W.C. No. 4-214-437Industrial Claim Appeals Office.
November 21, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ) which determined the claimant’s average weekly wage for various period of disability. We affirm.
The facts are undisputed. The claimant suffered a compensable injury in May 1994. At the time of the injury, the claimant was earning $8.32 per hour. On July 27, 1994, the claimant received a wage increase to $8.82 per hour, and received another increase to $9.06 on January 12, 1995.
The claimant experienced several periods of temporary disability. The issue was whether, during each period of disability, the claimant’s average weekly wage should be adjusted to reflect the wage increases. Relying o Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), the ALJ considered the wage increases and adjusted the average weekly wage for each period of temporary disability.
On review, the respondents contend that the ALJ’s modification of the average weekly wage is contrary to the plain language of § 8-40-201(19)(a), C.R.S. (1995 Cum. Supp.), and § 8-42-102(2), C.R.S. (1995 Cum. Supp.). We reject this argument.
The ALJ correctly recognized that, in Campbell v. IBM Corp., supra, the Court of Appeals held that § 8-42-102(3), C.R.S. (1995 Cum. Supp.) gives ALJs discretionary authority to adjust a claimant’s average weekly wage so as to reflect his “earnings at the time of each period of disablement.” The court’s rationale is that the objective of the average weekly wage is to “arrive at a fair approximation of the claimant’s wage loss and diminished earning capacity.” We are not at liberty to ignore the court’s interpretation of the statutory scheme. C.A.R. 35(f).
The respondents attempt to distinguish Campbell v. IBM Corp. from this case because Campbell involved an occupational disease and this case involves an accidental injury. However, we rejected this argument i Dennon-McCoy v. Larimer County, W.C. No. 3-762-149, June 8, 1994, aff’d., Larimer County v. Dennon-McCoy, Colo. App. No. 94CA1765, August 3, 1995 (not selected for publication). In Dennon-McCoy we noted that Campbell is not predicated on any distinction between occupational diseases and accidental injuries. Campbell expressly rejected such a distinction and emphasized the injustice which would result from not fairly compensating a claimant’s actual wage loss during multiple periods of disability. There is no discernable difference between occupational diseases and accidental injuries when the issue involves fair compensation.
As the respondents point out, the periods of disability which the claimant experienced in Campbell occurred over a greater span of time than those which occurred in this case. However, this distinction does not affect the unfairness which would result from depriving this claimant of compensation for his wage increases. Therefore, we do not find this distinction persuasive.
We have considered the respondents’ remaining arguments and find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order, dated July 18, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
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 November 21, 1995 to the following parties:
Thomas D. Bennett, 7755 E. Quincy Ave., Bldg. D-4, Apt. #206, Denver, CO 80237
Ryder Truck Rental, Inc., 3600 N.W. 82nd Ave., Miami, FL 33166-6623
Ryder Services, Attn: Caren Meadow, P.O. Box 1026, Tustin, CA 92681-1026
Old Republic Ins. Co., P.O. Box 2200, Greensburg, PA 15601
David J. Dworkin, Esq., 950 S. Cherry St., Ste. 1502, Denver, CO 80222
(For the Respondents)
David Hollar, Esq., William E. Myrick, Esq., 1045 Lincoln St., Ste. 200, Denver, CO 80203
(For the Claimant)
By: _______________________