W.C. Nos. 4-396-470, 4-397-562Industrial Claim Appeals Office.
October 22, 2001
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Gallegos (ALJ Gallegos) which determined the claimant became temporarily partially disabled on October 8, 1998, and an order of ALJ Corchado which determined the claimant’s average weekly wage and awarded temporary partial disability benefits from October 9, 1998 through January 26, 1999 (inclusive). We affirm the order of ALJ Gallegos, set aside the order of ALJ Corchado, and remand for entry of a new order concerning the claimant’s average weekly wage (AWW) and entitlement to benefits.
ALJ Gallegos found the claimant was employed by respondent Community Support Providers (Community Support) as a residential aid to adults with disabilities. The claimant worked 10 hour night shifts but was permitted to sleep for five hours.
The claimant sustained a compensable back injury on July 30, 1998. The claimant continued to work as a residential aid , but ALJ Gallegos found his duties required “lifting clients which was outside the work restrictions” imposed by the treating physician. Eventually, the claimant was notified the employer intended to modify his job to prohibit sleeping. The claimant testified that he then quit the employment in part because the employer required him to work beyond his restrictions, and partly because the employer intended to require him to remain awake for the entire 10 hours. (Tr. pp. 10). However, the claimant continued to be employed in a second job with Good Shepherd Lutheran Home (Good Shepherd), a job which was within his restrictions. ALJ Gallegos concluded the claimant’s partial wage loss commencing October 9 was caused by the industrial injury.
Subsequently, the matter went to hearing before ALJ Corchado concerning the claimant’s AWW. In this regard, the parties stipulated the claimant’s pre-injury AWW, based on his concurrent employment with Community Support and Good Shepherd, was $656.80. The parties further stipulated the award of temporary partial disability benefits would be limited, for purposes of the order, to the period from October 8, 1998 through January 26, 1999. (Tr. October 30, 2000, p. 7). Relying on wage records from the claimant’s employment with Good Shepherd, and the claimant’s position statement concerning calculation of the post-injury AWW, the ALJ determined the claimant’s AWW to be $425.74 during the disputed period. Consequently, ALJ Corchado concluded the claimant is entitled to temporary partial disability benefits at the rate of $154.04 per week. It should be noted that the order erroneously awarded benefits through January 29 rather than January 26, 1999.
I.
On review, the respondents first contend ALJ Gallegos erred in finding the claimant’s wage loss after October 8 was caused by the industrial injury. Instead, the respondents assert the evidence compelled ALJ Gallegos to find the claimant was able to perform the duties of his regular employment despite the medical restrictions, and quit the employment because he was dissatisfied with the requirement that he remain awake for the entire 10 hours. We find no error.
In order to prove entitlement to temporary partial disability benefits, the claimant must demonstrate the industrial injury caused the disability and resulted in a partial wage loss. Section 8-42-103(1), C.R.S. 2001, § 8-42-106(1), C.R.S. 2001; PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). A claimant establishes disability if he proves that the effects of the injury have rendered him unable to return to work and perform his usual duties. Id. at 548. Lay testimony, if credited, is sufficient to establish the injury was the cause of the claimant’s disability and consequent wage loss. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Ultimately, we must uphold the ALJ’s determination of these issues if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Lymburn v. Symbios Logic, supra.
The substantial evidence standard of review requires us to view the evidence in the light most favorable to the prevailing party. Further, we must defer to the ALJ’s resolution of conflicts in the evidence, the credibility determinations, and the plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents’ arguments notwithstanding, substantial evidence supports the finding of ALJ Gallegos that the industrial injury was the cause of the claimant’s partial wage loss after October 8. The claimant expressly testified the employer’s insistence that he work beyond his restrictions was a factor in his decision to terminate the employment. Although the claimant also mentioned other factors, including the change in working conditions, the ALJ was persuaded that the claimant left the job because he was not physically able to continue. Although the ALJ might have drawn other inferences and conclusions, we cannot say the evidence compelled a contrary conclusion as a matter of law.
II.
The respondents next contend ALJ Corchado erred in calculating the claimant’s post- injury AWW for purposes of determining the claimant’s entitlement to temporary partial disability benefits under §8-42-106(1). The respondents assert that the “only credible means” to determine the post-injury AWW is to consider the claimant’s earnings for the entire period of his employment at Good Shepherd, including earnings subsequent to the stipulated period of temporary partial disability. We remand the matter for recalculation of the post-injury average weekly wage, although for reasons somewhat different than those stated by the respondents.
Section 8-42-106(1) provides that temporary partial disability benefits are calculated based on sixty-six and two-thirds percent of the difference between the claimant’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.” We have previously held the ALJ may employ the discretionary authority contained in § 8-42-102(3), C.R.S. 2001, to calculate a “fair” post-injury AWW. Price v. Petco Animal Supplies, W.C. No. 4-372-735 (November 22, 2000). The overall objective is to arrive at an AWW which represents a fair approximation of the claimant’s wage loss and diminished earning capacity. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Because calculation of the AWW is discretionary, we may not interfere with the order unless it is beyond the bounds of reason, as where it is unsupported by the law or contrary to the evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867
(Colo.App. 2001). Of course, we may set aside an ALJ’s order if the findings are insufficient to support appellate review, or the evidence does not support the findings. Section 8-43-301(8).
Here, we cannot say ALJ Corchado abused his discretion in refusing to base the post- injury AWW on the claimant’s earnings at Good Shepherd over the entire period of his employment. The ALJ was asked to determine the claimant’s partial wage loss for the period from October 8, 1998 through January 26, 1999. Thus, the ALJ could reasonably determine that the AWW should be based on the claimant’s earnings during this period because those earnings best represent his actual loss of earning capacity for the relevant period of time.
However, we are unable to determine the basis of ALJ Corchado’s conclusion that the post-injury AWW was $425.74 during the period of temporary partial disability. Apparently, ALJ Corchado relied on the claimant’s position statement which asserted the claimant earned $8,514.87 during “ten two-week pay periods.” Thus, the claimant argued the AWW should be calculated by dividing the total pay by 20 weeks. However, by our calculation, there are 110 days between October 8, 1998 and January 26, 1999. Division of 110 by 7 yields 15.7 weeks, not 20 weeks. Further, the claimant’s calculation (and consequently the ALJ’s) includes $610.61 which was paid to the claimant on October 9, 1998. Presumably, this amount was earned prior to the period of temporary partial disability, and should not be included in calculating the average earnings during the period of disability. For these reasons, we are unable to ascertain the basis of ALJ Corchado’s calculation of the claimant’s post-injury AWW, and remand for entry of a new order on this issue.
IT IS THEREFORE ORDERED that the order of ALJ Gallegos dated August 17, 1999, is affirmed.
IT IS FURTHER ORDERED that the order of ALJ Corchado dated January 2, 2001, is set aside, and the matter is remanded for redetermination of the claimant’s post-injury AWW and for entry of an appropriate award of temporary partial disability benefits.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Robert M. Socolofsky
Copies of this decision were mailed October 22, 2001 to the following parties:
Hector Alvarez, 520 Inca St., Denver, CO 80204
Community Support Services, Colorado Options in the Community, 16 Farber Rd., Princeton, N.J. 08540-5913
Gallagher Bassett Services, The Quorum West, 7935 E. Prentice Ave., #305, Englewood, CO 80111
Linda Black, Selectech Insurance Company, 40 Wantage, Branchville, N.J. 07890
Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80215 (For Claimant)
Anne Smith Myers, Esq., and Benjamin E. Tracy, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy