Opinion
W.C. No. 3-709-842
August 1, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Erickson (ALJ), which determined the claimant's average weekly wage. We affirm.
The facts are undisputed. The claimant sustained a compensable injury in June 1983. The parties stipulated that, at that time, the claimant's average weekly wage was three hundred dollars.
Subsequently, the respondents agreed to a voluntary reopening of the claim because the claimant needed surgery. At the time of the 1995 reopening, the claimant was earning six hundred and sixty dollars per week.
Under these circumstances, the ALJ concluded that, for periods of disability after the reopening, the claimant's average weekly wage should be calculated as six hundred and sixty dollars per week. The ALJ stated that it would be "manifestly unjust" to base the claimant's disability benefits "in 1995 on his substantially lower earnings in 1983." In support of this conclusion, the ALJ cited Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
On review, the respondents contend that the ALJ should have based the claimant's 1995 disability benefits on his 1983 average weekly wage. In support of this proposition, the respondents argue that § 8-42-102(2), C.R.S. (1994 Cum. Supp.), and § 8-40-201(19)(a), C.R.S. (1994 Cum. Supp.), require the ALJ to base the claimant's average weekly wage on his earnings "at the time of the injury." The respondents also argue that the ALJ's order is inconsistent with the decision in Dugan v. Industrial Commission, 690 P.2d 267 (Colo.App. 1984).
The respondents' arguments notwithstanding, both the Supreme Court and the Court of Appeals have held that § 8-42-102(3), C.R.S. (1994 Cum. Supp.), affords the ALJ discretionary authority to calculate the average weekly wage based on earnings other than those the claimant received at the time of the injury if equity so demands. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Campbell vs. IBM Corp., supra.
Moreover, we find no error in the ALJ's reliance on Campbell v. IBM Corp. In Campbell, the court stated the following:
"Although the authority under § 8-42-102(3) is discretionary, we believe it would be manifestly unjust to base claimant's disability benefits in 1986 and 1989 on her substantially lower earnings in 1979. Therefore, to compensate fairly for the claimant's actual loss of income, her average weekly wage should be determined based on her earnings at the time of each period of disablement."
The facts in this case are indistinguishable from those in of Campbell v. IBM Corp. Therefore, we conclude that the ALJ did not abuse his discretion in calculating the claimant's average weekly wage, for the 1995 disability, based on the claimant's 1995 earnings. Coates, Reid Waldron v. Vigil, supra.
The respondents seek to distinguish Campbell because, in Campbell, the claimant suffered from an occupational disease rather than an injury. The respondents also note that in Campbell the claimant continued to work for the same employer, while the claimant in this case changed employers. However, we do not believe these distinctions are significant. As we noted in Dennon-McCoy v. Larimer County, W.C. No. 3-762-149, June 8, 1994, the Campbell court expressly stated that its determination of the average weekly wage was not predicated upon any distinction between occupational diseases and accidental injuries. See Campbell v. IBM Corp., 867 P.2d at 81. Further, the Campbell court relied on the discretionary authority of the ALJ to effect an equitable result, not the existence of an occupational disease.
Neither do we believe that Campbell is distinguishable based on the fact that Campbell involved a single employer. The objective in Campbell was to calculate the claimant's average weekly wage in order fairly to calculate the claimant's "actual loss of income." The claimant's "actual loss of income" does not depend on whether the claimant was employed by one or more employers subsequent to the injury.
Neither do we agree with the respondents that Dugan v. Industrial Commission, supra, is dispositive. In Dugan, the highest earnings were in the employment which the claimant held prior to the employment in which the injury occurred. The Dugan court stated that there was "no indication that claimant would have either been paid more than $3.00 per hour or have quit his employment [which he held at the time of injury] within a short period of time." Here, unlike the situation in Dugan, there is specific evidence that the claimant earned more after the injury than he was earning at the time of the injury.
IT IS THEREFORE ORDERED that the ALJ's order, dated April 3, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed August 1, 1995 to the following parties:
Charles Fisher, 7858 N. Stuart St., Westminster, CO 80030
Micha Enterprises, % Colorado Compensation Insurance Authority — Interagency Mail
Douglas A. Thomas, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Lawrence D. Blackman, Esq., and Jordan S. Levine, Esq., 1290 Broadway, #708, Denver, CO 80203
(For the Claimant)
By: _________________________________