Opinion
W.C. No. 4-601-676.
July 12, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant's average weekly wage (AWW) based on wages earned in concurrent employment and reserved for future determination issues not decided by the order. We affirm the AWW determination and dismiss without prejudice the respondents' argument concerning the reservation clause.
On December 14, 2003, the claimant sustained an admitted low back injury while employed by respondent-employer National Product Service (National). As a result of the injury, the claimant was required to undergo surgery on April 23, 2004. She reached maximum medical improvement on July 23, 2004, with a 15 percent whole person impairment.
The respondents admitted liability for temporary total disability (TTD) benefits commencing December 15, 2004, based on an AWW of $94.15. This amount reflected the claimant's earnings in her part-time employment with National.
At the time of the injury, the claimant was concurrently employed by Enstrom's Candies Incorporated (Enstrom's), which this was full-time employment, although it began as part-time work. Further, the work at Enstrom's was seasonal and scheduled to conclude at the end of December 2003. (Tr. Pp. 12-13). The ALJ found that during the final two-week pay period at Enstrom's the claimant earned $950 in gross wages for an AWW of $475.
At hearing, the claimant contended her AWW should include the concurrent earnings from the Enstrom's employment. The ALJ agreed, finding that § 8-40-201(19)(a), C.R.S. 2004, legally compels inclusion of the Enstrom's wages in the AWW because they were part of the money rate at which the claimant's services were recompensed at the time of the injury. In support of this conclusion, the ALJ found that, although the claimant had not recently performed concurrent employment before December 14, she decided to work at Enstrom's because she needed full-time wages to support herself and her small daughter. The ALJ was persuaded the claimant would have continued to seek full-time work at Enstrom's or elsewhere after the conclusion of the seasonal job.
The ALJ was also persuaded by the claimant's testimony that the injury at National rendered her unable to perform the Enstrom's job, and impaired her capacity to obtain other employment. The ALJ noted that after December 23, the claimant was subject to medical restrictions limiting her to sedentary employment, and was totally restricted from any work between December 23 and 29, 2003, and from April 19 to June 4, 2004.
I.
On review, the respondents contend the ALJ abused his discretion by calculating the AWW based on the wages which the claimant earned in "concurrent employment" at Enstrom's. The respondents argue the ALJ abused his discretion because the Enstrom's employment was seasonal and the claimant had no "job leads or actual expectations of concurrent employment" after December 2003. The respondents also argue that because the claimant was not medically-restricted until December 23, and she continued working at Enstrom's for a brief period after the injury, the ALJ abused his discretion in concluding the claimant could not have continued the Enstrom's employment. The respondents finally argue that the ALJ erred in characterizing the Enstrom's work as full-time employment because the claimant was employed on a part-time basis until the last two weeks of the job. We are not persuaded by these arguments.
As an initial matter, we do not agree with the ALJ's legal conclusion that § 8-40-201(19)(a) mandates wages from concurrent employment always be included in the AWW. Every case which we have been able to find holds that the authority to calculate the AWW based on wages earned in concurrent employment is a function of the ALJ's discretionary authority under § 8-42-102(3), C.R.S. 2004, to customize a fair method to calculate the AWW when, because of specific circumstances, the prescribed statutory calculations will not yield a proper result. Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996); Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988); St. Mary's Church and Mission, 735 P.2d 902 (Colo.App. 1986). The Dragoo case states there is no " ipso facto rule for concurrent employments," and in some circumstances "it may be appropriate to disallow compensation for multiple wage losses." 765 P.2d at 638. Further, in Lyttle v. State Compensation Insurance Fund, 137 Colo. 212, 322 P.2d 1049 (1958), the court held that where the employment in which the claimant sustained the injury was not remunerative, wages from concurrent employment could not be used to calculate the AWW. Therefore, we infer that when § 8-40-201(19)(a) refers to the rate services are recompensed under the "contract for hire in force at the time of the injury" the statute is referring to the contract under which the claimant was performing when the industrial injury occurred.
However, we do not consider this issue dispositive for two reasons. First, the respondents do not argue on appeal that the ALJ misinterpreted § 8-40-201(19)(a) or misapplied the burden of proof by requiring them to show grounds why wages from the Enstrom's employment should not be used to calculate the AWW. Thus, any such argument has been waived by the respondents. City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo.App. 2002). Second, based on the ALJ's findings of fact we conclude that proper application of the law would have produced the same result. Therefore, any error was harmless. Section 8-43-310, C.R.S. 2004 (error disregarded unless substantial right of a party is affected).
The objective when calculating the AWW is to arrive at a "fair approximation of the claimant's wage loss and diminished earning capacity." Although the ALJ's authority to determine a fair AWW is discretionary, a court may intervene if failure to exercise such discretion results in a manifest injustice which deprives the claimant of fair compensation. Campbell v. IBM Corp., 867 P.2d 77, 82 (Colo.App. 1993).
An abuse of discretion exists when the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867, 869 (Colo.App. 2001). However, we may not interfere with the ALJ's findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), CR.S. 2004. This standard of review requires us to uphold the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
We disagree with the respondents' argument that the ALJ erred in finding the claimant's temporary earning capacity was impaired because the Enstrom's employment was seasonal and she had no concrete employment opportunity after December 2003. Temporary disability benefits are "based on the worker's loss of earning power and are designed for protection against actual loss of earnings as a result of the industrial accident." Hence a "worker disabled because of a job related injury is often significantly restricted from retaining new employment." Lunsford v. Sawatsky, 780 P.2d 76, 77 (Colo.App. 1989). A temporarily disabled claimant need not prove an unsuccessful post-injury job search in order to be eligible for TTD benefits. Black Roofing, Inc. v. West, 967 P.2d 195 (Colo.App. 1998). Finally, the question of whether an industrial injury has disabled the claimant is one of fact for the ALJ, and proof may be by lay evidence as well as medical evidence. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); City of Aurora v. Dortch, 799 P.2d 461 (Colo.App. 1990).
Here, although the claimant continued the Enstrom's employment through December 19, the ALJ found that the claimant credibly testified she could not have continued it any longer, and that the injury prevented her from seeking other work with Enstrom's or obtaining similar employment elsewhere. Indeed, the claimant stated that "sitting was the worst thing" she could do. (Tr. Pp. 11-12, 16). Moreover, the claimant was medically restricted from any employment on two occasions after she left the Enstrom's job. There is ample evidence in the record to support the ALJ's finding that the industrial injury rendered the claimant unable to earn any post-injury wages from concurrent employment. (Finding of Fact 9).
Moreover, the ALJ credited the claimant's testimony that she needed full-time work and would have sought it but for the injury. The weight to be accorded that testimony was for the ALJ. The fact the claimant did not actually have a job at the time the Enstrom's employment ended did not preclude the ALJ from determining that her post-injury earning capacity was impaired because the claimant could not have obtained other employment. Black Roofing, Inc. v. West, supra.
Neither did the ALJ did err in calculating the Enstrom's wages based on the claimant's last pay period. The ALJ was persuaded that the claimant had "worked up" to full-time employment, and intended to continue working full-time after the Enstrom's job ended. Thus, the ALJ properly exercised his discretion to fairly calculate the amount of the Enstrom's AWW.
In light of the ALJ's findings of fact, it is implicit that he would find that a fair calculation of the AWW requires inclusion of the Enstrom's wages in the claimant's AWW. The ALJ was persuaded that the claimant intended to continue working full-time to support her child and was prohibited from doing so by the industrial injury. These findings of fact lead to the conclusion that the ALJ believed it would be manifestly unfair to exclude the Enstrom's wages from the AWW. Thus, a remand is not necessary even though the ALJ's statement of the law was incorrect. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings necessarily implied by the order).
II.
The respondents contend the ALJ erred by including in the order the clause reserving for future determination those issues not decided. The respondents' concern is that this clause has the effect of leaving the claim open contrary to their interpretation § 8-43-203(2)(d), C.R.S. 2004.
However, the reservation clause does not award or deny the claimant any benefits or penalties. Instead, the respondents seek an advisory ruling on the effect of this clause in the event the claimant should later seek additional benefits. Because the clause does not award or deny any benefits or penalties, and because the consideration of the clause is not necessary to any substantive issue raised on appeal, we conclude that this aspect of the order is not currently subject to review. Section 8-43-301(2), C.R.S. 2004; Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003); Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989) (order may be partially final and reviewable and partially interlocutory); Miera v. Lockheed Martin Corp., W.C. No. 4-498-972 (December 31, 2003) (in case where ALJ found that alleged injury was not caused by employment, claimant's argument that this finding would not preclude opposite conclusion in future litigation on permanent disability benefits was not final and reviewable because argument was hypothetical and did not constitute an award or denial of benefits).
IT IS THEREFORE ORDERED that the respondents' petition to review the ALJ's order dated December 17, 2004, is dismissed without prejudice insofar as the petition to review disputes the propriety of the reservation clause.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Dona Halsey
Jackie Coleman, Clifton, CO, National Product Service, Irving, TX, Commerce Industry Insurance Company, c/o Dawn Chambers, AIG Claim Services, Phoenix, AZ, David B. Mueller, Esq., Grand Junction, CO, (For Claimant).
Kent L. Yarbrough, Esq., Denver, CO, (For Respondents).