Opinion
W.C. No. 4-717-518.
December 29, 2009.
ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated July 24, 2009, that denied and dismissed the claim to have the claimant's tips included in her average weekly wage (AWW). We affirm the order in part, set it aside in part, and remand for further proceedings.
The claimant suffered a work-related injury on March 1, 2007. The claimant alleged that she received tips and that these should be included in her AWW. The claimant argued that her tips should be considered because she mailed her 2006 and 2007 tax returns to the Internal Revenue Service (IRS) the day before the June 17, 2009 hearing. The ALJ found that the claimant had not established that she actually received tips. The ALJ further determined that a tax return by federal law was not considered filed until actually received by the IRS. Therefore, because the claimant's tax returns were not actually "filed" by the time of the hearing, the ALJ concluded that they should not be considered for purposes of consideration of AWW. The claimant brings this appeal.
The claimant first contends that the ALJ erred in failing to include her alleged tips in her AWW because her uncontroverted testimony together with the testimony of her mother and a co-worker established that she earned tips. The claimant points out that although the respondents had the employer's manager available at the hearing to testify, the manager was never called to refute any testimony offered by the claimant or other witnesses called by her. We note initially that the ALJ is not required to credit testimony, even if such testimony is unrebutted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo. App. 1993).
Section 8-40-201(19)(b) C.R.S. 2009 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." The Panel has 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. The Panel reasoned that 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).
In 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) the Panel determined that the plain and ordinary meaning of the statute is that gratuities which a claimant actually receives in the course of employment may be considered in calculating the average weekly wage, but only so long as those gratuities were reported to the IRS. In Dawes the Panel found that this reading of the statute provides a check against claimants who might inflate their average weekly wage by testifying to tips which they did not actually earn, but does not allow over-reporting on tax returns as a method of increasing the average weekly wage.
The situation in Dawes is similar to the present case. In Dawes the ALJ found the claimant's testimony concerning the amount of tips she earned to be incredible and refused to include tips in the calculation of AWW. Here, the ALJ found, with record support, that the claimant merely guessed at the amount of tips she may have received and that she only mailed the tax returns in the night before the hearing so that the returns might be considered in the calculation of her AWW. Tr. at 35-38, 47. The ALJ concluded that the claimant had not met her burden of proof to establish she actually received tips in a specific amount. In our view, the record supports the ALJ's finding concerning the claimant's inability to establish that she received tips in some particular amount. Thus, we are bound by the ALJ's conclusion that the claimant failed to provide an adequate evidentiary basis for the calculation of the actual income she received from tips. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
The circumstances here are similar to those in Measho v. Brown Palace Hotel, W.C. No. 4-452-636 (June 14, 2001), where, apparently in order to have tips included the claimant's AWW, claimant's counsel mailed a letter to the IRS on the day of the hearing stating that the claimant had earned certain income. In Measho the Panel determined that the plain and ordinary meaning of § 8-40-201(19)(b) 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. The Panel found that the reported tips needed to be tied to an official income tax return rather than a self-serving, unverified communication, such as the letter from claimant's counsel. Therefore the Measho Panel affirmed the order of the ALJ that had declined to include tips in calculating the claimant's AWW. Here, as in Measho, the ALJ drew the reasonable inference that the tax returns were not filed in the normal course of reporting income to the IRS but for the purpose of establishing a higher AWW.
As in Measho we are bound by factual findings of the ALJ supported by substantial evidence in the record. Therefore, we must affirm ALJ's determination to exclude unsubstantiated claims of tips in calculating the claimant's AWW. Section 8-43-301(8), C.R.S. 2009; Christie v. Coors Transp. Co., 919 P.2d 857, 860 (Colo. App. 1995), aff'd, 933 P.2d 1330 (Colo. 1997).
The claimant also contends that the ALJ erred in concluding that the claimant's tax return was not "filed" because a return mailed outside of the prescribed time limits is not considered under federal law to be "filed" until received by the IRS. Therefore, because the return had been filed the day previous to the hearing, the ALJ concluded that the alleged tips could not be used in calculating the claimant's AWW. However, because of our conclusion that the record supports the ALJ's finding that the claimant was unable to establish that she received tips it is unnecessary to address this alternative basis for not including tips in the claimant's AWW.
The claimant finally contends that there are insufficient findings of fact to permit appellate review as to the claimant's request for inclusion of meal benefits in her AWW. The claimant argues that the uncontroverted evidence showed that she received approximately $4.00 as a discount for meals and approximately $4.00 in credit toward the value of drinks on each shift, which she contends should have been included as board in her AWW. The respondents essentially confess that the claimant raised the issue of the inclusion of meal benefits in the claimant's AWW, although they contend that the ALJ meant to exclude these benefits.
However, we do not read the ALJ's order as containing findings or conclusions as to whether the claimant established entitlement to inclusion of meal benefits in her AWW. Further, we may not conclude that the ALJ implicitly rejected the contention that such benefits should be included in the calculation of AWW. See generally Womack v. Industrial Commission; 168 Colo. 364, 451 P.2d 761 (1969) (where the findings of fact do not afford an adequate basis for review, the matter must be remanded for additional findings); see also, Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo. App. 1988) (basis for an order, including credibility determinations, must be articulated). Consequently, the matter must be remanded for that purpose. Moland v. Roadway Package System, Inc., W. C. Nos. 4-282-792 and 4-282-794 (April 21, 2003); Unrein v. New Pipeline Installations, Inc., W. C. No. 3-106-663 (April 24, 1998).
IT IS THEREFORE ORDERED that the ALJ's order dated July 24, 2009 is set aside insofar as it did not address the issue of inclusion of meal benefits in the claimant's AWW and the matter is remanded for entry of a new order on that issue.
IT IS THEREFORE FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kirksciun
____________________________________ Thomas Schrant
MICA BOYLE, SALIDA, CO, (Claimant).
SONIC DRIVE-IN, SALIDA, CO, (Employer).
GALLAGHER BASSETT SERVICES, Attn: MS ANGELA KITTS, ENGLEWOOD, CO, (Insurer).
JEFFREY S AUXIER, Attn: JEFFREY S AUXIER, ESQ., C/O: ATTORNEY AT LAW, PC, LOUISVILLE, KY, (For Claimant).
THOMAS POLLART MILLER LLC, Attn: APRIL ARMANI, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).