Opinion
W.C. No. 4-153-716
July 24, 1997
ORDER OF REMAND
The claimant and the respondents petitioned separately for review of an order of Administrative Law Judge Gandy (ALJ), dated January 16, 1997, as corrected on February 4, 1997. We set aside the order and remand for the entry of a new order.
The claimant suffered an admitted injury on October 24, 1992, while working as a local truck driver for the respondent-employer. The respondents admitted liability for temporary disability and medical benefits.
The ALJ found that the respondent-employer hired the claimant to work 30 to 35 hours per week, at an hourly rate of $7.00 per hour, for an average weekly wage of $224. The ALJ also found that the claimant earned additional money working as a lumper for other truck drivers at a rate of $10.00 per hour. However, the ALJ determined that the additional earnings were not part of the contract for hire between the claimant and the respondent-employer. Therefore, the ALJ declined to determine the amount of concurrent earnings and include them in the average weekly wage.
Further, the ALJ found that the respondents failed, neglected or refused timely to pay medical benefits as required by a final order dated December 28, 1995. Therefore, relying on § 8-43-304(1), C.R.S. (1996 Cum. Supp.), the ALJ ordered the respondents to pay penalties at the rate of $50 per day from December 28, 1995 to November 12, 1996, the date the medical benefits were paid.
I.
On review the claimant contends that the ALJ should have included his earnings as a lumper in his average weekly wage. We conclude that the ALJ's findings are insufficient to permit appellate review, and therefore, we remand for additional findings. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
Average weekly wage is to be calculated in accordance with § 8-42-102 C.R.S. (1996 Cum. Supp.). The objective of § 8-42-102 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). Furthermore, subsection 8-42-102(3) provides that where the methods prescribed in subsections 8-42-102(2)(a)-(f) will not allow the average weekly wage to be "fairly computed," the ALJ has the discretion to calculate the average weekly wage "by such other method as will" in the opinion of the ALJ "fairly" determine the claimant's wage loss.
In St. Mary's Church Mission v. Industrial Commission, 735 P.2d 902 (Colo.App. 1986), the court held that under § 8-42-102(3) it is proper for an ALJ to include earnings from concurrent employment. Moreover, in Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988), the court upheld our conclusion that an ALJ abused his discretion in failing to include concurrent wages from unrelated jobs in computing the claimant's average weekly wage.
Nothing in St. Mary's or Dragoo limits the application of § 8-42-102(3) to circumstances where the claimant's concurrent employment is part of a single contract of hire. To the contrary, in St. Mary's the court expressly recognized that, at the time of the industrial injury, the claimant had earnings from more than one contract of hire. 735 P.2d at 904. Furthermore, in Dragoo the court expressly rejected an argument that St. Mary's only applies to concurrent earnings from employments which are similar in nature. 765 P.2d at 637.
Consequently, insofar as the ALJ excluded the claimant's concurrent earnings from the average weekly wage because the concurrent earnings were not part of the money rate the claimant's services were recompensed under the contract of hire with the respondent-employer, he erred. Furthermore, in the absence of this erroneous determination, the ALJ's findings of fact are insufficient to support his implicit determination that the claimant's wage loss can be "fairly" calculated without including his wages from the concurrent employment. See Jefferson County Public Schools v. Dragoo, 765 P.2d at 638. Therefore, we must remand the matter to the ALJ for additional findings of fact and a new order concerning the claimant's average weekly wage. Such order shall be consistent with the principles announced in St. Mary's and Dragoo.
In view of our remand, we do not consider the claimant's remaining arguments on this issue.
II.
The respondents contend that the ALJ erroneously applied § 8-43-304(1) rather than § 8-43-401(2)(a), C.R.S. (1996 Cum. Supp.), in assessing penalties for their failure to pay medical benefits. We agree.
Section 8-43-304(1), allows ALJ's to impose penalties up to $500 per day for each day the insurer:
"fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the director or panel . . . ."
Section 8-43-401(2)(a), which applies to claims arising on or after July 1, 1991, provides that:
"If any insurer or self-insured employer willfully delays payment of medical benefits for more than thirty days or willfully stops payments such insurer or self-insured employer shall pay a penalty to the division of eight percent of the amount of wrongfully withheld benefits." (Emphasis added.)
In Sears v. Penrose Hospital, ___ P.2d ___ (Colo.App. No. 96CA0909, February 20, 1997) ___ P.2d ___ (Colo.App. No. 96CA0909, February 20, 1997), the court concluded that the specific penalty provisions of § 8-43-401(2)(a) supersede the general penalty provisions of § 8-43-304(1) where the "gravamen" of the disputed conduct is the insurer's failure to pay medical benefits in a timely fashion. In so doing, the court rejected the notion that the General Assembly intended to create two penalties for the late payment of medical expenses. Rather, the court concluded that the general penalty provisions in § 8-43-304(1) apply only when the Act does not create a "specific penalty" for the violation in question.
Nevertheless, the claimant contends that § 8-43-401(2)(a) is not applicable to this claim because the "gravamen" of the disputed conduct is the respondents' failure to comply with the order dated December 28, 1995. We disagree.
Expressly relying upon Sears v. Penrose Hospital, supra, we rejected a similar argument in Ahlstrom v. Colorado Compensation Insurance Authority, W.C. Nos. 3-815-100 et. al., April 15, 1997. We adhere to the conclusions stated in Ahlstrom.
In Ahlstrom, the claimant argued that Sears is not determinative where penalties are sought for the failure to comply with a lawful order. However, we noted that Sears involved the insurer's failure to pay medical benefits following the entry of an order requiring the payment of medical benefits. Nevertheless, the court reasoned that the gravamen of the disputed conduct was the failure to pay medical benefits. Consequently, Sears reflects the court's conclusion that § 8-43-401(2)(a) governs a claim for penalties based on the failure to pay medical benefits even if the failure also constitutes a violation of a final order.
Moreover, it appears that neither we nor the "director" can "enjoin" the performance of a duty except by issuing an "order." Consequently, it makes no sense to interpret § 8-43-304(1) as creating distinct penalties for the failure to perform a "duty lawfully enjoined within the time prescribed by the director or panel" and the failure to "obey a lawful order made by the director or panel." See Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997) (if separate clauses in the same statutory scheme may be harmonized by one construction, but would be antagonistic under a different construction, the construction which results in harmony should be adopted).
There is no appreciable difference between the circumstances presented here and the facts in Sears or Ahlstrom. Therefore, we conclude that the ALJ misapplied the law in awarding penalties under § 8-43-304(1).
Under these circumstances, the matter must be remanded to the ALJ for application of § 8-43-401(2)(a). On remand, the ALJ shall make specific determinations of fact concerning whether or not the respondents "willfully" and "wrongfully" delayed the payment of medical benefits. In so doing, the ALJ shall utilize the standards established in Sears v. Penrose Hospital, supra. If the ALJ finds a willful failure to pay medical benefits, the ALJ shall impose penalties in accordance with § 8-43-401(2)(a).
IT IS THEREFORE ORDERED that the ALJ's order dated February 4, 1997, 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 July 24, 1997 to the following parties:
James C. Winters, 20056 County Rd. 452, Mineola, TX 75773
Cowen Transfer Storage Co., P.O. Box 7265, Colorado Springs, CO 80933-7265
Vanliner Insurance Co., Frontier Adjusters, P.O. Box 1612, Arvada, CO 80004-0161
Richard M. Samson, Esq., Kristin Nordeck Brown, P.O. Box 1079, Longmont, CO 80502-1079, (For the Claimant).
Karen R. Wells, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210, (For the Respondents).
BY: ________________________________