Opinion
W.C. No. 3-114-839
April 21, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which calculated the claimant's average weekly wage. We affirm.
This case was presented to the ALJ on position statements and documents submitted by the parties. The ALJ found that the claimant was injured on August 6, 1994. At that time, the claimant had been employed by respondent B.J. Well Service less than three weeks. Moreover, during the first pay period from July 18, 1994 through July 24, 1994, the claimant worked only three days and attended training sessions for eight hours per day.
Thereafter, the claimant worked twelve days before sustaining the injury. During these twelve days, the claimant earned $7.50 per hour, plus $10.88 per hour for overtime. Additionally, the claimant received a premium of $5.00 for those days he was required to work through his lunch hour.
The ALJ found from the evidence that for the week of July 25 through July 31, 1994, the claimant earned $974.57. For the five days from August 1, 1994 through August 5, 1994, the claimant earned $466.48. The ALJ added the total earnings from these two pay periods which equaled $1,441.05, and divided by twelve yielding daily earnings of $120.09. The ALJ then multiplied this figure times seven to yield an average weekly wage of $840.61.
On review, the respondents contend that the ALJ abused his discretion in failing to utilize § 8-42-102(3), C.R.S. 1997, to calculate a lower average weekly wage. Specifically, the respondents argue the ALJ erred in his calculation by not including earnings for the three days the claimant attended the training sessions. The respondents also assert that the ALJ should have considered wages earned by "employees in positions similar" to the claimant's. We find no error.
Initially, we note the respondents' contention that the ALJ calculated the average weekly wage under § 8-42-102(2)(d), C.R.S. 1997. However, we believe this assertion is inaccurate. The ALJ did not find the claimant had a single hourly rate, nor a fixed number of hours of work. To the contrary, the ALJ concluded that the claimant's hours fluctuated, as did his rate of pay. Consequently, the ALJ implicitly utilized § 8-42-102(3) by calculating the wage based on a period of time during which the claimant's earnings would fairly represent his earning capacity.
In any event, we reject the respondents' assertion that the statute required the ALJ to calculate the average weekly wage differently. Section 8-42-102(3) gives the ALJ discretion to calculate the average weekly wage in a manner which will "fairly" represent the claimant's loss of earning capacity. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). An abuse of discretion is not shown unless the ALJ's calculation is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here, the ALJ decided not to include in his calculation earnings for the three days the claimant attended the training sessions. The ALJ determined that inclusion of these earnings would unfairly depress the wage because the claimant was restricted to eight hours for three days, while his actual job duties required him to work substantially more hours. Under these circumstances, we cannot say the ALJ abused his discretion. See R.J.S. Painting v. Industrial Commission, 732 P.2d 239 (Colo.App. 1986).
Neither did the ALJ err by failing to determine the claimant's wage based on what other "similar" employees earned prior to the claimant's injury. Section 8-42-102(2) provides that the average weekly wage is to be calculated based on the "remuneration which the injured or deceased employee was receiving at the time of the injury." Thus, in Sterling Colorado Beef v. Baca, 699 P.2d 1347 (Colo.App. 1985), the Court of Appeals held that a claimant's average weekly wage was not to be reduced when the employer experienced a post-injury "economic slow-down" and reduced the hours worked by employees in the claimant's job classification.
Here, the record contains scant evidence concerning the earnings of "other employees." Consequently, we perceive no abuse of discretion in the ALJ's failure to adopt the respondents' position. In any event, the ALJ correctly relied on the claimant's earnings, not those of other employees.
IT IS THEREFORE ORDERED that the ALJ's order dated October 2, 1997, 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. 1997.
Copies of this decision were mailed April 21, 1998 to the following parties:
Terry Ragsdale, 825 E. Ottley, #E-6, Fruita, CO 81521
B.J. Well Service, Western Company of North America, 2403 River Rd., Grand Junction, CO 81505-1309
Carol Keim, AIG Claim Services, Inc., 2201 E. Camelback, 4th Flr., P.O. Box 32130, Phoenix, CO 85064
Joel S. Babcock, Esq. Wendy J. Shea, Esq., 400 So. Colorado Blvd., Ste. 700, Denver, CO 80222 (For the Respondents)
Keith Killian, Esq. Joanna C. Jensen, Esq., 225 No. 5th St., Ste. 1010, P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
By: __________________________________________________