W.C. No. 4-777-897.Industrial Claim Appeals Office.
October 28, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated June 3, 2009, that modified the claimant’s average weekly wage (AWW) and allowed the respondents to recover temporary total disability (TTD) benefits overpayments by recouping the overpayments from any future permanent disability benefits. We affirm.
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). The ALJ made the following findings of fact. The claimant suffered a compensable injury on November 18, 2008. The respondents filed a general admission of liability admitting to an AWW of $1,100, which entitled the claimant to TTD benefits of $733.33 per week. This admission was based on a statement made by the claimant. After the insurer filed the admission it was notified by the employer that the claimant’s AWW was actually $476.32. The ALJ examined the employer’s wage records for three months preceding the injury, excluded “un-representative weeks” and found that the claimant’s AWW was $572.10 and his TTD rate was $383.31. The ALJ determined that the respondents had proved by a preponderance of the evidence that the claimant was overpaid $350.52 per week from November 19, 2008 through May 20, 2009. Therefore, the ALJ determined that the claimant’s AWW is $572.10 and ordered that the respondents may recover TTD benefit overpayments from any future permanent disability benefits.
The petition to review contains only general allegations of error, derived from § 8-43-301(8) C.R.S. 2009.
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Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
The ALJ is vested broad discretion to determine a fair AWW for a workers’ compensation claimant. Avalanche Industries, Inc. v. Clark 198 P.3d 589 (Colo. 2008). Indeed, the Act provides that “in each particular case, [the ALJ] may compute the [AWW] of said employee in such other manner and by such other method as will, in the opinion of [the ALJ] based upon the facts presented, fairly determine such employee’s [AWW].” Section 8-42-102(3), C.R.S. 2009.
It is provided in § 8-42-102(2) C.R.S. 2009 that AWW for the purpose of computing benefits provided under the Workers’ Compensation Act (Act) shall be calculated upon the monthly, weekly, daily, hourly, or other remuneration which the injured or deceased employee was receiving at the time of the injury. Section 8-42-102(2)(b) provides that where the employee is being paid by the week for services under a contract of hire, said weekly remuneration at the time of the injury shall be deemed to be the weekly wage for the purposes of the Act. Here, the ALJ examined the employer’s records of the claimant’s weekly earnings and, exercising his discretion, excluded, to the claimant’s advantage, certain weeks where the claimant earned less than normal. The ALJ then based his determination of AWW on the results of that examination. We are not persuaded that the ALJ committed any reversible error regarding the issue of AWW.
We further note that the ALJ’s determination is supported by § 8-43-207(1)(q), C.R.S. 2009, which provides that the ALJ is empowered to require repayment of overpayments. Here, the ALJ found that an error had been made in the calculation of AWW and allowed the insurer to recoup the overpayments made in TTD benefits against future permanent disability benefits. We are not persuaded by the claimant’s petition to review that the ALJ committed any reversible error regarding the issue of recoupment of overpayments.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 3, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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ROBERT D SCOTT, 7617 GRAY WAY, ARVADA, CO, 80003 (Claimant)
180 CONNECT, INC., Attn: ADAM MORTON, 11111 WEST 8TH AVE, UNIT C, LAKEWOOD, CO, 80215 (Employer)
LIBERTY MUTUAL INSURANCE COMPANY, Attn: BRENT A HERRIN, P O BOX 168208, IRVING, TX, 75016-8208 (Insurer)
BENDINELLI LAW OFFICE, PC, Attn: JERRY SUMNER, ESQ., C/O: PLAZA NORTH, SUITE 10, 11184 HURON STREET, DENVER, CO, 80234 (For Claimant)
LAW OFFICES OF RICHARD P MYERS, Attn: APRIL D. MOORE, ESQ., 1120 LINCOLN STREET, SUITE 1606, DENVER, CO, 80203 (For Respondents)
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