is "sufficiently definite" to establish that the claimant's earnings at the time of the subsequent disability would have been higher than earnings at the time of the industrial injury and "manifest injustice" would result if the claimant's benefits are calculated based on lower earnings at the time of the injury. Campbell v. IBM Corp., supra; Romero v. Cub Foods, W.C. No. 4-218-823 (September 28, 2000) (upholding increase of average weekly wage where claimant's rate of pay increased more than $3 per hour between his original and subsequent period of temporary disability). Ebersbach v. United Food Commercial Workers' Local No. 7, W.C. No. 4-240-475 (May 7, 1997) (upholding redetermination of average weekly wage to include a post-injury raise guaranteed by a union labor contract).
The facts in Campbell involved a claimant who suffered three periods of temporary disability. The claimant's average weekly wage was greater at the time of each subsequent period of disability. Nevertheless, 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." Because the Campbell claimant actually received the wage increases there was no dispute the increases were "sufficiently definite" to be included in the average weekly wage.
It follows that here, the ALJ erred insofar as he determined as a matter of law that he could not calculate the claimant's temporary disability benefit rate to include increased earnings subsequent to the date of injury. However, the question of whether the claimant presented "sufficiently definite" evidence that her earnings would have increased after the date of the injury is one of fact for the resolution by the ALJ. Here, the ALJ found there was conflicting evidence concerning whether the claimant's earnings would have increased had the injury not intervened. The ALJ found:
"8. Claimant hoped to be able to work 37 ½ hours for respondent-employer and 40 hours per week for Rainbow after she passed her CNA test and the Rose street facility opened. Rainbow did not agree that claimant would work 40 hours per week for Rainbow as well as full-time for respondent-employer."
However, based upon his erroneous determination that he could not calculate the average weekly wage based upon post-injury earnings, the ALJ did not resolve the conflicts in the evidence. Under these circumstances, the ALJ's findings of fact are insufficient to permit to determine if the ALJ properly determined average weekly wage. Section 8-43-301(8), C.R.S. 2000.
On remand the ALJ shall enter a new order consistent with the applicable law, which resolves the pertinent conflicts in the evidence and articulates the factual basis for his calculation of the average weekly wage.
In remanding the matter, we recognize the respondents' contention that the ALJ's order should be interpreted as reflecting his unwillingness to speculate about wages the claimant "may" have earned after May 9. However, in the absence of additional findings, we decline to assume that was the basis for the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated June 8, 2000, is set aside, and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed April 12, 2001 to the following parties:
Lois Tibbs, P. O. Box 26, Maybell, CO 81640
Debra Jeffcoat, Mariner Post Acute Network d/b/a Valley View Manor, 943 W. 8th Dr., Craig, CO 81625
American Home Assurance, Tina Gustafson, Adjuster, AIG Claim Services, Inc., P. O. Box 32130, Phoenix, AZ 85064-2130
John A. Steninger, Esq., 4500 Cherry Creek Drive South, #930, Denver, CO 80246 (For Claimant)
Chris Forsyth, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: L. Epperson