FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Snider (ALJ) to the extent the ALJ declined to include tips in calculating the claimant's average weekly wage (AWW). We affirm.

The claimant was employed as a valet driver at the respondent employer's hotel. The claimant was paid an hourly wage, but alleged his AWW should also include $1,250 in tips which he received from January 1, 2000, through February 5, 2000.

The ALJ found the hotel maintained a "system" by which valets could report tips, but the claimant did not report any tips from January 1 through February 5. However, the ALJ found that on July 17, 2000, the date of the hearing, claimant's counsel mailed a letter to the Internal Revenue Service (IRS) stating the claimant earned $1,250 from January 1 through February 5, 2000. This communication was on counsel's letterhead, and "not on an income tax return or on any other IRS form regularly used for the reporting of income."

Under these circumstances, the ALJ interpreted § 8-40-201(19)(b), C.R.S. 2000, as prohibiting inclusion of the tips in the claimant's AWW. Specifically, the ALJ ruled the letter mailed by claimant's counsel could not be construed as tips reported to the IRS "for purposes of filing federal income tax returns."

The claimant filed a timely petition to review stating that he accepted the ALJ's findings of fact, but alleging the findings do not support the ALJ's refusal to include tips in the AWW. The claimant did not file a brief in support of the petition to review. Consequently, the effectiveness of our review is limited.

Section 8-40-201(19)(b) states the term "wages" shall include "gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns." (Emphasis added). We have previously held the plain and ordinary meaning of this statute is that gratuities which the claimant receives in the course of employment may be considered in calculating the AWW, but only if those gratuities were reported to the IRS by the claimant, or by some other party (such as the employer) on behalf of the claimant. We reasoned the apparent purpose of the requirement that tips be reported to the IRS is to discourage fraud by requiring reliable documentary evidence tending to corroborate the claimant's testimony concerning the amount of tips received. Brimmerman v. Denny's, W.C. No. 4-396-902 (April 5, 2000); Dawes v. Colorado Cabana, Inc., W.C. No. 4-283-730 (August 11, 1997), aff'd., Dawes v. Industrial Claim Appeals Office, (Colo.App. No. 97CA1418, March 5, 1998).

Applying the same logic here, the plain and ordinary meaning of the statute is that when tips have been reported to the IRS, the purpose or objective of the report must be related to the filing of a federal income tax return. This requirement serves to discourage fraud by mandating that the reported tips be tied to an official income tax return rather than a self-serving, unverified communication, such as that present here. Thus, we perceive no error in the ALJ's order.

IT IS THEREFORE ORDERED that the ALJ's order dated August 14, 2000, 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. 2000. 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 June 14, 2001 to the following parties:

Dawit Measho, 1998 Beeler St., #8, Aurora, CO 80010

Brown Palace Hotel, 321 17th St., Denver, CO 80202

Mid-Century Insurance Co., Farmers Insurance Exchange, 7535 E. Hampden Ave., #200, Denver, CO 80231

William J. Macdonald, Esq., 1890 Gaylord St., Denver, CO 80206 (For Claimant)

Christian M. Lind, Esq., Orchard Place II — Suite 106, 5975 Greenwood Plaza Blvd., Greenwood Village, CO 80111 (For Respondents)

BY: A. Pendroy