W.C. No. 4-439-762Industrial Claim Appeals Office.
January 7, 2002
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) insofar as the ALJ awarded permanent partial disability benefits for 31 percent whole person impairment based upon an average weekly wage of $714.25. We affirm the order in part, set it aside in part, and remand the matter to the ALJ for additional findings concerning the average weekly wage.
The claimant was employed by Asphalt Paving Company as a truck driver. On May 6, 1998, the claimant suffered injuries when the dump truck she was driving was struck by another vehicle. At the time of the injuries the claimant was paid $10.80 per hour and $16.52 per hour for hours over 40 per week. The respondents admitted an average weekly wage of $294.18.
On January 14, 2000, Dr. Reinhard placed the claimant at maximum medical improvement with 30% whole person impairment due to 16 percent impairment to the cervical spine, 8 percent impairment to the thoracic spine and 10 percent mental impairment.
Dr. Gerber conducted a Division-sponsored independent medical examination (DIME) on the issue of medical impairment. Dr. Gerber assigned a 36 percent permanent impairment rating based on 17 percent impairment to the cervical spine, 15 percent impairment to the lumbar spine and 10 percent mental impairment.
Thereafter, the claimant was examined by Dr. Orent, who assigned a total rating of 5 percent based on mental impairment. Dr. Orent opined that because the lumbar spine was not injured in the industrial accident, Dr. Gerber erroneously included a lumbar spine impairment rating. Relying on Dr. Orent’s opinions, the respondents applied for a hearing to overcome the DIME rating.
Crediting the opinions of Dr. Orent, the ALJ found the respondents overcame Dr. Gerber’s rating for permanent medical impairment to the lumbar spine. Further, the ALJ found the DIME report translated into a 0 percent rating for thoracic spine impairment. Giving the most weight to the opinions of Dr. Reinhard, the ALJ found there was clear and convincing evidence Dr. Gerber’s rating was incomplete insofar as he failed to include an 8 percent rating for impairment to the thoracic spine. Consequently, the ALJ determined the claimant sustained a combined whole person impairment rating of 31 percent based on 16 percent impairment to the cervical spine, 8 percent impairment to the thoracic spine and 10 percent psychological impairment.
In determining the average weekly wage, the ALJ found the claimant’s hours “varied” (Finding of Fact 38). In particular, the ALJ found that from the end of November 1997 to the end of April 1998, the claimant’s work hours were minimal because it was the “slow time of year” for the employer. (Finding of Fact 39). However, he found that from approximately mid April to mid November the claimant worked 50-60 hours per week.
Exercising his discretionary authority under § 8-42-102(3), C.R.S. 2001, the ALJ determined the most “accurate and objective” reflection of the claimant’s average weekly wage for purposes of calculating the permanent disability award was derived from averaging the claimant’s last three paychecks prior to the industrial injury, which produced an average weekly wage of $714.25.
I.
On review, the respondents first contend they had no notice the ALJ would consider whether the industrial injury caused rateable impairment to the thoracic spine. Therefore, the respondents contend the ALJ’s order was a denial of due process of law. We disagree.
Due process requires that where an administrative adjudication turns on issues of fact, both parties must be afforded advance notice of the pending adjudication in order to prepare evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). It is for this reason that Rule of Procedure VIII(A)(5), 7 Code Colo. Reg. 1101-3 at 21, prohibits a party from adding an “issue” after the filing of the application or response “except on agreement of all parties, or approval of an administrative law judge for good cause shown.”
Here, the respondents’ Application for Hearing dated May 12, 2000, listed the issue of permanent partial disability and stated, “Respondents contest the impairment ratings of David Reinhard and Daniel Gerber.” Furthermore, at the commencement of the hearing on August 21, 2000, the respondents’ attorney announced that the respondents were not only seeking to overcome the DIME physician’s rating but that they also opposed Dr. Reinhard’s rating and, the respondents contended “neither rating was correct.” (Tr. p. 3).
Unlike the DIME physician, Dr. Reinhard included a rating for permanent impairment to the thoracic spine. Because the respondents expressly disputed the validity of Dr. Reinhard’s rating, we fail to perceive how the respondents were surprised by the ALJ’s adjudication of the existence of permanent impairment to the thoracic spine, even though the claimant did not contest the DIME physician’s rating. The record reveals the respondents fully recognized that the claimant’s overall impairment rating was at issue, and the significance of Dr. Reinhard’s rating in resolving the issue. Consequently, the respondents due process rights were not violated.
We also reject the respondents’ contention that the ALJ misconstrued the DIME report as a 0 percent rating for thoracic spine impairment. Dr. Gerber’s examination revealed tenderness in the thoracic spine. However, he concluded there was “no evidence of thoracic spine dysfunction” and included no rating for permanent impairment to the thoracic spine. Based upon this evidence, the ALJ could reasonably infer that Dr. Gerber was of the opinion the industrial injury caused no rateable impairment to the thoracic spine.
Furthermore, there is substantial evidence in the record to support the ALJ’s finding that it was highly probable Dr. Gerber erred in failing to include a rating for permanent impairment to the thoracic spine. In fact, Dr. Orent assigned a 6 percent rating for thoracic spine impairment before viewing videotapes of the claimant’s activities. Dr. Orent also admitted Dr. Reinhard’s thoracic spine rating was “pretty close” to the rating he assigned. (Tr. November 6, pp. 38, 29). Consequently, we may not disturb the ALJ’s determination that the claimant is entitled to permanent partial disability benefits based upon a combined rating of 31 percent.
II.
The respondents also contend the ALJ erred in calculating the average weekly wage. The respondents argue the ALJ’s determination fails to account for the seasonal nature of the claimant’s employment. We conclude the ALJ’s findings of fact are insufficient to permit appellate review and, therefore, we remand the matter for additional findings on the issue of average weekly wage.
The applicable law is undisputed. Section 8-42-102(3), C.R.S. 2001, affords the ALJ wide discretion to calculate the average weekly wage by such “manner” or by “such other method” as will fairly determine the claimant’s wage. This includes the authority to calculate the average weekly wage for the payment of permanent medical impairment benefits based upon a claimant’s higher earnings after the injury where “manifest injustice” would result if the claimant’s benefits were calculated based on lower earnings at the time of the injury. Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996); Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). This is true because the objective in calculating the average weekly wage is to arrive at a “fair approximation of the claimant’s wage loss and diminished earning capacity.” Campbell v. IBM Corp., 867 P.2d at 82.
We may not interfere with the ALJ’s calculation of average weekly wage unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, supra. The standard on review of an alleged abuse of discretion is whether the ALJ’s order “exceeds the bounds of reason,” 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).
Here, the ALJ found that the “most accurate and objective reflection of Claimant’s average weekly wage” was derived from averaging the claimant’s last three paychecks before the industrial injury. (Finding of Fact 39). However, the ALJ’s order contains no specific findings of fact which explain why this method results in a fair approximation of the claimant’s diminished earning capacity. This is especially true in view of the ALJ’s determination that there were “seasonal fluctuations” in the claimant’s pay but the ALJ used a three week period from the busy period when calculating the wage. (See Tr. November 6, 2000, p. 79). Consequently, we are unable to ascertain whether the ALJ abused his discretion in determining the average weekly wage, and the matter must be remanded for additional findings.
In remanding the matter we should not be understood as concluding that the method employed by the ALJ to calculate the average weekly wage is not fair. We merely conclude the ALJ’s findings are insufficient to ascertain the basis for his determination in view of the seasonal nature of the employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 20, 2001, is set aside insofar as it requires the respondents to pay permanent partial disability benefits based on an average weekly wage of $714.25, and the matter is remanded to the ALJ for additional findings of fact concerning this issue.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed January 7, 2002 to the following parties:
Sherry L. Mosley, 9496 W. 64th Way, Arvada, CO 80004
Jeff Keller, Asphalt Paving Company, 14802 W. 44th Ave., Golden, CO 80403
Great States Insurance Company, Western Guaranty Services, 1720 S. Bellaire St., #408, Denver, CO 80222-4320
Ralph Ogden, Esq., 1750 Gilpin St., Denver, CO 80218 (For Claimant)
Larry D. Lee, Esq., 5390 Manhattan Circle, 2nd floor, Boulder, CO 80303-4219 (For Claimant)
James R. Clifton, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Chick