Opinion
W.C. No. 4-662-067.
January 11, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated September 7, 2006, that apportioned the cost of knee surgery and determined the claimant's average weekly wage (AWW) to be $575.42, rather than $787.20, as proposed by the claimant. We affirm.
Several of the ALJ's findings of fact are summarized as follows. The claimant loads and unloads aircraft. He has several personal health problems that include chronic obstructive pulmonary disorder and diabetes. In 1994, he sustained a non-industrial injury to his left knee, which resulted in arthroscopic surgery. However, he had no problems with his left knee until he suffered an industrial injury on February 24, 2001. The claimant underwent another arthroscopic surgery on his left knee and was released to his full work duties on October 22, 2001. The claimant lost no time from work on account of his left knee until he sustained another industrial injury to it on September 5, 2005. The compensability of that injury was the subject of a previous hearing. On February 7, 2006, the respondent admitted for temporary total disability benefits based on an AWW of $575.42, as calculated by the respondent according to the claimant's average earnings for twelve weeks prior to his last industrial injury.
Various physicians examined the claimant concerning the condition of his left knee. Dr. Stull, who had performed the initial knee arthroscopy on the claimant, opined that the claimant developed arthritis because of surgeries related to the 1994 and 2001 injuries. He also opined that he claimant's arthritis existed prior to his last injury on September 5, 2005, but was aggravated by the last injury. Dr. Stull favored replacing the claimant's knee. Dr. Sabin determined that the claimant had osteoarthritis in the left knee prior to his last injury. However, Dr. Sabin opined that the last injury may have accelerated the claimant's need for a total knee arthroplasty. Dr. Kawasaki determined that the claimant's preexisting osteoarthritis caused greater than 50% of his need for a total knee replacement. The claimant's preexisting osteoarthritis resulted from the claimant's knee injuries and, also, from natural aging changes. The claimant's osteoarthritis from his prior industrial injury in 2001 contributed more than 50% of his need for a knee replacement, which the ALJ interpreted to proximately cause 50% of his need for the knee replacement surgery. The claimant's last injury also contributed 50% of the claimant's need for a total knee replacement.
At the time of his injury on September 5, 2005, the claimant earned $19.68 per hour, which would result in wages of $787.20 for a 40-hour work week. However, the claimant did not always work 40-hour weeks for the twelve-week period preceding his last injury. The reduced hours worked included lost time due to his diabetes, which was not shown to have improved to the point that the claimant could be expected to maintain a 40-hour work week. An AWW of $575.42 more fairly approximates the claimant's wage loss due to his last injury.
Based on these findings, the ALJ concluded that the claimant's AWW should be $575.42. He also concluded that the cost of performing surgery to replace the claimant's left knee should be apportioned between the claimant's 2001 and 2005 injuries, and ordered the respondent to pay 50% of the surgery based on the 2005 injury.
The claimant asserts that the ALJ erred by applying the case of Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004) and apportioning liability for medical treatment. Instead, the claimant argues that the ALJ should have declined to apportion liability for treatment between the claimant's industrial injuries and, in support of his argument, cites the case of Resources One, LLC v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. June 15, 2006). However, we conclude that the apportionment of liability for the claimant's surgery is proper under the circumstances. In Resources One, the Colorado Court of Appeals addressed a situation in which the employer sought to apportion liability for benefits between an industrial injury and a preexisting medical condition, the effective result of which would be to distribute liability between the employer and the claimant. In this case, the ALJ found that the claimant's preexisting osteoporosis due to injuries and natural aging, resulted in the claimant's need for a left knee replacement and apportioned liability for a surgery between the claimant's two industrial injuries. See Duncan v. Industrial Claim Appeals Office, supra; University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); State Compensation Insurance Fund v. Industrial Commission 698 P.2d 807 (Colo.App. 1985). Moreover, we reject the claimant's argument that apportionment of liability for medical benefits between the claimant's two industrial injuries is improper because this case concerns only one employer. See, e.g., Tri-State Insurance Co. v. Industrial Commission, 151 Colo. 494, 379 P.2d 388 (1963) (apportioning single employer's liability for benefits between different insurers); Century Indemnity Co. v. Klipfel, 99 Colo. 213, 61 P.2d 842 (1936) (same).
The claimant also disputes the propriety of the ALJ fashioning the claimant's AWW to reflect his working circumstances prior to his last injury. The AWW is ordinarily calculated based on the claimant's earnings at the time of the injury. § 8-40-201(19)(a), C.R.S. 2006; § 8-42-102(2), C.R.S. 2006. However, § 8-42-102(3) grants the ALJ substantial discretion to modify the AWW if, for any reason, the statutorily prescribed methods will not fairly compute the wage in view of the particular circumstances of the case. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). The overall objective in calculating the AWW is to arrive at "fair approximation of the claimant's wage loss and diminished earning capacity." Campbell v. IBM Corp., 867 P.2d 77, 82 (Colo.App. 1993).
An abuse of discretion is not shown unless the ALJ's determination of the AWW is "beyond the bounds of reason," as where it is unsupported by the evidence or contrary to applicable law. Pizza Hut v. Industrial Claim Appeals Office, supra. The pertinent findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This standard of review requires that we defer to 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). The claimant asserts that the record reflects the claimant was off work for two weeks prior to his last injury at his employer's behest in order to investigate the claimant's use of oxygen, notwithstanding the claimant's ability to work 40-hour weeks at that time. He further asserts that, contrary to the ALJ's findings, the claimant lost time at work due to his diabetes only before the twelve-week period upon which the ALJ based his computation of the claimant's AWW. However, it appears that there is support in the record for the ALJ's computation of the claimant's AWW.
Regarding the claimant's diabetic condition, the ALJ merely found that the claimant "lost time from work during the year prior to his injury" due to his diabetes. Findings of Fact, Conclusions of Law, and Order at 4, ¶ 7. The significance attached to the claimant's diabetic condition by the ALJ was that the ALJ was not persuaded the claimant's diabetes had improved to where he could maintain a 40-hour work week. The claimant testified to the effect that prior to his last injury, but during 2005, he was off work for different periods of time due to his diabetes. Tr. at 16-17. He also testified about being off work due to the employer investigating his use of oxygen. Tr. at 17-18. Moreover, the respondent employer introduced into evidence payroll records showing that the claimant earned varying amounts of pay during several months preceding his last industrial injury. Exhibit L. We find no abuse of discretion under the circumstances and, therefore, decline to disturb the ALJ's calculation of the claimant's AWW.
IT IS THEREFORE ORDERED that the ALJ=s order dated September 7, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D. Baird
______________________________
Thomas Schrant
Terry Blacke, 2774 South Kenton Court, Aurora, CO, Gallagher Bassett Services, Inc., Jenny Beck, P.O. Box 4068, Englewood, CO, Robert W. Turner, Esq., 1120 Lincoln Street, Suite 1001, Denver, CO, (For Claimant)
John H. Sandberg, Esq., 3595 South Teller Street, Suite 407, Lakewood, CO, (For Respondents)