W.C. No. 4-422-345Industrial Claim Appeals Office.
October 30, 2000
FINAL ORDER
Union Carbide Corporation and Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance (respondents) seek review of an order of Administrative Law Judge Gartland (ALJ) which awarded permanent total disability benefits. The respondents contend the ALJ erroneously calculated the decedent’s average weekly wage (AWW). We disagree and, therefore, affirm.
On appeal, the pertinent facts are undisputed. The decedent suffered an occupational disease which was diagnosed as silicosis and caused by his exposure to uranium dust. The decedent was last injuriously exposed to the hazards of the disease in 1967, while working as a uranium miner for the respondent-employer. The decedent retired in 1996 at the age of 64. In 1999, the claimant died of cancer caused by the occupational disease. During the last six years of his employment, the decedent earned an average of $713.68 per week. Following his retirement, the decedent received $477 a month in pension benefits.
The decedent’s surviving spouse (the claimant) filed a claim for death benefits based on the decedent’s AWW during the last six years of employment. The respondents argued that because the decedent was unemployed at the time of his death, his AWW is zero and death benefits are payable at the minimum rate provided by §8-42-114, C.R.S. 2000.
However, finding that the decedent’s retirement was caused by the occupational disease, the ALJ determined that it would be unfair to penalize the claimant by basing the AWW on the decedent’s earnings at the time of death. Therefore, exercising her discretionary authority under § 8-42-102(3), C.R.S. 2000, and expressly relying on our conclusions in Thielsen v. Rockwell International Company, W.C. No. 4-263-037 (May 28, 1997), the ALJ calculated the decedent’s AWW based on his earnings during the six years prior to his retirement.
The ALJ also determined the decedent did not experience the onset of disability from the occupational disease until 1996. Consequently, the ALJ concluded that the decedent did not suffer an occupational disease until after April 1, 1994, and dismissed the SIF from the claim, pursuant to § 8-46-104, C.R.S. 2000 (closing the SIF to occupational diseases occurring on or after April 1, 1994).
I.
On review, the respondents contend that although §8-42-102(3) creates discretionary authority to alter the “method” by which the AWW is calculated, it does not authorize the ALJ to select the time period of earnings on which the AWW is to be calculated. We disagree.
Section 8-42-114, C.R.S. 2000, provides that the dependents of a deceased worker shall receive death benefits equal to sixty-six and two-thirds percent of the deceased worker’s AWW. The statute also provides that death benefits may not be less than twenty-five percent of the maximum state AWW. The statute does not prescribe the date or period of time to be used in determining the decedent’s AWW. However, applying the “rule of independence,” the courts have interpreted the predecessor to § 8-42-114 to require that death benefits be based on the deceased worker’s AWW at the time of death. Hoffman v. Industrial Claim Appeals Office, 872 P.2d 1367, 1370 (Colo.App. 1994); citing State Compensation Insurance Authority v. Industrial Commission, 724 P.2d 679
(Colo.App. 1986); Richards v. Richards Richards, 664 P.2d 254
(Colo.App. 1983).
Contrary to the respondents’ argument, § 8-42-102(3) affords the ALJ wide discretion in calculating the AWW under circumstances where the injured worker “has been ill” or if, “for any other reason,” the methods set forth in subsection 8-42-102(2) will not result in a fair computation of the average weekly wage. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). I Coates, the claimant suffered two injuries while working for the same employer. Upon returning to work after the first injury, the claimant was unable to perform her previous duties and consequently, was placed in another job which paid a lower rate. After the second injury, the ALJ awarded permanent total disability benefits based on the lower average weekly wage at the time of the second injury. However, the Supreme Court affirmed the determination of the Court of Appeals that this was unfair when, among other things, a greater degree of the permanent total disability was attributable to the first injury, the claimant worked in the first position far longer than she worked in the second position, and the claimant’s earnings were significantly higher in the first position.
Similarly, in Campbell v. IBM Corporation, 867 P.2d 77
(Colo.App. 1993), the Court held that it was manifestly unfair to base the claimant’s temporary disability benefits for subsequent periods of disability on the average weekly wage in effect at the time of the injury. The claimant initially suffered an injury and became disabled in 1979, but also had periods of disability 1986 and 1989, when her wages had significantly increased.
We note that Coates involved an accidental injury. However, the court held in Campbell that the injury was an occupational disease. Although the case law is clear that the average weekly wage in death cases is the wage at the time of death, the Campbell
court similarly acknowledged that § 8-42-102(2) provides the average weekly wage is to be calculated upon the earnings at the time of the injury. The court did not find the statute precluded a variation in the period of earnings in order to effect a fair average weekly wage, and we perceive no reason why the same departure may not be made in death cases. See also Coates, Reid Waldron v. Vigil, 856 P.2d at 854 [§ 8-42-102(3) accords discretion to use whichever calculation variables are indicated] cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (voluntary retirement did not preclude award of further disability benefits where condition worsened subsequent to retirement and reestablished causal link between injury and wage loss). The objective of the entire wage calculation is to arrive at a fair approximation of the injured worker’s wage loss and diminished earning capacity. Campbell v. IBM Corp., supra.
The respondents’ argue that Thielsen v. Rockwell International Company, supra, does not support the ALJ’s order. In Thielsen, the decedent died as a result of a beryllium disease caused by his employment. After taking a service retirement, the decedent continued to work. At the time of his death, the decedent had no wages but received pension and social security retirement benefits. However, the record contained evidence that the decedent’s post-retirement earnings were artificially depressed as a result of the beryllium disease. Under these circumstances, an ALJ applied § 8-42-102(3) and determined that the claimant’s pension benefits fairly reflected the claimant’s wage loss at the time of his death. Because retirement benefits are normally based on the employee’s years of service and past wage level, we concluded the ALJ did not abuse his discretion in calculating the decedent’s AWW based on the decedent’s retirement benefits. Our order was affirmed on appeal in Thielsen v. Industrial Claim Appeals Office, Colo. App. No. 97CA0975, April 9, 1998.
Although the ALJ in Thielsen adhered to the general rule by basing the AWW on the claimant’s income at the time of death, we did not hold, nor did the court suggest that this was the only alternative method of calculation that could be permitted, or that earnings from another period of time could not be used. To the contrary, the court cited Coates, Reid Waldron v. Vigil, supra, for the proposition that § 8-42-102(3) affords the ALJ broad discretion to determine whether the circumstances of a particular case require an alternative method of computing compensation benefits based upon the employee’s average weekly wage.
In any event, we are persuaded by Campbell and Coates that the ALJ’s discretionary authority under § 8-42-102(3) is broader than argued by the respondents, in those cases where manifest injustice would result from compensating a worker’s death based on wages earned as of the date of death. Accordingly, we have previously concluded that an ALJ may rely on § 8-42-102(3) to determine the period of earnings used to calculate the injured worker’s AWW. Berkenkotter v. Public Service Company of Colorado,
W.C. No. 3-644-433, (April 18, 1996), aff’d., Public Service Company of Colorado v. Industrial Claim Appeals Office (Colo.App. No. 96CA0711, March 6, 1997) (not selected for publication) (for purposes of determining permanent total disability rate, an ALJ may compute AWW based on wages earned at the time of the determination and not the date of injury); Foster v. Ralph Foster Sons, W.C. No. 3-101-998, (March 16, 1993). In Foster, we upheld an ALJ’s calculation of the AWW for death benefits based on wages earned on the date of injury, rather than the date of death, where the decedent was not working at the time of death due to a prolonged illness resulting from the industrial injury. We decline to depart from our prior conclusions.
II.
The ALJ’s calculation of AWW is binding in the absence of an abuse of discretion. See Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). An abuse of discretion exists when the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, supra; Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Here, the record supports the ALJ’s findings that the decedent’s retirement and lack of wage earnings at the time of his death were the result of the occupational disease. (See Tr. p. 15). Consequently, we perceive no error in the determination that it is unfair to base the AWW on the claimant’s lack of earnings at the time of death, and that it is appropriate to project what the decedent would have earned in the absence of the disease. Coates, Reid Waldron v. Vigil, supra; Campbell v. IBM Corp., supra. Furthermore, we conclude it was not beyond the bounds of reason for the ALJ to rely on evidence of the decedent’s wage record in the years immediately preceding his retirement to determine the AWW.
The respondents also allege that the ALJ erroneously dismissed the SIF. However, the respondents do not allege any specific reversible error, and we perceive none. See 1993 Colo. Sess. Laws, ch. 351, § 8-41-304(2) at 2140, effective April 1, 1994.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 5, 2000, 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, 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 October 30, 2000 to the following parties:
Ramona M. Pettigrew, P. O. Box 219, Shiprock, NM 87420
Union Carbide Corp., 39 Old Ridgebury Rd., Danbury, CT 06817-0001
James Keown, Subsequent Injury Fund, Division of Workers’ Compensation — Interagency Mail
Curt Kriksciun, Esq. and Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Robert C. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Andrew Katarikawe, Esq., Office of the Attorney General, 1525 Sherman St., 5th floor, Denver, CO 80203 (For Subsequent Injury Fund)
Raymond F. Callahan, Esq., 1660 S. Albion St., #425, Denver, CO 80222-4043
BY: A. Pendroy