IN THE MATTER OF THE CLAIM OF AUGUST ADAME, Claimant, v. FAMILY FURNITURE WAREHOUSE, INC., Employer, and NON-INSURED, Respondent.

W.C. No. 4-239-691Industrial Claim Appeals Office.
May 14, 1996

FINAL ORDER

The respondent seeks review of a final order of Administrative Law Judge Henk (ALJ) which determined that the claimant sustained a compensable injury, awarded temporary disability and medical benefits, and determined the average weekly wage. We affirm.

The ALJ found that the claimant sustained a compensable injury while tending to some horses at the direction of the employer. The ALJ further found that the claimant was off work from January 24, 1995 until June 15, 1995, when he accepted a job with another employer.

The ALJ awarded temporary disability benefits from January 24 to June 15 based on an average weekly wage of $231.15 per week. The ALJ also ordered the payment of medical expenses associated with the injury.

On review, the respondent first contends that the record does not contain substantial evidence to support the ALJ’s conclusion that the injury arose out of the claimant’s employment. The respondent reasons the claimant was hired to move furniture, and that tending horses had nothing to do with the job. We reject this argument.

An injury arises out of employment if it has its origin in an employee’s work-related functions and is sufficiently related thereto as to be considered part of the employee’s service to the employer in connection with the contract of employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). Determination of this issue is factual in nature and must be based on an examination of the totality of the circumstances in each case Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991).

Because the issue is factual in nature, the ALJ’s order must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying this standard we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).

The respondent’s argument notwithstanding, the claimant’s testimony supports the ALJ’s determination that the injury arose out of the employment. The claimant testified that he was occasionally expected to water and feed the horses, and that this was at the direction of the respondent-employer. Moreover, the claimant testified that he was paid for the time it took to care for the horses. The claimant’s testimony was corroborated by the testimony of Mr. Yoho. The fact that some evidence in the record might support a contrary finding and conclusion is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589
(Colo.App. 1988).

The respondent next contends that the ALJ’s calculation of the average weekly wage is not supported by the evidence. We disagree.

The ALJ examined the employer records, and calculated the claimant’s earnings for the three month period prior to the month in which the injury occurred. The ALJ then divided these earnings by thirteen, the number of weeks in the three month period.

This method of determining the average weekly wage was fully within the ALJ’s discretion. Section 8-42-102(3), C.R.S. (1995 Cum. Supp.). Because no abuse of discretion has been shown, we may not interfere with the ALJ’s order. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).

The respondent next contends that the award of medical benefits is improper because the claimant did not introduce specific medical bills. However, the claimant proved that he needed medical treatment as a result of the injury, and that expenses were incurred as a result of the treatment. (Tr. pp. 28-29).

Under these circumstances, there was no error in the ALJ’s order requiring the respondent to pay all of the medical expenses “arising out of the compensable injury.” To the extent the respondent disputes whether any particular bill was related to the injury, it may submit the matter to the ALJ for determination.

Insofar as the respondent has raised other arguments, we find them to be without merit.

IT IS THEREFORE ORDERED that the ALJ’s order dated September 5, 1995, is affirmed.

INDUSTRIAL CLAIM APPEAL PANEL

___________________________________ David Cain
___________________________________ Kathy E. Dean

NOTICE

This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).

Copies of this decision were mailed May 14, 1996 to the following parties:

August Adame, 1804 S. 7th, Lamar, CO 81052

Family Furniture Warehouse, Inc., P.O. Box 29, Lamar, CO 81052-0029

Richard L. Susman, Esq., 1401 Court St., Pueblo, CO 81003 (For the Claimant)

Debra M. Gunkel, Esq., 2223 S. Monaco Pkwy., #E-6, Denver, CO 80222 (For the Respondent)

By: ________________________