W.C. No. 4-592-535.Industrial Claim Appeals Office.
January 26, 2005.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) insofar as it determined the average weekly wage (AWW). We set aside the contested portion of the order and remand for entry of a new order.
The ALJ found the claimant, a veterinary assistant, sustained a compensable injury in April 2003 and was entitled to temporary total disability benefits from September 23, 2003, until February 19, 2004. These determinations are not now contested.
The claimant’s AWW was a disputed issue at the hearing. Relying on documentary evidence submitted by the respondents (Exhibit A), the ALJ found that for the period January 1, 2003, through April 30, 2003, the claimant earned $6,624.01 in “combined regular and overtime hours” plus $33.82 per week in health insurance benefits. The ALJ apparently determined the claimant’s AWW to be $410.21 by dividing the total earnings by 17 weeks then adding the weekly health insurance benefit.
On review, the claimant contends the ALJ’s calculation is unsupported by the evidence and represents an abuse of discretion. The claimant argues that the ALJ’s calculation fails to account for $328.50 in “overtime hourly rate 2” earnings reflected on Exhibit A. We conclude the matter must be remanded for entry of a new order on this issue.
The ALJ is granted wide discretion in the calculation of the AWW, and his determination will not be disturbed unless an abuse of discretion is shown. An abuse of discretion occurs if the order is beyond the bounds of reason, as where it is contrary to law or unsupported by substantial evidence in the record. Section 8-42-102(3), C.R.S. 2004; Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867, 869 (Colo.App. 2001).
Generally, we must uphold the ALJ’s findings of fact is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). However, the ALJ must enter sufficient findings of fact to reveal the legal and factual bases of the order. Section 8-43-301(8) (panel may set aside order if findings not sufficient to support appellate review); Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
Here, respondents’ Exhibit A contains evidence indicating the claimant earned “hourly overtime” pay and “overtime hourly rate 2” pay. The ALJ credited respondents’ Exhibit A by including the “hourly overtime” in the AWW calculation, but made no findings concerning the “overtime hourly rate 2” pay, and did not include this pay in the AWW. We are unable to ascertain from the ALJ’s findings whether he noted the existence of the “overtime hourly rate 2” pay, and if so, why he determined not to include it in the AWW calculation. Consequently, the ALJ’s findings are insufficient to support appellate review of the AWW determination.
In reaching this result, we are aware of the respondents’ argument that Dr. Harris testified that Exhibit A shows “year-to-date of 6,070.50 plus overtime of 553.51.” However, in context the questioner merely asked whether Exhibit A was generated by the employer’s computers, not whether it accurately reflects the claimant’s pay. Neither did the questioner ask the significance, if any, of “overtime hourly “rate 2” pay mentioned on Exhibit A. (Tr. Pp. 34). Thus, in the absence of any specific findings concerning this testimony, we are unable to infer that the ALJ declined to include rate 2 pay in the AWW based on this testimony.
Under these circumstances, the matter must be remanded to the ALJ to enter a new order with respect to the claimant’s AWW. The ALJ shall determine whether or not “overtime hourly rate 2” pay should be included in the AWW, and shall enter specific findings of fact and conclusions of law explaining the basis of that determination.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 12, 2004, is set aside insofar as it excluded “overtime hourly rate 2” from the claimant’s AWW, and the matter is remanded for entry of a new order on this issue. A new hearing is not authorized by this order, and the ALJ shall rely on the existing record when reconsidering the issue. If the AWW is altered, the ALJ shall adjust the temporary disability award accordingly.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Karen Greene, Harris Equine Hospital, Grand Junction, CO, Atlantic Mutual Insurance Company, c/o CCMSI, Denver, CO, Leslie J. Castro, Esq., Grand Junction, CO, (For Claimant).
Michael A. Perales, Esq., Denver, CO, (For Respondents).