W.C. No. 4-407-504Industrial Claim Appeals Office.
September 20, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ). The respondents contend the ALJ erroneously recalculated the claimant’s average weekly wage (AWW) to include a post-injury raise. We affirm.
The pertinent facts and applicable law are undisputed. On January 11, 1999, the claimant suffered a compensable injury. At the time of the injury the claimant was earning $11.20 per hour which results in an AWW of $455.09. On February 1, 1999, the claimant received an 80 cent per hour raise based upon job performance. Following the raise, the claimant earned $12 per hour which results in an AWW of $487.60. On March 24, 1999, the claimant resumed part-time, modified employment with the respondent-employer and was paid $12 per hour. The respondents admitted liability for temporary total, temporary partial and permanent disability benefits based on an AWW of $455.09.
AWW is generally determined by the wage the injured worker received at the time of the injury. However, the overall purpose of the statutory scheme is to “arrive at a fair approximation of the claimant’s wage loss and diminished earning capacity.”Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Therefore, if the specified method of computing the claimant’s average weekly wage will not render a fair computation of wages for “any reason,” the ALJ has discretionary authority under § 8-42-102(3), C.R.S. 2000, to use an alternative method to determine AWW. Campbell v. IBM Corp., supra. This discretionary authority includes the power to increase the claimant’s average weekly wage for periods of disability which occur subsequent to the initial period of disability where “manifest injustice” would result if the claimant’s benefits are calculated based on lower earnings at the time of the injury. Campbell v. IBM Corp., supra.
Exercising her discretionary authority under § 8-42-102(3), the ALJ determined it was manifestly unjust not to compensate the claimant for her actual loss of wages resulting from the 80 cent per hour raise on February 1, 1999. The ALJ found the injustice was compounded by the fact the claimant earned $12 per hour when she returned to modified employment and the respondents relied on the $455.09 AWW to reduce their liability for temporary partial disability benefits. See § 8-42-106(1), C.R.S. 2000. Under these circumstances, the ALJ increased the claimant’s AWW to $487.60 effective February 1, 1999. In so doing the ALJ expressly relied on Campbell v. IBM Corp., supra and our conclusions in Ebersbach v. United Food Commercial Workers’ Local No. 7, W.C. No. 4-240-475 (May 7, 1997).
On review the respondents contend Ebersbach v. United Food Commercial Workers’ Local No. 7, supra, does not support the ALJ’s order because unlike the facts of this claim, Ebersbach’s wage increase was based on a “contractual right.” We reject this argument.
We may not interfere with the ALJ’s determination of AWW in the absence of a clear abuse of discretion. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo.App. 1993). The standard on review of an alleged abuse of discretion is whether the ALJ’s order “exceeds the bounds of reason,” such as where it is not supported by substantial evidence or is contrary to law Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985); Coates Reid Waldron v. Vigil, supra.
Contrary to the respondents’ argument, the Panel in Ebersbach
did not conclude that a claimant’s post-injury wage increase must be based on a “contractual right” before the increase supports a redetermination of AWW. Rather, the Panel concluded that evidence the claimant’s union labor contract guaranteed the claimant a post-injury raise supported the ALJ’s finding that the future raise was ” sufficiently definite” to be included in the AWW.
Moreover, the Ebersbach the Panel expressly relied o Campbell v. IBM Corp., supra. The facts in Campbell involved a claimant who suffered three periods of temporary disability. The claimant’s AWW was greater at the time of each subsequent period of disability. Nothing in Campbell suggested that the wage increases were the result of a “contractual right” similar to the situation in Ebersbach. Nevertheless, the court concluded that it would be unjust to calculate the claimant’s “disability benefits in 1986 and 1989 on her substantially lower earnings in 1979.” Because the Campbell claimant actually received the wage increases there was no dispute the increases were “sufficiently definite” to be included in the AWW.
Similar to the facts in Campbell, this claimant’s raise is inherently definite. It is undisputed the claimant received an 80 cent per hour wage increase effective February 1, 1999, and all subsequent wages were paid at the rate of $12 per hour. Under these circumstances, this claim is factually indistinguishable from the circumstances in Campbell and the cause of the claimant’s wage raise is not determinative of whether the ALJ erroneously increased her AWW.
Furthermore, the ALJ’s findings of fact are supported by the evidence and the findings are consistent with the applicable law. Section 8-42-102(3); Campbell v. IBM Corp., supra. Therefore, we cannot say the ALJ’s order is an abuse of discretion.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 25, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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 September 20, 2000 to the following parties:
Rita Marr, 2226 Palm Dr., Colorado Springs, CO 80918
Current Inc., 1005 E Woodmen Rd., Colorado Springs, CO 80920-3181
Safeco Insurance Company of America, Christa Chambers, P.O. Box 5687, Denver, CO 80217-5687
Patrick C.H. Spencer II, Esq., 403 S. Tejon St., Colorado Springs, CO 80903 (For Claimant)
Carol A. Finley, 111 S. Tejon St., Ste. 700, Colorado Springs, CO 80903 (For Respondents)
BY: A. Pendroy