W.C. No. 4-286-814Industrial Claim Appeals Office.
July 29, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Atencio (ALJ), which determined that the claimant’s average weekly wage was $250, and denied a petition to reopen the issue of average weekly wage. The claimant contends the ALJ erred in failing to increase the wage based on the value of employer-provided room and board. We affirm.
The respondents’ Final Admission of Liability admitted the claimant’s average weekly wage was $250. The claimant objected to the final admission contending that his permanent partial disability was greater than ten percent, and that the Workers’ Compensation Act is unconstitutional. Later, the claimant requested a hearing on the issue of average weekly wage.
At the hearing, the ALJ ruled the issue of average weekly wage was closed by the claimant’s failure to object to the $250 wage admitted in the Final Admission of Liability. However, the ALJ permitted the hearing to go forward on the question of whether the average weekly wage should be reopened based on error or mistake.
Resolving conflicts in the evidence, the ALJ found the claimant was hired to work four days per week at the respondent-employer’s youth center. The agreed upon salary was $900 per month or $207.69 per week.
The claimant was also entitled to receive three meals per day during the days he was working at the youth center. Based on the testimony of the claimant’s supervisor, the ALJ found that it cost the employer $98 per month to feed a resident at the center. Thus, the ALJ calculated the value of the claimant’s meals at $12.92 per week ($98 x 4/7 x 12 months divided by 52 weeks).
The ALJ also found that during work days the claimant was allowed to sleep in a room which “contained little more than a bed and dresser.” Since the claimant was not allowed to remain at the center during off days, he was required to maintain a separate living quarters outside of work. Under these circumstances, the ALJ concluded that the value of the room provided by the employer was “no greater than the difference between the $250 admitted average weekly wage and claimant’s wages with meals included,” or $29.39 per week.
Thus, the ALJ determined that the admitted average weekly wage accounted for the full value of the claimant’s room and board. Since there was no error or mistake, the ALJ denied the petition to reopen the claim.
I.
On review, the claimant argues that no petition to reopen the issue of average weekly wage was necessary because he timely objected to the Final Admission of Liability. However, we need not reach this issue.
As we understand the ALJ’s order, she determined as a matter of fact that the claimant’s average weekly wage is no more than $250. Therefore, regardless of whether the matter is treated as a petition to reopen, or simply a hearing on the issue of average weekly wage, the ALJ has determined that the admitted wage is correct. Therefore, the claimant is not entitled to relief under either of his alternative theories.
II.
The claimant’s principal argument is that the ALJ undervalued the room and board. With respect to the room, the claimant cites his own testimony that he paid $300 per month for a room outside of the youth center. (Tr. p. 18). Thus, he reasons the value of his room at the center was $69.23 per week (apparently $300 per month x 12 months divided by 52 weeks).
The claimant also contends the ALJ undervalued the meals provided by the employer. The claimant argues the ALJ should not have relied on the employer’s cost of providing the meals, but should have determined the claimant’s “replacement cost” of obtaining the meals. The claimant reasons that his replacement cost “would typically be higher than the cost to a restaurant or, in this case the youth home, since food costs are `cheaper by the dozen.'” We are not persuaded by the claimant’s arguments.
Section 8-40-201(19)(b), C.R.S. 1997, provides that wages shall include the “reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case.” In Western Cultural Resource Management, Inc. v. Krull, 782 P.2d 870 (Colo.App. 1989), the court considered the predecessor to § 8-40-201(19)(b), and stated the following:
“Under section 8-47-101(2), a determination of what is the `reasonable value’ of lodging at the time of injury must be made. `Reasonable value’ is a question of fact and will vary depending on the available evidence which is presented and the multitude of circumstances which may affect the possible costs of the benefit to the employer or to the employee.”
Because determination of `reasonable value’ is a question of fact, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant’s argument notwithstanding, the ALJ was not required to place greater value on the room provided by the employer. The claimant did not have access to the room, or exclusive control of it, when he was not on duty. Further, the record supports the ALJ’s finding that the accommodations provided by the employer were quite austere. Thus, there was no necessary relationship between the value of the room at the youth center and the value of the claimant’s private room.
It is true the claimant gave testimony which could have supported a higher value for the room. However, the ALJ was not required to credit the claimant’s testimony, and the mere fact that a different result might have been reached affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
Neither can we say that the ALJ erred in valuing the claimant’s meals. The ALJ’s valuation is fully supported by evidence concerning the employer’s cost in providing the meals to the claimant. The record contains little, if any, evidence concerning what the meals would have cost the claimant had he purchased them elsewhere or made them himself. Consequently, this record supports the ALJ’s reliance on employer cost as the principal yardstick for determining the value of the employer-provided meals. Western Cultural Resource Management v. Krull, supra (employee cost may be considered in determining value).
Insofar as the claimant has made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 10, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (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 July 29, 1998 to the following parties:
David Torres, Route 4 — Box 136B, North Platte, NE 69101
Youth Benefits Unlimited, Inc., P.O. Box 970, Westminster, CO 80030-0970
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
By: _________________________