Opinion
W.C. No. 4-491-308
September 16, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied the claimant's request to increase the average weekly wage for the purpose of awarding temporary partial disability benefits. We affirm.
The claimant, a school bus driver, sustained a compensable injury to his right elbow on February 7, 2001. The claimant was not restricted from and continued performing his regular employment until August 28, 2001, when he underwent surgery. Thereafter, the claimant received medical restrictions prohibiting use of the right upper extremity. The claimant reached maximum medical improvement (MMI) on February 22, 2002.
During the relevant periods of time the claimant and his wife served as adoptive and foster care parents for 8 severely disabled children. As a result, the claimant and his wife received approximately $9,000 per month from government and private sources.
The ALJ found, and the claimant does not now dispute, that before the injury the claimant's wife provided more direct care to the children, but the claimant "did much of the required lifting of the children." Further, the ALJ found the claimant was in no way disabled from providing child care until August 28, 2001, when the claimant was prohibited from lifting any of the children. Nevertheless, the claimant continued to assist in providing child care and the lifting was managed with a mechanical lift system and additional nursing visits. (Finding of Fact 6, Conclusions of Law, paragraph 2).
The claimant argued the money received for providing care should be included in the claimant's average weekly wage, and the claimant should receive temporary partial disability benefits for the period of time he could not perform all of the child care services which he performed prior to the injury and surgery. However, the ALJ concluded the payments for child care services should not be included in the claimant's average weekly wage because he was not disabled from providing child care services, and because there was no actual loss of wages sustained as a result of the injury. The ALJ also held that the payments for adoptive child care were not compensation for services performed.
On review, the claimant argues the ALJ abused his discretion in refusing to include some of the child care payments in the claimant's average weekly wage. The claimant argues that because of the injury the claimant's wife was required to "provide more than her fair share of the work." Therefore, the claimant reasons that either the wife should be entitled to compensation for performing extra work or the claimant "is entitled to compensation based upon duties he performed prior to the industrial injury." We are not persuaded.
Section 8-42-102(3), C.R.S. 2001, grants the ALJ authority to use discretion in calculating the average weekly wage when the prescribed methods will not, for any reason, fairly compute the claimant's wage. This provision has been interpreted to permit the ALJ to include wages from concurrent employment where the industrial injury prevents the claimant from performing the concurrent employment. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988); St. Mary's Church and Mission v. Industrial Commission, 735 P.2d 902 (Colo.App. 1986).
Because the authority granted by § 8-42-102(3) is discretionary, we may not interfere with the order unless an abuse is shown. An abuse of discretion exists if the ALJ's order is beyond the bounds of reason, as where it is not supported by the evidence or is contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
We perceive no abuse of discretion in the ALJ's refusal to recalculate the average weekly wage by including the child care earnings. The purpose of temporary disability benefits is to compensate for an actual loss of wages during the healing period. See Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996). Here, the ALJ found the claimant remained "employed" as a child care provider after the injury, and did not lose any "wages" as a result of the injury. Thus, the ALJ was not compelled to increase the claimant's average weekly wage. Cf. Scott v. Southway Services, Inc., W.C. No. 4-347-491 (January 19, 1999).
Similarly, the ALJ did not error in refusing to award temporary partial disability benefits. Temporary partial disability benefits are based on the difference between the claimant's average weekly wage at the time of the injury and the average weekly wage during the continuance of the temporary partial disability. Section 8-42-106(1), C.R.S. 2001. Because the ALJ found the claimant continued to work, and there was no change in his compensation, the claimant is not entitled to temporary partial disability benefits.
We recognize this result contains some element of unfairness to the claimant's wife because, apparently, her work was more difficult during the claimant's disability. However, the remedy proposed by the claimant, increasing the average weekly wage and awarding temporary partial disability benefits, would result in the claimant and his wife receiving more in compensation and wages than they would have received if no injury occurred. We do not view such a result as consistent with the statute.
In light of this result, we need not consider the ALJ's conclusion that the payments for adoptive child care were not wages.
IT IS THEREFORE ORDERED that the ALJ's order dated April 30, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Robert M. Socolofsky
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 Street, Tower 3, Suite 350, Denver, CO. 80202.
Copies of this decision were mailed September 16, 2002 to the following parties:
Thomas Washburn, 7475 Chirgiton Rd., Black Forest, CO. 80908
Academy School District No. 20, 7610 N. Union Blvd., Colorado Springs, CO. 80920-3861
Liberty Mutual Insurance Co., 13111 E. Briarwood Ave., Englewood, CO. 80112
William A. Alexander Jr., Esq., 3608 Galley Rd., Colorado Springs, CO. 80909 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO. 80203 (For Respondents)
By: A. Hurtado