Opinion
W.C. No. 4-533-879.
September 30, 2003.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which increased the claimant's average weekly wage (AWW) for purposes of calculating the claimant's award of permanent medical impairment benefits. We affirm.
In 2000 the claimant suffered a compensable injury to his lower back. At the time of the injury the claimant was employed as a maintenance supervisor and was paid $9 per hour. The respondents admitted liability for an AWW of $360.
On December 4, 2002, Dr. McLaughlin placed the claimant at maximum medical improvement (MMI) and assigned a 10 percent whole person impairment rating. At the time of MMI, the claimant was employed as a yard foreman and earned $9.45 per hour. The claimant requested an order increasing the AWW to $394.09.
The ALJ found that as a result of the industrial injury, the claimant has "permanent lifting restrictions which limit the performance of his current job and may require him to seek less demanding employment." (Finding of Fact 3). Further, the ALJ determined that the claimant's AWW at the time of MMI compensates the claimant's future loss of earnings more accurately than the pre-injury AWW. Therefore, exercising his discretionary authority under § 8-42-102(3), C.R.S. 2002, and relying on Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001), the ALJ ordered the payment of permanent partial disability benefits based on an AWW of $394.09.
On review, the respondents first contend the ALJ's findings of fact are not supported by the evidence. We disagree.
AWW is generally determined by the wage the injured worker received at the time of the injury. However, the overall purpose of the statutory scheme 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). Therefore, 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), to use an alternative method to determine AWW. Campbell v. IBM Corp., supra. Further, in Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001), the court held that § 8-42-102(3), permits ALJs to redetermine the AWW for purposes of calculating medical impairment benefits. See also Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996).
An ALJ's exercise of discretion in selecting an alternative method for computing the AWW is binding in the absence of an abuse of discretion. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d at 869. An abuse is shown where the order is not in accordance with applicable law, or not supported by substantial evidence in the record. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Application of this standard requires that we defer to the ALJ's credibility determinations and his assessment of the sufficiency and probative weight of the evidence. Furthermore, the ALJ's factual determinations may include inferences drawn from circumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Dr. McLaughlin's medical report dated, December 4, 2002, imposed permanent lifting restrictions on the claimant's work activities. Similarly, the November 2002 Functional Capacity Evaluation (FCE) (Claimant's Hearing Exhibit 5) recommended the claimant pace his activities so that the "heaviest work is done primarily" when there are community services workers available to assist. The FCE also suggested the claimant's work be organized to move the largest, bulkiest items by forklift.
The claimant testified he continues to experience pain, stiffness in his back and a twitching pain down his right leg. (Tr. p. 6). He also stated that he has permanent work restrictions which affect his work because, "a good portion of my job consists of lifting and repetitive bending." The claimant further stated that due to his 30 pound lifting restriction he does not do "any repetitive bending or any lifting" at work. (Tr. p. 7). He added that although he had been employed with the respondent-employer for 3 ½ years, the lifting limitations are "going to make it tough to continue with the position I'm in; each day is harder and harder to get through." (Tr. p. 9).
Further, it is undisputed the claimant demonstrated the ability to earn at least $9.45 per hour. Based on this evidence the ALJ could reasonably infer that the industrial injury resulted in permanent medical restrictions and, the restrictions may impair the claimant's ability maintain employment at a wage of at least $9.45 per hour.
Nevertheless, the respondents contend the ALJ's findings are legally insufficient to support the order because this claim is factually distinguishable from Pizza Hut. Again, we disagree.
The claimant in Pizza Hut suffered an injury while employed as a part-time delivery driver. At the time of the injury, the claimant was attending nursing school but his AWW was $110.03 per week. At the time of MMI the claimant was working as a nurse and earned $458.03 per week. Exercising his discretionary authority under § 8-42-102(3), an ALJ determined that calculating the claimant's medical impairment benefits based on his AWW as a part-time delivery driver would significantly understate the impact of the Claimant's injury on his future loss of earning capacity. Therefore, the insurer was ordered to pay medical impairment benefits based upon the claimant's AWW as a nurse.
Contrary to the respondents' contention the court in Pizza Hut did not require proof of a "radical" increase in the claimant's wages, to support the exercise of discretion under § 8-42-102(3). Rather Pizza Hut held that:
"the potential impact that claimant's impairment and his physical restrictions may have on his future nursing career represents a reasonable and appropriate circumstance to be considered by the ALJ in assessing the fairness of the calculation of the average weekly wage. This is particularly so given claimant's testimony as to the possible limitations he may face."
Ibid at 869. Further, the court in Pizza Hut concluded that the existence of conflicting evidence did not render the ALJ's order an abuse of discretion. Consequently, we reject the respondents' contention that an ALJ's exercise of discretion under § 8-42-102(3) is an abuse of discretion unless the claimant demonstrates a post-injury wage increase of the magnitude experienced by the claimant in Pizza Hut.
Here, the claimant did not change careers or employers after the industrial injury. Neither did the claimant experience a 400 percent wage increase. However, the record supports the ALJ's finding that the claimant experienced permanent work restrictions which may have impact his future career. Under these circumstances, we are not persuaded Pizza Hut precluded the ALJ from finding that it would be manifestly unjust to calculate the claimant's medical impairment award based on his lower earnings at the time of the injury instead of the higher earnings at the time of MMI. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ's order); compare Porter v. Wal-Mart Stores, Inc., W.C. No. 4-392-507 (August 12, 2002). Therefore, we cannot say the ALJ's order represents an abuse of discretion.
IT IS THEREFORE ORDERED that the ALJ's order dated May 21, 2003, 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. 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 decision were mailed September 30, 2003 to the following parties:
Dan Waalkes, 3195 Hill Ave., #4, Grand Junction, CO 81504
The Salvation Army, 1235 N. 4th St., Grand Junction, CO 81501
RSKCo, c/o Alixe Virbick, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO 80155-4068
Christopher Seidman, Esq., P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
D. Clay Thornton, Esq. and Robert H. Coate, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado