W.C. No. 4-314-525Industrial Claim Appeals Office.
July 15, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined her average weekly wage. We affirm.
The claimant suffered a work-related injury on December 12, 1996. The respondents filed a General Admission of Liability for temporary disability benefits based upon an average weekly wage of $210. The claimant objected and applied for a hearing on the issue of “improper computation” of average weekly wage. Specifically, the claimant asserted that the respondents understated her average weekly wage by considering only the “salary” portion of her earnings, and failing to include “vehicle reimbursement” and “driver commission” payments in her average weekly wage.
Based upon the evidence presented at a hearing on May 15, 1997, the ALJ rejected the claimant’s contention that the calculation of her average weekly wage should not be based strictly on the “salary” portion of her earnings. The ALJ determined that the amount paid to the claimant for “vehicle reimbursement,” based on thirty percent of her commissions, was related to her actual expenses for the use of her personal vehicle, and was not wages. Therefore, the ALJ determined that the claimant’s average weekly wage was $210 as admitted by the respondents.
On appeal, the claimant does not contest the ALJ’s finding that her average weekly wage excludes the vehicle use reimbursement. Rather, the claimant contends that the ALJ exceeded his authority in determining that her average weekly wage without that amount was $210. We disagree.
At the commencement of the hearing, the claimant’s attorney agreed with the ALJ that the “only issue” for adjudication was “average weekly wage.” (Tr. p. 3). The ALJ then asked the claimant’s attorney to describe his theory of the case, at which time the attorney submitted a written position statement. (Tr. p. 3). The position statement argues that the respondents erred in failing to include the 30 percent commission amount in the calculation of her average weekly wage. The ALJ further inquired whether there was “anything else you need to bring up preliminarily,” and the claimant’s attorney responded negatively. (Tr. p. 7).
Moreover, the claimant’s attorney stated he had “no objection to the calculation of the salary portion of the average weekly wage,” which the respondents had admitted was $210, and that “the issue is whether to include the salary [sic] reimbursement.” (Tr. p. 18) It follows that the claimant inherently conceded that her average weekly wage without inclusion of the vehicle reimbursement was $210, and we conclude that she waived any other objections to the ALJ’s determination of the average weekly wage. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 8, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed July 15, 1998 to the following parties:
Sheryl A. Bearman, 2356 Gilpin, Denver, CO 80205
City Express, Attn: Tom Irwin, 6750 E. 46th Ave. Dr., #600, Denver, CO 80216
Business Insurance, Attn: Kurt Lawrence, 2000 s. Colorado Blvd, Ste. 11500, P.O. Box 101630, Denver, CO 80250
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For the Claimant)
James R. Clifton, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondents)
Mark Salzberg, Esq., 615 S. Federal Blvd., Denver, CO 80219 (For the Claimant)
BY: _______________________