W.C. Nos. 4-357-688, 4-386-527, 4-390-936 4-410-543Industrial Claim Appeals Office.
August 17, 2001
FINAL ORDER
The claimant seeks review of an award of Administrative Law Judge Stuber (ALJ) insofar as it determined his average weekly wage. We affirm.
Our Order of Remand dated December 22, 2000, contains a statement of the facts, and that statement is incorporated herein. In that order we remanded the matter with directions to determine the claimant’s average weekly wage on March 19, 1998, the date of the automobile accident.
In an order dated March 19, 2001, the ALJ found the claimant earned $2074 in wages during the 69-day period from January 5, 1998, through March 15, 1998. The ALJ divided the total wages by 69 days, multiplied by 7, and determined the average weekly wage to be $210.41.
The claimant filed a timely petition to review generally contending the ALJ’s findings are not sufficient to permit appellate review, conflicts in the evidence were not resolved, the findings are not supported by the evidence, and the order is contrary to law. The ALJ claimant did not submit a brief in support of the petition to review. Therefore, it is difficult to ascertain the specific basis of the arguments contained in the petition to review.
The claimant’s assertion notwithstanding, we perceive no legal error in the ALJ’s method of calculating the average weekly wage. As the ALJ recognized, we held in our Order of Remand that Platte Valley Lumber Co. v. Industrial Claim Appeals Office, 870 P.2d 634 (Colo.App. 1994), precludes using the claimant’s 1997 average weekly wage when determining the average weekly wage at the time of the March 1998 injury. However, the ALJ correctly concluded that, subject to the limitation established by Platte Valley, he had discretion to use a method which would fairly calculate the claimant’s average weekly wage under the circumstances. Section 8-42-102(3), C.R.S. 2000; Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991). Here, the ALJ selected a period of time which he concluded would give a fair indication of the claimant’s expected earnings after the 1997 injury had the March 1998 injury not intervened. We cannot say the ALJ’s finding was beyond the bounds of reason such that it constitutes an abuse of discretion. See Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
Further, the evidence supports the ALJ’s determination of the average weekly wage. As we understand the ALJ’s order, he determined the claimant’s “gross earnings” based on the employer’s wage records, and subtracted FICA taxes paid by the employer. See Gregory v. Crown Transportation, 776 P.2d 1163 (Colo.App. 1989). Thus, the ALJ’s findings are sufficient to indicate the basis of the order, and the findings are supported by the record.
Insofar as the claimant’s petition to review may be construed as raising other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 19, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 17, 2001 to the following parties:
Sunny L. Ferrenburg, 3255 S. Parker Rd., Bldg. #1P8, Aurora, CO 80014
Cheryl Marchetti, Best Western Landmark Inn, 455 S. Colorado Blvd., Denver, CO 80246
Employers Insurance of Wausau, P. O. Box 419157, Kansas City, MO 64141-6157
Dawn Kaup, Lumbermens Mutual Casualty Co., P. O. Box 5347, Denver, CO 80217
Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
John M. Lebsack, Esq., 950 17th St., #2100, Denver, CO 80203 (For Respondents Best Western Landmark Inn and Lumbermens Mutual Casualty Co.)
William M. Sterck, Esq., 2695 W. Eisenhower Blvd., #200, Loveland, CO 80537 (For Respondents Best Western Landmark Inn and Employers Insurance of Wausau)
BY: A. Pendroy