W.C. No. 3-101-844Industrial Claim Appeals Office.
December 8, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) insofar as it determined the average weekly wage. We affirm.
This matter has been before us previously. In on Final Order of July 8, 1994 we concluded that the ALJ erred, in an order of June 8, 1993, to the extent he held that the respondents were estopped from denying that the claimant’s average weekly wage was $615 per week. We remanded the case with instructions to recalculate the average weekly wage. The claimant appealed our order, and our order was affirmed by the Court of Appeals Borstad v. Industrial Claim Appeals Office, Colo. App. No. 94CA1285, March 2, 1995 (not selected for publication).
Our July 8 order contains an extensive statement of the facts, and that statement is incorporated in this order. On remand, the ALJ found that the claimant’s occupational disease caused her to leave work on March 30, 1991. He also found that, for all of 1991, the claimant’s tax return reflects business earnings of $5,484. Finally, the ALJ cited the claimant’s testimony that, after March 30, she could only earn $100 per week.
Based on these findings, the ALJ determined that, prior to March 30, 1991, the claimant earned $1,584 as a hair dresser. This finding was obviously based on the ALJ’s conclusion that, if the claimant earned $100 per week for the thirty-nine weeks after March 30, she must have earned $1,584 for the first thirteen weeks of 1991. Thus, the ALJ divided $1,584 by thirteen and determined that the claimant’s average weekly wage as $121.85 per week.
On review, the claimant contends that the ALJ abused his discretion in calculating the average weekly wage. Relying on § 8-42-102(3), C.R.S. (1995 Cum. Supp.), and Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993), the claimant argues that the ALJ should have calculated the average weekly wage based on all earnings from 1988 through 1992. In addition, the claimant argues that it was unfair for the ALJ to rely on her earnings from the first three months of 1991 because they were depressed by the effects of an October 1990 automobile accident. We are not persuaded.
Initially, insofar as the claimant is contending that this case involves successive industrial injuries, calculation of the average weekly wage is controlled by § 8-42-104(1), C.R.S. (1990 Cum. Supp.), as it existed prior to the 1991 amendments. This is true because the ALJ previously found that the claimant experienced the “onset of disability” from her occupational disease on March 30, 1991. See Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Under these circumstances, the Supreme Court has held that § 8-42-104(1) gives the ALJ discretionary authority to calculate a “fair” average weekly wage under the provisions of § 8-42-102(3). Cf. Coates, Reid Waldron v. Vigil, supra; Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, 870 P.2d 634
(Colo.App. 1994) (in cases of successive injuries occurring after July 1, 1991, ALJ must use average weekly wage at the time of the later injury).
The claimant in Coates sustained her first injury while earning $418 per week. Subsequently, while still temporarily disabled, she returned to work for the same employer earning $290 per week. The claimant was then injured a second time and sought permanent total disability benefits. Implicitly relying on the provision currently codified at § 8-42-104(1), the ALJ based the average weekly wage on the claimant’s lower earnings at the time of the second injury.
However, the Coates court held that, because § 8-42-104(1) refers to the claimant’s “earning capacity,” and the “limitations” contained in §8-42-102, the ALJ was obliged to calculate a “fair” average weekly wage under § 8-42-102(3). The court also concluded that the ALJ’s reliance on the claimant’s earnings at the time of the second injury was unfair because the claimant sustained concurrent injuries and she had higher earnings at the time of the first injury which was the greater cause of the permanent total disability. Further, the court noted that the claimant reached maximum medical improvement from both injuries at the same time and was disqualified from receiving permanent partial disability benefits for the first injury.
In evaluating the claimant’s argument that this case is analogous t Coates, Reid Waldron v. Vigil, we apply the rule that the ALJ’s calculation of the claimant’s average weekly wage must be upheld unless it constitutes an abuse of discretion. R.J.S. Painting v. Industrial Commission, 732 P.2d 239 (Colo.App. 1986). An abuse is shown only if the order is beyond the bounds of reason, as where it is contrary to the law or unsupported by substantial evidence in the record. Coates, Reid Waldron v. Vigil, supra.
The claimant’s argument notwithstanding, we find no abuse of discretion here. Although the claimant asserts that this case is similar to Coates because she sustained successive injuries in October 1990 and March 1991, the analogy is unconvincing. As the ALJ recognized in his prior order, the record contains evidence to support the conclusion that the claimant worked “essentially” full time until March 1991. Proper inferences from this evidence are that the claimant’s ability to earn wages was not substantially impaired by the October 1990 injury, and that the 1990 injury did not depress the claimant’s earnings for the first quarter of 1991. Therefore, unlike the situation in Coates, it is not apparent that the claimant was earning substantially more at the time of her first injury than she was in March 1991. In fact, the earnings reported by the claimant on her 1990 tax return were lower than those she reported for 1991.
Moreover, we agree with the respondents that the ALJ properly utilized his wide discretion, under § 8-42-102(3), in assessing the claimant’s average weekly wage. The ALJ was not required to adopt any particular formula, including the one suggested by the claimant. The ALJ recognized that the evidence was scarce and confusing concerning the claimant’s earnings prior to March 30, 1991. In view of the paucity of evidence, we cannot say the ALJ abused his discretion in considering the first three months of 1991 as being representative of the claimant’s ability to earn wages as of March 30, 1991.
The claimant appears to argue that the ALJ should have held an additional hearing to receive evidence on the issue of the average weekly wage. However, our order of July 8, 1994, did not contemplate an additional hearing, and our order was affirmed by the Court of Appeals. Consequently, the ALJ acted properly in deciding the issue without conducting an additional hearing. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (court is in the best position to assess the scope of our order of remand).
We note that, after the file was transmitted to us for review, the claimant contacted members of our support staff by telephone. The claimant requested that the staff communicate to us certain factual representations which the claimant made concerning the evidence and the conduct of the hearing. These representations are not part of the evidence in the case, and therefore, we have not considered them. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987) (representations of counsel may not substitute for that which must appear of record).
IT IS THEREFORE ORDERED that the ALJ’s order, dated April 20, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
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 December 8, 1995 to the following parties:
Darlene Borstad, 2079 Chamonix Lane, Vail, CO 81657
Hair Performance, 2079 Chamonix Lane, #8, Vail, CO 81657
Colorado Compensation Insurance Authority, Attn: Legal Department (Interagency Mail)
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502
(For the Claimant)
Douglas Ruegsegger, Esq. Thomas E.J. Hazard, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701
(For the Respondents)
By: ___________________