Opinion
W.C. No. 4-372-735
November 22, 2000
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Hopf (ALJ) insofar as the ALJ awarded temporary partial disability benefits. The respondents argue the ALJ incorrectly calculated the claimant's post-injury "average weekly wage" for purposes of § 8-42-106(1), C.R.S. 2000. We set aside the contested portion of the order and remand for entry of a new order.
The claimant sustained a compensable injury in February 1998. The claimant's average weekly wage at the time of the injury was $563.88 per week. The claimant was unable to return to her pre-injury employment, but subsequently found work at Boulder Technologies. The issue in this case concerns calculation of the claimant's entitlement to temporary partial disability benefits commencing March 1, 1999.
The ALJ found that from March 1, 1999, through August 15, 1999, the claimant was paid $12.25 per hour, and commencing August 16, 1999, the claimant was paid $13.00 per hour. Further, the claimant worked an alternating schedule, which required her to work 36 hours one week, then 48 hours the next week. During the 48-hour weeks the claimant was paid time and a half for 8 hours. Under these circumstances, the ALJ ordered that during "all weeks when the Claimant worked 36 hours per week from March 1, 1999 through August 15, 1999, her temporary partial disability benefit shall be paid at the rate of $81.96 per week." The ALJ further ordered that for "all periods since August 16, 1999, when the Claimant worked 36 hours per week, the Respondents shall pay temporary partial disability benefits at the rate of $63.95 per week." The respondents were not ordered to pay temporary partial disability benefits for weeks during which the claimant worked 48 hours because her earnings exceeded her average weekly wage at the time of the injury.
On review, the respondents contend the ALJ erred in calculating the claimant's post-injury "average weekly wage" for purposes of § 8-42-106(1). Relying on Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), the respondents argue the ALJ should have "averaged" the claimant's earnings from the 36 hour weeks and the 48-hour weeks so as to arrive at a fair estimation of the claimant's actual loss of earnings. Because we conclude the ALJ's findings are insufficient to support appellate review, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 2000.
Section 8-42-106(1) provides that in cases of temporary partial disability the claimant "shall receive sixty-six and two-thirds percent of the difference between said employee's average weekly wage at the time of the injury and said employee's average weekly wage during the continuance of the temporary partial disability." As the claimant recognizes, we have held a claimant's post-injury "average weekly wage," for purposes of § 8-42-106(1), is to be calculated in accordance with the provisions of § 8-42-102, C.R.S. 2000. Thus, when calculating the claimant's post-injury average weekly wage, the ALJ possesses the same discretionary authority to calculate a "fair" wage as the ALJ possesses when calculating the average weekly wage at the time of the injury. Section 8-42-102(3), C.R.S. 2000; Smith v. A- Reliable Roofing, W.C. No. 4-387-461 (May 6, 1999). Of course, the overall objective of calculating the average weekly wage "is to arrive at a fair approximation of the claimant's wage loss and diminished earning capacity." Campbell v. IBM Corp., supra.
Here, the ALJ's findings of fact are insufficient to indicate the basis of her calculation of the claimant's post-injury average weekly wage for purposes of determining the rate of temporary partial disability benefits. The ALJ's findings reflect no reference to any provision of § 8-42-102, and permit an inference the ALJ believed that calculation of the post-injury average weekly wage must be based on a simple mathematical calculation measured by the claimant's weekly post-injury earnings. Although a mathematical calculation is often permissible under § 8-42- 102(2)(a)-(f), C.R.S. 2000, we have upheld an ALJ's exercise of discretion to calculate a claimant's post-injury average weekly wage based on the type of "averaging" argued for by the respondents in this case. Smith v. A-Reliable Roofing, supra. Here, the respondents have offered several arguments as to why it would be "fair" to average the claimant's post-injury earnings, and the ALJ's order does not reflect consideration of any of these arguments.
In these circumstances, the matter must be remanded to the ALJ to redetermine the claimant's temporary partial disability rate. In so doing, the ALJ shall apply the provisions of § 8-42-102, and may choose to exercise her discretion to calculate a "fair" post-injury average weekly wage in accordance with § 8-42-102(3). The ALJ shall enter specific findings of fact and conclusions of law to indicate the basis of her determination. In reaching this result, we should not be understood as expressing any opinion concerning the correct method of calculating the claimant's temporary partial disability rate, as that determination remains within the sound discretion of the ALJ.
IT IS THEREFORE ORDERED that the ALJ's order dated February 1, 2000, is set aside insofar as it determined the rate at which temporary partial disability benefits are to be paid, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed November 22, 2000 to the following parties:
Joan E. Price, 16440 W. 64th Ave., Arvada, CO 80005
Petco Animal Supplies, 1820 W. Uintah St., Colorado Springs, CO 80904-2960
Dawnn Menendez, Petco Animal Supplies, 9152 Rehco Rd., San Diego, CA 92121
American Home Assurance Company, Carol Keim, Adjuster, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Claimant)
W. Berkeley Mann, Jr., Esq., and Karen F. Hubler, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Pendroy