Opinion
W.C. No. 4-393-063
April 5, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which required them to pay temporary disability benefits after December 1, 1998. We affirm
During the period January through December 1, 1998, the claimant worked for the employer as a customer service representative. It is undisputed that the claimant sustained an occupational disease which affected her right upper extremity. As a result of the injury the claimant was medically restricted from performing the duties required in her regular employment However, the employer provided modified work. On December 2, 1998, the employer terminated the claimant's employment because of unexcused absences from work. The claimant remained unemployed until April 1999, when she obtained part-time employment with another employer
The respondents filed a General Admission of Liability which listed the claimant's average weekly wage as $373.30. The claimant objected and requested a hearing on the issues of average weekly wage and temporary disability
The ALJ calculated the claimant's average weekly wage as $391.11. In so doing the ALJ found the claimant earned bonuses of $320.50 in 1998. The ALJ determined that a fair and reasonable calculation of average weekly wage is achieved by dividing the total bonus earnings by the number of weeks the claimant worked for the employer in 1998 prior to the injury, and adding that amount to the claimant's regular weekly earnings
The ALJ also found the claimant was not at fault for the termination of her employment. Crediting the claimant's testimony, the ALJ determined that in the final incident which preceded the termination, the claimant was late for work on November 30, 1998, because she went to a doctor's appointment which her supervisor told her was scheduled for that day However, when she arrived at the doctor's office she learned that the appointment was scheduled for the following day
The ALJ further determined that in any event, the industrial injury affected the claimant's ability to obtain employment and contributed to her post-termination wage loss. Therefore, the ALJ awarded temporary total disability benefits from December 2, 1998, through March 31, 1999, and temporary partial disability benefits thereafter
I
The respondents contend the ALJ erroneously included the claimant's bonus income in calculating average weekly wage. They argue that the bonuses are not part of the claimant's "wages" because they were paid by HBO and Cinemax, not the employer Alternatively, the respondents contend the ALJ erroneously calculated average weekly wage using the entire bonus instead of dividing it by the total number of weeks the claimant worked for the employer in 1998. We perceive no reversible error
Under § 8-40-201(19)(a), C.R.S. 1999, the term "wage" is defined as "the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury." The term "wages" includes "fringe benefits" expressly enumerated in subsection 8-40-201(19)(b). See City of LaMar v Koehn, 968 P.2d 164 (Colo.App. No. 1998)
Contrary to the respondents' contention, the bonuses are not a form of "fringe benefit" for purposes of the statute. Rather, a "fringe benefit" is normally an item provided by the employer which cannot be reduced to cash and for which there is no present cash value. See Meeker v. Provenant Health Partners, 929 P.2d 26 (Colo.App. 1996), cert. denied January 13, 1997 (value of leave credit which is not forfeitable once credited is part of "money rate at which services are recompensed" because it has a present day cash value); City of LaMar v. Koehn, supra, (sick leave and vacation pay not included in average weekly wage because these benefits are subject to forfeiture if not used)
Here, the claimant testified that HBO paid her $1.50 to $2.50 for every sale of HBO broadcasting services and Cinemax paid her 50 cents per sale. (Tr. p. 22). Thus, the claimant's bonuses are akin to concurrent wages
The ALJ has wide discretion to include concurrent wages in the average weekly wage. See 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) Regardless of whether the bonuses were paid by HBO, Cinemax, or the employer, the record supports the ALJ's finding that they were part of the cash compensation the claimant received for her performance of services for the employer. Consequently, we perceive no error in the ALJ's inclusion of the bonus income in the average weekly wage
Furthermore, under § 8-42-102(3), C.R.S. 1999, the ALJ is afforded wide discretion in determining the manner or method that will fairly calculate the claimant's average weekly wage. We may not interfere with the ALJ's determination unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo.App. 1993). The standard on review of an alleged abuse of discretion is whether the ALJ's order "exceeds the bounds of reason,"such as where it is not supported by substantial evidence or is contrary to law. Coates, Reid Waldron v. Vigil, supra; Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985)
The substantial evidence standard requires that we defer to the ALJ's credibility determinations except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1067, March 16, 2000). Insofar as the evidence is subject to conflicting inferences, it is the ALJ's prerogative to determine the inference to be drawn. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985) Further, the ALJ's findings may be inferences drawn from circumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996)
The claimant's regular employment involved telephone sales of cable television services. The job also required extensive keyboard work. When the claimant was medically restricted to working no more than 4 hours a day on the telephone and keyboard, the employer accommodated her restrictions by assigning her other duties. (Tr. p. 25). The claimant testified that as a result, she was not able to earn as much in commission sales, incentive pay, or overtime. (Tr. p. 26). Similarly, the respondents' witness, Lynn Nield, admitted that the claimant's work-restrictions impacted her ability to make bonus sales. (Tr p. 79). Under these circumstances, the ALJ reasonably inferred that "virtually all" of the bonuses were earned prior to the industrial injury. (Finding of Fact 2). Consequently, the ALJ did not abuse his discretion in refusing to divide the total 1998 bonus earnings between the claimant's pre- and post-injury employment
II
The respondents also contend the ALJ erred in finding the claimant was not at fault for the termination of her employment and that the claimant's post-termination wage loss is to some degree attributable to the industrial injury. We conclude that the record supports the ALJ's finding of a causal relationship between the industrial injury and the claimant's post-termination wage loss. Therefore, we need not consider whether the ALJ correctly resolved the "fault" issue
To receive temporary disability benefits a claimant must establish a causal connection between the injury and the loss of wages. In PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo 1995), the Supreme Court held that where a claimant is injured, and is "subsequently terminated from the employment during which the injury occurs, an initial determination must be made as to whether the termination was for fault." PDM Molding, Inc. v Stanberg, 898 P.2d at 849. If the claimant is determined to be "at fault," the termination severs the causal connection between the injury and the subsequent wage loss. The claimant is then precluded from receiving further temporary disability benefits unless she reestablishes the causal connection by proof that the injury contributed "to some degree" to the wage loss. The determination of whether the industrial injury has contributed to the claimant's post-termination wage loss is a question of fact for resolution by the ALJ. Therefore, the ALJ's finding is binding if supported by substantial evidence
The respondents contend there is no evidence the claimant was medically restricted after December 2, 1998, because there are no medical records after December 1, 1998, which discuss the claimant's restrictions. We are not persuaded
On December 1, 1998, Dr. Lund restricted the claimant to "light duty," which did not require lifting over 10 to 20 pounds Further, the claimant denied that she was released to return to regular employment or that her restrictions were modified. (Tr pp. 37, 45). Under these circumstances, the ALJ reasonably inferred that the claimant was subject to continuing medical restrictions at the time of the employment termination
Moreover, the claimant testified that she applied for work with several employers and reported on the application forms that she suffered from "CTD." (Tr. pp. 29,44). She also stated that the medical restrictions preclude her from performing the type of work she performed for the employer. (Tr. p. 30). The claimant's testimony alone is sufficient to support the ALJ's determination that the industrial disability contributed to the claimant's ongoing wage loss. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant's testimony was substantial evidence that employment caused his heart attack); Savio House v Dennis, 665 P.2d 141 (Colo.App. 1983). Therefore, we may not interfere with the ALJ's award of temporary disability benefits
IT IS THEREFORE ORDERED that the ALJ's order dated July 22, 1999, is affirmed
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Bill Whitacre
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. 1999 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 April 5, 2000 to the following parties:
Marissa Cowand-Feeley, 2002 Oak Way, Colorado Springs, CO 80906
Lynn Nield, Century Communications, Inc., 2221 E. Bijou, #101, Colorado Springs, CO 80909
Freda Fitzpatrick, Adjuster, Sentry Insurance, P. O. Box 29466, Phoenix, AZ 85038
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349
(For Claimant)
Joel S. Babcock, Esq. and Karen F. Hubler, Esq., P. O. Box 22833, Denver, CO 80222
(For Respondents)
BY: A. Pendroy