W.C. No. 4-331-168Industrial Claim Appeals Office.
January 16, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), insofar as it determined the claimant’s average weekly wage. We affirm.
The ALJ found that the claimant and her husband entered into an agreement with the respondent-employer (Millers) under which they would receive a rent-free motel room in exchange for shoveling snow on the Millers’ premises. On February 6, 1997, the claimant injured her back while shoveling snow. The respondents admit that the claimant has been temporarily totally disabled since the date of the injury.
Following the injury, the claimant and her husband were allowed to remain in the motel room. However, on March 9, 1997, the claimant and her husband became involved in a domestic dispute and the police were called. Both the claimant and her husband left the motel room and spent the night in separate locations. The following day, March 10, 1997, Mr. Miller asked the claimant to move out of the motel room due to the domestic incident. However, the Millers allowed the claimant’s husband to return to the motel within a “couple of days.”
The ALJ found that the reasonable value of the motel room was $400 per month, or $92.30 per week. Applying § 8-40-201(19)(b), C.R.S. 1997, the ALJ determined that the value of the motel room constituted “wages,” and should be included in the claimant’s average weekly wage after she was forced to move out on March 10.
I.
On review, the respondents contend that the ALJ erred in including the value of the motel room in the claimant’s average weekly wage after she “voluntarily” vacated the hotel room. In support of this proposition, the respondents cite PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). We find no error.
Section 8-40-201(19)(b) provides that the term “wages” includes the “reasonable value of board, rent, housing, and lodging received from the employer.” The statute further provides that if the employer continues to provide a fringe benefit “enumerated” in the statute, “such advantage or benefit shall not be included in the determination of the employee’s wages so long as the employer continues to make such payment.” The purpose of this statute is to include the value of specific fringe benefits in the claimant’s average weekly wage because “non-cash benefits can comprise a substantial part of a worker’s wages.” Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539, 542 (Colo.App. 1995).
The respondents’ assertion notwithstanding, nothing in this statutory scheme allows an ALJ to determine the claimant’s “wages” based on an inquiry into the reason an employer discontinued payment of a fringe benefit. To the contrary, the plain and ordinary meaning of the statute is that the reasonable value of housing is to be included in calculating the claimant’s wages, and the only exception is where the employer continues to provide housing subsequent to the injury. Further, we have no authority to invent a remedy where none is contained in the statute. Cf. Shelley v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0775, December 26, 1997).
Moreover, the respondents’ argument finds no support in the case of PDM Molding, Inc. v. Stanberg. In fact, the PDM Molding
case has nothing whatsoever to do with the calculation of a claimant’s wages. Instead, that case focuses on whether a post-injury event, such as the loss of temporary employment, can be considered the cause of the claimant’s subsequent wage loss. The court derived its causation analysis from § 8-42-103(1), C.R.S. 1997, which requires that the injury or occupational disease be the “cause” of the claimant’s “disability.”
If we were to adopt the respondents’ argument, the principles underlying PDM Molding, Inc. v. Stanberg, supra, would be substantially undercut. PDM Molding recognized that, even if the claimant is at fault for the loss of post-injury employment, she may reestablish entitlement to temporary disability benefits if she proves that the post-separation wage loss is to “some degree” caused by the industrial injury. Here, the respondents propose to define away the claimant’s wages, based on the claimant’s alleged “fault,” without permitting the additional analysis called for i PDM Molding. Neither PDM, nor any other authority of which we are aware, permits such a result. Therefore, we decline to adopt the respondents’ analysis.
II.
The respondents next contend that the ALJ erred in determining the value of the motel room. They argue that, because the claimant shared the room with her husband, the ALJ should have included only one-half the monthly value of the room when determining the claimant’s average weekly wage. We disagree.
Under § 8-40-201(19)(b), the ALJ was required to find the “reasonable value” of the motel room based on the circumstances in this “particular case.” Consequently, determination of the room’s reasonable value was a question of fact for the ALJ. Western Cultural Resource Management, Inc. v. Krull, 782 P.2d 870
(Colo.App. 1989).
Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the Millers testified that the monthly value of the room was $300 to $400 per month. (Tr. p. 76). Thus, there is ample evidence establishing the overall value of the room.
The ALJ was not required to conclude that the overall value of the room was diminished simply because the claimant shared the room. Moreover, we cannot say the ALJ erred in finding that the total value should be included in the claimant’s average weekly wage. The claimant, not her husband, was required to move out of the room. Thus, the claimant was required to find alternative housing and sustained a complete loss. Accordingly, the evidence fully justifies the ALJ’s findings. Western Cultural Resource Management, Inc. v. Krull, supra.
Finally, we note the claimant’s argument that the ALJ’s order undervalues the room. However, the claimant did not file a petition to review the ALJ’s order. Consequently, this issue is not properly before us. See § 8-43-301(2), C.R.S. 1997 (party dissatisfied with order must file petition to review); Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991) (failure timely to file petition to review is jurisdictional).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 3, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed January 16, 1998 to the following parties:
Stephanie P. Reynolds, 313B West 36th Avenue, Amarillo, TX 79110
James Miller Joyce Miller d/b/a Rivers Edge Motel, P.O. Box 472, Ouray, CO 81427-0472
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Bonner E. Templeton, Esq., 650 S. Cherry St., Ste. 820, Denver, CO 80246-1806 (For the Claimant)
Thomas Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
By: ________________________________