W.C. No. 4-378-631Industrial Claim Appeals Office.
July 20, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined average weekly wage. We affirm.
In July 1997, the claimant was hired by Memorial Hospital to work as a respiratory nurse. It is undisputed the claimant was paid an hourly wage. On January 13, 1998, the claimant suffered compensable injuries. The respondent filed a corrected general admission for temporary disability benefits based upon an average weekly wage of $541.35. The claimant objected and filed an application for hearing.
The ALJ found that the claimant was a part-time employee who did not have a fixed work schedule. The ALJ also found that the claimant’s rate of pay varied. Under these circumstances, the ALJ determined that the claimant’s average weekly wage is fairly calculated from the claimant’s total earnings during the employment, divided by the total number of days of employment. Based upon these calculations, the ALJ ordered the respondent to pay temporary disability benefits for all admitted periods based upon an average weekly wage of $571.59.
On review, the claimant contends that it was the respondent’s burden to prove that it calculated her average weekly wage in accordance with § 8-42-102(2)(d), C.R.S. 1998, which governs the calculation of average weekly wage for hourly paid employees. Consequently, the claimant argues the ALJ erroneously shifted the burden of proof by requiring her to prove her average weekly wage. We perceive no error.
It is the claimant’s burden to prove her entitlement to benefits by a preponderance of the evidence. Section 8-43-201, C.R.S. 1998; Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). It follows that insofar as the claimant sought an award of temporary disability benefits based upon an average weekly wage greater than $541.35, the ALJ did not err in placing the burden of proof on the claimant.
Next, the claimant contends that the ALJ erred in failing to calculate average weekly wage in accordance with § 8-42-102(2)(d). Again we disagree.
Section 8-42-102(2)(d) states that where the claimant is paid on an hourly rate:
“the weekly wage shall be determined by multiplying the hourly rate by the number of hours in a day during which the employee was working at the time of the injury or would have worked if the injury had not intervened, to determine the daily wage; then the weekly wage shall be determined from said daily wage” (Emphasis added).
However, § 8-42-102(3), C.R.S. 1998, states that where “the foregoing methods” cannot fairly compute the claimant’s average weekly wage for any reason, the ALJ may compute the average weekly wage in “such other manner” as will fairly determine the average weekly wage. Thus, the ALJ has broad discretion to determine the number of hours the claimant “would have worked” had the injury not occurred. Coates, Reid Waldron v. Vigil, 856 P.2d 850
(Colo. 1993).
Because the ALJ’s authority to determine the average weekly wage is discretionary, we may not interfere with the order unless an abuse of discretion has been shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo.App. 1993). An abuse does not exist unless the order is beyond the bounds of reason, as where it is unsupported by the evidence or is contrary to law. Coates Reid Waldron v. Vigil, supra.
Where the ALJ’s findings of fact are supported by substantial evidence in the record, we may not interfere with them. Section 8-43-301(8), C.R.S. 1998. In applying the substantial evidence test, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and plausible inferences he drew from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ determined that the claimant’s wage could not be fairly determined under § 8-42-102(2)(d) because the claimant’s hours and rate of pay varied. The ALJ’s finding is supported by the claimant’s testimony and the employer’s payroll records. Consequently, we cannot say the ALJ erred in failing to calculate average weekly wage under § 8-42-102(2)(d).
Nevertheless, the claimant contends the ALJ abused his discretion in computing her average weekly wage based upon her total earnings with the respondent, instead of her earnings during the last 10 days preceding the industrial injury which equal an average weekly wage of $844.81. In support, the claimant contends the record does not support the ALJ’s finding that the claimant was a “part-time” employee. The claimant also contends the ALJ failed to resolve conflicts in the evidence concerning her status as a “part-time” employee. We reject these arguments.
The ALJ did resolve conflicts in the evidence. The ALJ recognized that the claimant worked more hours during the months of December 1997 and January 1998. However, the ALJ was not persuaded that the increased hours reflected a permanent change in the claimant’s status from “part-time” to “full-time” employee. The ALJ’s finding is supported by the claimant’s testimony that she was hired as a “part-time” nurse, that she had no set schedule, and that her hours and rates of pay varied due to shift differentials, “call-backs,” and overtime. (Tr. pp. 14-16, 19). Consequently, the ALJ’s finding must be upheld.
In any case, the ALJ’s finding that the claimant was a “part-time” employee was not dispositive of his average weekly wage determination. To the contrary ALJ determined that, due to the fluctuations in the claimant’s work schedule and hourly rate of pay, he could not determine the number of hours the claimant “would have worked if the injury had not intervened” by simply looking at her past work schedule. Under these circumstances, the ALJ calculated average weekly wage using the claimant’s total earnings divided by the total number of days, as opposed to hours, during the claimant’s employment. In so doing, the ALJ excluded consideration of two paychecks which were unusually low, based upon his finding that the two paychecks under represented the claimant’s normal work activity. The record supports the ALJ’s determination. Consequently, we cannot say the ALJ’s calculations exceed the bounds of reason, and we perceive no abuse his discretion.
We note that the respondent filed a “Motion to Strike the Claimant’s Reply Brief.” It is unclear whether the ALJ was aware of this motion before transmitting the case for our review. In any event, the claimant’s further arguments do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 18, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed July 20, 1999 the following parties:
Nancy Glaser, 1710 Northview Drive, Colorado Springs, CO 80909
Vickie Alexander, Memorial Hospital, 1400 E. Boulder, Colorado Springs, CO 80909
Kenneth J. Shakeshaft, Esq., 1530 S. Tejon, Colorado Springs, CO 80906 (For Claimant)
Richard M. Lamphere, Esq., 111 S. Tejon, Ste. 700, Colorado Springs, CO 80903 (For the Respondent)
BY: A. Pendroy