Opinion
W.C. No. 4-300-546
July 10, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ determined the average weekly wage. We affirm.
On January 13, 1996, the claimant began working as a laborer for Falcon Concrete Inc. (Falcon). On January 15, 1996, the claimant suffered an initial work-related foot injury which rendered him temporarily totally disabled. The claimant returned to work on April 13, 1996. On June 6, 1996 the claimant was laid off due to a lack of work.
The claimant suffered a second compensable injury on May 1, 1996, and it is this injury which is the subject of this claim. Falcon's First Report of Injury states that, at the time of this injury the claimant was working 8 hours a day, 5 days a week at a rate of $12 per hour, and had an average weekly wage of $480.
However, the ALJ found that the claimant was not guaranteed 8 hours of work per day nor 40 hours per week. Further, the ALJ determined that the claimant worked all the hours Falcon made available to him between April 13, 1996 and June 6, 1996, but did not work the same number of hours each week. Under these circumstances, the ALJ determined that the best evidence of the claimant's actual earnings at the time of the injury was the average number of hours the claimant worked per week over the entire course of his employment for Falcon. (Finding of Fact 6). The ALJ found that the average was 22.2 hours per week. Therefore, the ALJ calculated the average weekly wage to be $266.40 (22.2 hours per week at $12.00 per hour).
On review, the claimant contends that he was earning an average weekly wage of $480 before the January 15 injury. He asserts that due to the effects of the January 15 injury he earned less at the time of the May 1 injury. Under these circumstances the claimant argues that the ALJ should have determined his average weekly wage to be $480. In support the claimant relies upon § 8-42-102(3), C.R.S. (1996 Cum. Supp.) , and Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). We are not persuaded.
Section 8-42-102(2)(d), C.R.S. (1996 Cum. Supp.), provides that where the claimant is paid by the hour, the claimant's average weekly wage shall be determined by multiplying the hourly rate by the number of hours per day the claimant was working at the time of the injury. However, § 8-42-102(3) provides that, if "for any reason" § 8-42-102(2)(d) will not "fairly" determine the claimant's average weekly wage, the ALJ may compute the average weekly wage "by such other method" as will fairly determine the claimant's wage loss and diminished earning capacity. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
In Coates, Reid Waldron v. Vigil, supra, the Supreme Court held that former § 8-42-104(1), C.R.S. (1990 Cum. Supp.), gave the ALJ discretion under § 8-42-102(3) to calculate a claimant's average weekly wage based on earnings which the claimant was receiving at the time of a prior injury. The Supreme Court concluded that where the claimant sustained an industrial injury which impaired her temporary earning capacity, and then suffered a second industrial injury, it was unfair to calculate the average weekly wage for the second injury based on the reduced earnings at the time of the second injury. Therefore, the court held that the ALJ had discretion to base the average weekly wage on the claimant's earnings at the time of the prior industrial injury.
However, in Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, 870 P.2d 634 (Colo.App. 1994), the Court of Appeals concluded that the reasoning Vigil is not applicable to injuries which occur after July 1, 1991. The court held that the 1991 amendments to § 8-42-104(1) require that, in the event of successive industrial injuries, the claimant's average weekly wage for the second injury must be based upon the claimant's earnings at the time of the second injury. See 1991 Colo. Sess. Laws, Ch. 219 at 1304.
Because this claim is governed by the 1991 amendments, we reject the claimant's contention that the applicable law allowed the ALJ to calculate his average weekly wage for the May 1 injury based on his earnings at the time of the January 15 injury.
Further, even if Coates were applicable, this claim is distinguishable. Here, the ALJ was not persuaded that the January 15 injury diminished the claimant's temporary earning capacity after April 13. Rather, the ALJ determined that the claimant worked less than 40 hours per week due to a lack of work, and this finding is amply supported by the testimony of the claimant and the employer's witness, Tom O'Hearn. (Tr. pp. 18, 20, 25, 37-38).
Moreover, in determining the claimant's average weekly wage at the time of a second industrial injury, the ALJ may exercise his discretion under § 8-42-102(3). The claimant's arguments notwithstanding, the ALJ implicitly applied § 8-42-102(3) insofar as he calculated the claimant's average weekly wage based upon the average number of hours the claimant worked per week between January and June 1996. See R.J.S. Painting v. Industrial Commission, 732 P.2d 239 (Colo.App. 1986) (discretionary method applied where claimant hired "full-time" but actually worked an average of less than 40 hours a week).
We may not interfere with the ALJ's application of § 8-42-102(3) in the absence of an abuse of discretion. Coates, Reid Waldron v. Vigil, supra; R.J.S. Painting v. Industrial Commission, 732 P.2d 239 (Colo.App. 1986). Further, we cannot say that the ALJ abused his discretion if his determination of the claimant's average weekly wage is supported by substantial evidence in the record and the applicable law. Coates, Reid Waldron v. Vigil, supra.
We conclude that the ALJ's determination of the claimant's average work week is supported by substantial evidence in the record and the applicable law. Therefore, we perceive no abuse of discretion.
The fact that the Employer's First Report of Injury lists the claimant's average weekly wage as $480 based upon a 40 hour work week merely reflects a conflict in the evidence. The ALJ expressly recognized the conflict, and within his sole prerogative resolved the conflict against the claimant by crediting O'Hearn's testimony that claimant was not guaranteed a 40 hour work week. (Finding of Facts 5, 6; Tr. p. 38).
IT IS THEREFORE ORDERED that the ALJ's order dated December 19, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed July 10, 1997 to the following parties:
Rafael Diaz, 1590 Beeler St., #9, Aurora, CO 80010
Falcon Concrete, 2660 S. Pitkin Way, Aurora, CO 80013-1556
Sundee Sweet, TIG Insurance Company, 6400 S. Fiddlers Green Cir., Englewood, CO 80111
Nancy Rogstad, TIG Insurance Company, P.O. Box 17005, Denver, CO 80217
Robert Koehler, Esq., 681 Grant St., Denver, CO 80203, (For the Claimant).
Lydia Daugherty, Esq., 6400 S. Fiddlers Green Cir., Ste. 1270, Englewood, CO 80111, (For the Respondents).
BY: ________________________________