W.C. No. 4-632-128.Industrial Claim Appeals Office.
December 30, 2005.
FINAL ORDER
The claimant seeks review of a corrected order dated September 29, 2005, of Administrative Law Judge Jones (ALJ) that determined the respondent was liable to the claimant for temporary total disability based on an average weekly wage (AWW) calculated on a daily basis. We affirm.
The ALJ’s pertinent findings of fact are as follows. The respondent assigns jobs to laborers on a daily basis though daily job tickets or job slips. No laborer is guaranteed any period of employment. There are no job assignments other than the daily job tickets. The respondent pays laborers on a daily basis.
The claimant has a long history of sporadic employment with the respondent. On June 25, and July 8, 2004, the claimant was employed at Ford Construction, a position he obtained through the respondent. The claimant alleges that he suffered a previous work injury at Ford Construction on the referenced dates.
The claimant resumed his employment through the respondent on August 12, 2004. The claimant was assigned various jobs at various wages. Since August 2004, the claimant has been employed by the respondent at various job sites earning between $6.25 per hour and $10.00 per hour. The claimant was paid on a daily basis according to the hours worked.
The claimant suffered an admitted injury on November 2, 2004, which is the subject of this claim. The respondent admitted liability for an AWW of $310.66 based on the claimant’s actual earnings of $3,769.10. during the 12-week period preceding the injury.
On the day of the injury, the claimant was assigned to work at a construction site, earning $10.00 per hour. However, the ALJ found that since August 2004, the claimant had been employed by the respondent at various job sites earning between $6.25 per hour and $10.00 per hour. Further, the ALJ found the evidence established that the claimant earned $3,769.10 over a 50-day period, for an average of $75.38 per day, and that the claimant worked an average of 4.15 days per week. Based on these findings, the ALJ determined that the claimant earned on average $314.09 per week, and is entitled to an AWW of $314.09 based on his earnings during the 12-week period preceding the injury.
On review, the claimant argues that he was paid on an hourly basis at the rate of $10.00 per hour, and that he worked an average of 40 hours a week for an average weekly wage of $400.
In his petition to review, the claimant makes certain factual assertions. To the extent they are new allegations, we cannot consider them for the first time on review. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Moreover, the claimant has failed to provide a transcript of the hearing, and therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Section 8-42-102(2), C.R.S. 2005, provides that average weekly wage shall be based on the remuneration the claimant received at the time of the injury. Where the claimant is paid on a per diem basis, the weekly wage is calculated by multiplying the daily wage by the number of days and fractions of days in the week during which the claimant was working under the contract of hire at the time of the injury. Section 8-42-102(2)(c). 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” from the industrial injury. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
Section 8-42-102(3) affords the ALJ wide discretion to calculate average weekly wage by such “manner” or by “such other method” as will fairly determine the claimant’s average weekly wage. We may not interfere with the ALJ’s failure to exercise her discretionary authority unless an abuse of discretion is shown 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.
There is support for claimant’s position in exhibit 1 which does show several days of pay at the hourly basis of $10.00. However, the same exhibit shows several regular week days not worked by the claimant in September and October before the November 2004 injury. Consequently, Exhibit 1 can be interpreted in different ways. Since there is no transcript of the hearing, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, supra.
The record contains evidence that the claimant was paid on a daily basis and his petition to review admits he was paid daily. Under these circumstances, we cannot say the ALJ abused her discretion by calculating the average weekly wage in accordance with § 8-42-102(c). Accordingly, we perceive no basis on which to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 29, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Dona Halsey
____________________________________ Tom Schrant
Danny Reynolds, Grand Junction, CO, Debra Mejia, Labor Ready, Tacoma, WA, Lorie Ragsdale, ACE, U.S.A., Portland, OR, Erica A. Weber, Esq., Denver, CO, (For Respondents).