W.C. No. 4-705-420.Industrial Claim Appeals Office.
May 6, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated January 31, 2008 that determined the claimant failed to establish by a preponderance of the evidence that he is entitled to an increase in the admitted average weekly wage (AWW). We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant worked for the employer at a research facility in Antarctica. The claimant sustained an admitted industrial injury and the respondents admitted for AWW based on the claimant’s earnings. The claimant was provided with a dormitory-style room he shared with others and received three meals a day and unlimited access to snacks. The only people living in Antarctica are employees of a few scientific research stations. The claimant presented no evidence regarding the value of room and board in Antarctica. Instead the claimant testified regarding the amount he currently pays for rent in Arvada, Colorado and the amount he currently pays for food. The ALJ concluded that the claimant failed to establish that he was entitled to an increased AWW based on the room and board he received from the employer while working in Antarctica.
On appeal the claimant contends that the ALJ ignored the claimant’s right to have room and board included in his AWW under §8-40-201(19)(b), C.R.S. 2007. The claimant argues that the ALJ abused his discretion by concluding that the “market” where
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the room and board was provided is not comparable to that of the continental United States. We are not persuaded that the ALJ abused his discretion.
Section 8-40-201(19)(b) provides that the term “wages” shall include the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts in each particular case. The reasonable value of board and lodging is a question of fact, and we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; Western Cultural Resource Management, Inc. v. Krull, 782 P.2d 870 (Colo.App. 1989); Makuski v. Golden Corral, W. C. No. 4-337-805 (February 15, 2001). Substantial evidence is that quantum of proof which would support a reasonable belief in the existence of a fact without regard to conflicting evidence or inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993) Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Here the ALJ found that the reasoning and conclusion reached in Anders v. Raytheon Technical Services, W. C. No. 4-524-416 (February 23, 2005) were applicable to the present case. Anders involved the same respondents in a dispute over AWW, specifically the value of food and housing provided to a claimant in Antarctica. In Anders the ALJ found the claimant had failed to present any direct evidence there was an established market value for food or housing in Antarctica. Moreover, the ALJ in Anders was not persuaded by the claimant’s argument that a per diem paid to the claimant while he was in New Zealand represented a credible and persuasive basis for determining the value of rooms and food in Antarctica. The respondents had argued that New Zealand is a market society featuring demand and supply forces for both lodging and food and it could not be compared to Antarctica which is a completely artificial society made up exclusively of Raytheon employees. The panel in Anders
found that this argument and the ALJ’s adoption of it represented a plausible interpretation of the evidence and declined to substitute its judgment for that of the ALJ concerning the weight of the evidence.
Here the ALJ, as in Anders, found that the claimant had presented no evidence regarding the value of room and board in Antarctica. The ALJ noted that the value of room and board in Arvada, Colorado is based on the market forces of supply and demand and thus cannot be compared to the artificial society of Antarctica that is devoid of comparable market forces.
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The claimant argues that the inclusion of the value of room and board in AWW is not optional under § 8-40-210(19)(b) and as a matter of law the value of room and board is to be determined by reasonable replacement value. The claimant argues that the ALJ erred as a matter of law in failing to increase the claimant’s AWW based on evidence the claimant submitted at the hearing on the amount he paid for room and board in Colorado after he returned from Antarctica. The claimant relies o Buchanan v. Louis Mack Trust, W.C. 4-133-614 (March 03, 1994) for this proposition.
In Buchanan the panel noted that § 8-40-201(19) permits the ALJ to consider the unique circumstances of a case in calculating the “reasonable value” of “housing” provided by the employer. In Buchanan the panel stated: “We can imagine that, in some circumstances, the `reasonable value’ of housing might be calculated based upon the `replacement cost’ of such housing on the open market.” In Buchanan, the ALJ did not accept the evidence presented by the claimant on the replacement rental value of his new apartment. Here, as in Buchanan, we do not read the ALJ’s order as refusing to consider evidence concerning replacement cost, only that the ALJ found the evidence the claimant presented in the unique circumstances of this case unpersuasive concerning the reasonable value of the room and board.
The claimant bears the burden of proof to establish the right to include board and housing in the AWW, and to provide a factual basis for determining the value of these fringe benefits. Section 8-43-201, C.R.S. 2007; Anderson-Capranelli v. Republic Industries, W. C. No. 4-416-649 (November 25, 2002). Here the ALJ specifically found that the claimant had failed to provide a factual basis for determining the value of room and board in Antarctica. Findings of Fact, Conclusions of Law, and Order at 3, ¶ 8. We cannot say that the ALJ erred as a matter of law in determining that the evidence presented by the claimant on the value of room and board in Arvada, Colorado was insufficient to show the value of the room and board provided for by the employer in Antarctica. Although the testimony and evidence in the record might have been sufficient to support an order increasing the AWW, the record does not compel the ALJ to have reached the conclusion urged by the claimant. We disagree with the claimant’s implicit argument that the evidence could only have been weighed in one way, and permitted only the single result sought by the claimant.
It is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The ALJ is not required to credit evidence even if it is unrebutted. See Cary v. Chevron, U.S.A., 867 P.2d 117 (Colo.App. 1993); Reposa v.
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Adams County School District 50, W. C. No. 4-561-222 (April 21, 2004). We decline to interfere with the ALJ’s factual findings and therefore must affirm the order.
IT IS THEREFORE ORDERED that the ALJ’s order issued January 31, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ Curt Kriksciun
_____ Thomas Schrant
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BRUCE ILER, ARVADA, CO, (Claimant).
RAYTHEON TECHNICAL SERVICES COMPANY, Attn: ALENA ELLISON, CENTENNIAL, CO, (Employer).
LIBERTY MUTUAL INSURANCE COMPANY, Attn: GINA BREWTON, IRVING, TX, (Insurer).
LAW OFFICES OF O’TOOLE SBARBARO, Attn: NEIL O’TOOLE ESQ., DENVER, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: DAVID G KROLL, ESQ., DENVER, CO, (For Respondents).
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