Opinion
W.C. No. 4-441-371
August 30, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) insofar as the ALJ refused to increase the claimant's average weekly wage for disability benefits due after January 20, 2000. We affirm.
On October 8, 1999, the claimant suffered a compensable back injury while working as a sales person. As a result of the injury the claimant was rendered temporarily totally disabled. The claimant returned to modified employment on October 20, 1999. On January 20, 2000, the claimant was again removed from work.
At the time of the injury the claimant was paid $9 per hour plus a commission on the volume of auto parts sold. Exercising his discretionary authority under § 8-42-102(3), C.R.S. 2000, the ALJ determined that the claimant's average weekly wage is fairly calculated based on wages received by the claimant from January through September 1999. Therefore, the ALJ found the claimant's average weekly wage was $676.66.
Between November 15, 1999, and January 20, 2000, the claimant worked more hours than he worked prior to the injury, and earned an average of $732.13 per week. Under these circumstances, the claimant requested that disability benefits due and payable after January 20, 2000, be based upon an average weekly wage of $732.13. However, the ALJ found the claimant did not receive an hourly raise or an increase in the percentage of commission generated by the sale of automotive parts during any period of disability from the industrial injury. The ALJ also determined that the increased earnings during the period of November 16, 1999 to January 15, 2000, reflected a natural fluctuation in the claimant's wages, and not an actual increase in wages. Therefore, the ALJ refused to increase the average weekly wage effective January 20, 2000.
Relying on Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), and our conclusions in Lawrence v. HVH Transportation, W.C. No. 4-398-905 (October 18, 1999), the claimant contends the ALJ abused his discretion in refusing to increase the average weekly wage commencing January 20, 2000. The claimant argues he was not required to prove he received a "raise," but only that he earned more during a subsequent period of disability before the ALJ is compelled to recalculate average weekly wage. We disagree.
Initially, we note that the claimant's Designation of Record includes the "entire Division of Labor file." The record transmitted to us for review is apparently the file maintained by the Division of Administrative Hearings. Furthermore, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ consider the entire Division of Labor file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); cf. Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have restricted our review to the Division of Administrative Hearings file.
If for any reason none of the statutorily prescribed methods of computing the claimant's average weekly wage renders a fair computation of wages, the ALJ has discretionary authority under § 8-42-102(3), to use an alternative method to determine the average weekly wage. Campbell v. IBM Corp., supra. This discretionary authority includes the power to increase the claimant's average weekly wage for periods of disability which occur subsequent to the initial period of disability where "manifest injustice" would result if the claimant's benefits are calculated based on lower earnings at the time of the injury. Campbell v. IBM Corp., supra.
The average weekly wage is generally determined by the wage the injured worker received at the time of the injury. Section 8-42-102(2), C.R.S. 2000. We may not interfere with the ALJ's determination of the average weekly wage in the absence of a clear abuse of discretion. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) ; Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). The standard for 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 facts in Campbell involved a claimant who suffered three periods of temporary disability. The claimant's average weekly wage was greater at the time of each subsequent period of disability. Under these circumstances, the court concluded that it would be unjust to calculate the claimant's "disability benefits in 1986 and 1989 on her substantially lower earnings in 1979."
In Lawrence v. HVH Transportation, supra, an ALJ found on substantial evidence that the claimant's contract of hire included a $.25 raise every quarter for the first year of the claimant's employment. Therefore, the post-injury raises were included in calculating the claimant's average weekly wage.
Here, unlike the facts in Campbell and Lawrence, the ALJ was not persuaded there was any increase in the claimant's wages. To the contrary, the ALJ determined that the claimant's earnings regularly varied due to the commission component of his wage and the number of hours worked. Therefore, the ALJ was not persuaded that the "hand-picked" eight week period cited by the claimant reflected an actual wage increase after the injury. (Conclusion of Law 2). The ALJ's findings are supported by substantial evidence in the record. Therefore, the case is factually distinguishable from the circumstances presented in Campbell and Lawrence.
Furthermore, the overall purpose of the statutory scheme on average weekly wage is to "arrive at a fair approximation of the claimant's wage loss and diminished earning capacity." Campbell v. IBM Corp., supra. In other words, the purpose is to determine the amount of wages the claimant would have earned but for the industrial disability.
Here, the ALJ implicitly determined the claimant's diminished earning capacity after January 20, 2000 was not reflected by the increased earnings between November 16, 1999, and January 15, 2000, because the increase was temporary in nature. In fact, the ALJ found the claimant earned less from January 24, 2000 to April 15, 2000, than he did during the eight week period after November 16, 2000.
The ALJ's determinations are supported by substantial evidence in the record and, therefore, are binding on review. Section 8-43-301(8), C.R.S. 2000. Accordingly, we cannot say the ALJ abused his discretion by inferring that the increased earnings during the eight period between November 16 and January 15 were insufficient to measure the claimant's diminished earning capacity after January 20, 2000. See Pizza Hut v. Industrial Claim Appeals Office, supra; Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985) (if two equally plausible inference may be drawn from the evidence, it is the ALJ's sole prerogative to determine the inference to be drawn).
IT IS THEREFORE ORDERED that the ALJ's order dated March 9, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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 August 30, 2001 to the following parties:
Larry Shaw, 3669 G 7/10 Road, Palisade, CO 81526
Ed Bozarth #1 Chevrolet, P. O. Box 101621, Denver, CO 80250-1621
Kim Bosse, Fremont Compensation Insurance Group, P. O. Box 70015, Boise, ID 83707
Amy K. Eaton, Esq., P. O. Box 4859, 225 N. 5th St., #1010, Grand Junction, CO 81502 (For Claimant)
Lynn D. Petersen, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)
BY: A. Pendroy