Opinion
W.C. No. 4-726-042.
April 10, 2008.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated November 1, 2007, that ordered them to pay the claimant temporary disability benefits based on the ALJ's calculation of the average weekly wage (AWW). We affirm.
The ALJ accepted the parties' stipulations, including the time periods for which the claimant was entitled to temporary total disability and temporary partial disability benefits, and proceeded to adjudicate the contested issue of what should be the claimant's AWW.
The ALJ's findings of fact are summarized as follows. The claimant worked as a day laborer for the respondent employer on a "one-shift basis," with no promise of future employment. He was injured while working for the respondent employer on May 10, 2007. The claimant earned $32 at the rate of $8 an hour for about four hours of work that he performed for the respondent employer on the day of his injury. Earlier that day and prior to his injury, the claimant had worked for Mullis Construction for two hours. The claimant had no intention of continuing to work for the respondent employer after May 10, 2007. Instead, the claimant had full-time work for another employer available to him starting late in May 2007, and he intended to work full-time accordingly. The claimant received $32 per week from May 17, 2007 through June 24, 2007 for modified work that the claimant performed for the respondent employer. On June 24, 2007, the claimant was released for regular work duties.
The claimant worked for Mullis Construction from April 23, 2007, to May 10, 2007. Before that, the claimant worked for Colorado West Mental Health Center from December 2006 through April 17, 2007. From January 1, 2007, through May 10, 2007, the claimant earned an average of $410.76 per week, based on earnings of $7,628.95. He earned an average of about $25,000 a year for each of the past five years, which equals $480.77 per week. The ALJ determined that the claimant's AWW could not be fairly computed based upon his remuneration at the time of his injury. He therefore computed a daily rate of pay based on the claimant's earnings from January 1, 2007, through May 10, 2007. The ALJ multiplied the resulting daily rate of $58.68 by seven days to calculate an AWW of $410.76, which is the amount of the claimant's average weekly earnings for the relevant time period as noted above.
Under the circumstances of the case at hand as found by the ALJ, we are not persuaded that the ALJ erred by computing the claimant's AWW on the basis of his previous earnings. An injured worker's AWW is generally based upon his remuneration at the time of injury. Section 8-42-102(2), C.R.S. 2007. However, "if for any reason this general method will not render a fair computation of wages, the administrative tribunal has long been vested with discretionary authority to use an alternative method in determining a fair wage." Campbell v. IBM Corp., 867 P.2d 77, 82 (Colo.App. 1993). This is because " [t]he entire objective of wage calculation is to arrive at a fair approximation of the claimant's wage loss and diminished earning capacity." Id. The statute authorizes an AWW to be computed "in such other manner and by such other method as will . . . fairly determine" the claimant's AWW for reasons that include when the claimant "has not worked a sufficient length of time to enable earnings to be fairly computed." § 8-42-102(3), C.R.S. 2007. We review the ALJ's use of an alternative computation of the claimant's AWW under the abuse of discretion standard of review. An abuse of that discretion is only shown where the order "is beyond the bounds of reason, that is, where it is unsupported by the evidence to contrary to law." Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867, 869 (Colo.App. 2001). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). Application of this standard requires that we defer to the ALJ's credibility determinations and his assessment of the sufficiency and probative weight of the evidence.
The respondents maintain on appeal that the ALJ erred by failing to base the claimant's AWW on his actual rate of pay at the time of his injury. According to the respondents, the claimant's AWW should be $64, based on the assumption that the claimant would have completed eight hours of work for the week at the rate of $8 an hour if he had not been injured. In support of their assertions the respondents argue, as they did before the ALJ, that the outcome of this matter is controlled by the Colorado Court of Appeals decision in Dugan v. Industrial Comm'n, 690 P.2d 267 (Colo.App. 1984). In Dugan, the claimant worked previously as a carpenter earning $17.60 an hour. He was laid off and subsequently earned $3 an hour as a welder. The claimant was injured his second day on the new job. The ALJ exercised his discretion in fashioning an AWW based on the claimant's prior earnings, which the Industrial Commission reversed. The court upheld the Industrial Commission's determination that the injured worker's AWW was $120 per week based on his hourly pay of $3. The court noted that there was "no indication that claimant would have either been paid more than the $3.00 per hour or have quit his employment within a short period of time." Dugan, 690 P.2d at 269.
The ALJ rejected the respondents' contention that the claimant's AWW should be computed solely according to the terms of his contract with the respondent employer by which the claimant was hired for a term of one day at the rate of $8 per hour. The ALJ made the corresponding finding that the respondent employer hired the claimant pursuant to a daily contract of hire, but declined to limit the claimant's AWW to such employment "because claimant worked for such a short period of time for employer." Findings of Fact, Conclusions of Law, and Order at 2-3, ¶¶ 6, 9. The ALJ noted cases in which AWW calculations looked both backward and forward from the date of injury. See, e.g., Employer's Mutual Ins. Co. v. Industrial Comm'n, 85 Colo. 374, 275 P. 939 (Colo. 1929); Pizza Hut v. Industrial Claim Appeals Office, supra.
The respondents renew their assertion that any reference to the claimant's expectations for future employment and earnings are merely speculative and may not provide the basis for the claimant's AWW. The only reference made by the ALJ to earnings by the claimant after his injury on May 10, 2007, is to pay in the amount of $32 a week from the respondent employer for some work with modified duties that the claimant performed during May and June 2007. The ALJ did not include those earnings in his computation of the claimant's AWW. Instead, the ALJ credited the claimant's testimony that he had full-time work available to him beginning later in May 2007. It is true that there are no corresponding findings regarding the claimant's full-time earnings subsequent to the claimant's work injury. However, in our view the absence of findings regarding the claimant's earnings after his release to regular duties on June 24, 2007, does not require a different result on review. There is evidence in the record to support the ALJ's findings concerning the claimant's intentions and expectations regarding post-injury employment. The claimant testified to the effect that he planned to work again full-time for Mullis Construction, who had a "big job coming up" around the end of May, but did not do so because of his back injury. Tr. at 33, 35-36. This evidence provides sufficient support for the ALJ's inferences regarding an AWW that fairly approximates the claimant's temporary wage loss.
The respondents assert that the ALJ erred by crediting the claimant's intentions about future employment as evidence of earnings. As we read the ALJ's order, he considered the claimant's expectations of future earnings in support of his finding that the claimant did not intend to limit his earnings to the amount of $32 hours a week that the claimant had earned through the respondent employer. In our view this is a reasonable inference from the record and we may therefore not disturb it.
More importantly, the ALJ based the claimant's AWW on his actual earnings just prior to his injury. The ALJ's findings indicate that the claimant earned over $7,600 between January 1, 2007 and May 10, 2007, and that the claimant anticipated earning more than $32 a week in the future. The claimant's actual earnings prior to his injury are also supported by the record. Exhibit 6. As noted by the respondents, we have previously affirmed an award of benefits based on an AWW computed on the basis of a claimant's actual earnings during a 12-week period preceding the injury. Reynolds v. Labor Ready, W.C. No. 4-632-128 (December 30, 2005).
The record contains evidence of the claimant's remuneration paid during the four-month period immediately preceding his injury and the ALJ calculated the AWW based on those figures. We cannot say the ALJ abused his discretion by not calculating the AWW based on a per diem basis as outlined in § 8-42-102(2)(c) and requested by the respondents. In addition, the ALJ's method of calculating the claimant's AWW in the circumstances of this case furthered the goal of determining a fair wage and was not beyond the bounds of reason. We therefore find no basis on which to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order issued November 1, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Curt Kriksciun
STEVEN BERG, 472 28 1/2 ROAD, GRAND JUNCTION, CO, (Claimant)
LABOR READY, Attn: RICK ABERNETHY, GRAND JUNCTION, CO, (Employer)
INSURANCE COMPANY FOR THE STATE OF PENNSYLVANIA, Attn: CANDI J. LINDLEY, C/O: ESIS PORTLAND WC CLAIMS, TAMPA, FL, (Insurer)
WITHERS SEIDMAN RICE MUELLER, PC, Attn: CHRISTOPHER SEIDMAN, ESQ., GRAND JUNCTION, CO, (For Claimant)
CLIFTON, MUELLER BOVARNICK, PC, Attn: CHERYL A MARTIN, ESQ., , GRAND JUNCTION, CO, (For Respondents)