W.C. No. 4-377-366Industrial Claim Appeals Office.
May 18, 1999.
ORDER OF REMAND
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ) which awarded temporary disability benefits. The respondent contends the ALJ erred in calculating the average weekly wage. We set aside the order and remand for additional findings of fact.
The claimant suffered a back injury on November 14, 1997, arising out of and in the course of her employment as a part-time cashier for the respondent. The respondent admitted liability for temporary disability benefits based on an average weekly wage of $116.25.
The ALJ found that at the time of the injury the claimant held concurrent employment at Olsten Staffing Services (Olsten), and was assigned to work as a house cleaner at the Hasan residence. The ALJ determined that at the time of the injury the claimant earned an average of $207.10 per week from Olsten. Therefore, the ALJ ordered the respondent to pay temporary disability benefits based on an average weekly wage of $323.35.
I.
On review, the respondent points out that the claimant did not perform any house cleaning services at the Hasan residence between September 28, 1997, and November 20, 1997. Therefore, the respondent argues the ALJ erred in finding the claimant had concurrent employment at the time of the industrial injury. We disagree.
As argued by the respondent, § 8-42-102(2), C.R.S. 1998, provides that calculation of the “average weekly wage “shall be based on the remuneration received by the claimant “at the time of the injury.” However, § 8-42-102(3), C.R.S. 1998, affords the ALJ broad discretion to compute the average weekly wage in any manner and by such method as will fairly compensate the claimant for her diminished earning capacity caused by the industrial injury Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
Furthermore, under § 8-42-102(3) an injured worker’s “average weekly wage” may include earnings from concurrent employment. St. Mary’s Church Mission v. Industrial Commission, 735 P.2d 902
(Colo.App. 1986).
The determination of whether the claimant had concurrent employment is factual in nature. See St. Mary’s Church Mission v. Industrial Commission, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
Here, the claimant testified that she was hired by Olsten in June 1997 and worked at the Hasan residence from June 1997 through September 28, 1997. (Tr. pp. 26, 27). The claimant also stated that she worked no shifts between September 28, 1997, and late November 1997 because the Hasan’s were away from home. (Tr. p. 31). However, she stated that there was no break in her employment relationship with Olsten and that when the Hasans returned she resumed cleaning their home through April 1998. (Tr. pp. 32, 41).
The respondent’s arguments notwithstanding, the claimant’s testimony contains substantial evidence to support the ALJ’s determination that the claimant was concurrently employed on the day of the industrial injury. Evidence the claimant did not have any scheduled work shifts, and did not earn any house cleaning wages during the week of the industrial injury, may be relevant to the actual calculation of the claimant’s average weekly wage, however, it did not preclude the ALJ from finding that the claimant held concurrent employment.
The respondent’s further arguments are not persuasive. Therefore, we may not disturb the ALJ’s finding of concurrent employment.
II.
The respondent also contends the ALJ abused his discretion in finding that the claimant earned $207.10 per week at Olsten. The respondent contends the ALJ’s calculation is inconsistent with payroll records that show the claimant earned $2,899 over a 17 week period between June 8, 1997 and September 28, 1997. The respondent also contends the ALJ’s calculation does not reflect the fact that the claimant worked for Olsten only on an “as needed” basis. We conclude that the ALJ’s findings of fact are insufficient to permit appellate review of the respondent’s argument.
We may not interfere with the ALJ’s exercise of his discretionary authority under § 8-42-102(3) unless an abuse is shown. Coates, Reid Waldron v. Vigil, supra. An abuse is shown where the order is not in accordance with applicable law, or not supported by substantial evidence in the recor . Coates, Reid Waldron v. Vigil, supra. However, the ALJ’s findings must be sufficient to indicate the basis of the order, and the reasons for the exercise of discretion. Section 8-43-301(8); Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, the ALJ did not make any factual determinations concerning the evidence he relied upon in determining the claimant’s average weekly wage at Olsten. Neither did the ALJ determine the frequency of the claimant’s work for Olsten. Rather, the ALJ merely found that the claimant worked at the Hasan residence from June through September 1997 and was paid $10 per hour and later $12 per hour. (Conclusion of Law; Finding of Fact 13). Under these circumstances, we are unable to ascertain how the ALJ determined the claimant earned an average of $207.10 per week from Olsten. Consequently, we remand the matter to the ALJ for entry of specific findings of fact and conclusions of law concerning the calculation of claimant’s average weekly wage.
In view of our disposition we necessarily reject the claimant’s contention that the respondent’s argument was not raised before the ALJ. At the commencement of the hearing before the ALJ, the respondent’s attorney stated that the issue for adjudication was the claimant’s average weekly wage from concurrent employment. (Tr. p. 3). The ALJ’s “calculation” of the concurrent employment wage is implicit in that issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 7, 1998, is set aside and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed May 18, 1999 to the following parties:
Randy F. Brown, 1081 Vail View Dr., #305B, Vail, CO 81657
Carrie Cathcart, Vail Associates, Inc., LWP Services Inc., 575 Union Blvd., #310, Lakewood, CO 80228
Vail Corporation, 600 Lionshead Pl., Vail, CO 81657-5212
Amy L. Brewer, Esq., P. O. Box 2309, 111 Lincoln Ave., #C, Breckenridge, CO 80424 (For Claimant)
Steven J. Picardi, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondents)
BY: A. Pendroy