W.C. No. 4-818-037.Industrial Claim Appeals Office.
January 18, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated July 27, 2010, that determined the claimant’s average weekly wage (AWW) should be calculated on the claimant’s earnings at the time of her industrial injury. We affirm.
The ALJ found the claimant suffered a compensable claim on January 17, 2005 and was off work as a result of the injury from June 22, 2009 through August 3, 2009. The ALJ awarded temporary total disability benefits from June 22, 2009 through August 3, 2009. At the hearing the respondents argued that the claimant’s AWW at the date of her injury was $928.70. However, the claimant argued that beginning December 25, 2008 through June 21, 2009 the claimant’s AWW at the employer was $1,155.94.
The ALJ determined that the claimant’s AWW was properly based upon her earnings at the time of her original injury. Even though the claimant did not begin to lose time from work until several years after her original injury, the ALJ did not find that the claimant’s AWW should be based upon a calculation other than the claimant’s earnings at the time of her industrial injury.
The claimant brings this appeal arguing that the ALJ erred in finding the claimant’s AWW should be based on her wage at the time of her injury rather than her wage four years later when she became disabled. The claimant, citing Avalanche Industries, Inc. v. Clark 198 P.3d 589 (Colo. 2008) and Benchmark/Elite, Inc. v. Simpson 232 P.3d 777 (Colo. 2010), argues that although she is limited to the statutory maximum in effect on the date of her accident she is entitled to AWW based on an increased post-injury
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wage. The claimant argues that the ALJ misinterpreted these cases and thought he was precluded from granting AWW based on a post-injury wage increase. The claimant contends that the use of the claimant’s earning at the time of her injury results in a manifest injustice and she is deprived of fair compensation. We note that the claimant presented a proposed order in the present case. In this proposed order the claimant noted her wage in 2008 and 2009, but made no argument nor proposed any findings of fact that would suggest use of the wages of the claimant at the time of her injury would result in manifest injustice. Nor has the claimant here pointed to any evidence in the record, nor are we aware of any evidence other than the naked wage records that would go to the issue of why it would be unfair to use the wages the claimant earned at the time of her injury. We are not persuaded to interfere with the ALJ’s exercise of his discretion in determining the claimant’s AWW.
Section 8-42-102(2)(d), C.R.S, sets forth the method for calculating the AWW. The overall purpose of the statutory scheme is to calculate “a fair approximation of the claimant’s wage loss and diminished earning capacity.” Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993). The ALJ is afforded discretionary authority in calculating the wage. We may not interfere with the ALJ’s calculation of the AWW unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). An ALJ only abuses his discretion where the order “exceeds the bounds of reason,” such as where it is unsupported by the record or is contrary to law. Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985).
In Benchmark/Elite, Inc. v. Simpson, the Colorado Supreme Court overruled the part of its holding in Avalanche Industries, Inc. v. Clark that the claimant’s “time of injury” as used in § 8-42-102(3) could mean either time of accident or time of disablement. However, in Benchmark the court reaffirmed that under the Workers’ Compensation Act, in determining an employee’s AWW the ALJ may choose from two different methods set forth in section 8-42-102. The court noted the first method, referred to as the “default provision,” provides that an injured employee’s AWW “be calculated upon the monthly, weekly, daily, hourly, or other remuneration which the injured or deceased employee was receiving at the time of injury.” Section 8-42-102(2). The court then explained the second method for calculating an employee’s AWW, referred to as the “discretionary exception,” applies when the default provision “will not fairly compute the [employee’s AWW].” Section 8-42-102(3). In such a circumstance, the ALJ has discretion to “compute the [AWW] of said employee in such other manner and by such other method as will, in the opinion of the director based upon the facts presented, fairly determine such employee’s [AWW].”Id.
Here, the ALJ citing Campbell v. IBM Corp., specifically noted the discretionary exception allowed him to compute the AWW in such a manner that would fairly
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determine the claimant’s AWW. The ALJ then found that the claimant’s AWW should be properly based upon her earnings at the time of her injury. We are not persuaded that the ALJ was compelled to base the claimant’s AWW upon the claimant’s increased wages resulting from raises earned after the injury.
We entertain doubts that use of the “default provision,” created by the General Assembly under § 8-42-102(2) that provides for use of a claimant’s wages at the time of injury in calculating AWW, can ever be said to be such an abuse of discretion that it exceeds the bounds of reason or is contrary to the law. In any event, here we perceive no reversible error in the exercise of the ALJ’s discretion. The ALJ correctly cited the law and we read nothing in the order as suggested by the claimant that the ALJ mistakenly rea Benchmark as eliminating his discretionary ability in determining AWW.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 27, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________________ John D. Baird
_________________________ Thomas Schrant
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SHELLY WEDDELL, 116 WHITETAIL DRIVE, NEW CASTLE, CO, (Claimant).
GLENWOOD MEDICAL ASSOCIATES, Attn: TIM BURNS, GLENWOOD SPRINGS, CO, (Employer)
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer)
WITHERS SEIDMAN RICE MUELLER, PC, Attn: CHRISTOPHER SEIDMAN, ESQ., GRAND JUNCTION, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: DAVID L. SMITH, ESQ., DENVER, CO, (For Respondents).
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