W.C. No. 4-487-052Industrial Claim Appeals Office.
November 14, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which determined average weekly wage. We affirm.
The claimant was hired in August 2000. On January 4, 2001, the claimant suffered a work-related injury. Using the claimant’s actual earnings between August 2000 and the date of injury, the respondents admitted for an average weekly wage of $425.32.
The claimant testified he was hired as a full-time employee at the rate of $15 per hour. The claimant admitted there were some work weeks he did not work 40 hours a week. However, the claimant testified he was required to be available for duty 40 hours a week. (Tr. pp. 6, 7).
The ALJ found the claimant was hired as a full-time employee at a rate of $15 per hour for 40 hours per week. The ALJ also determined the employer had sufficient work to employ the claimant 40 hours a week, but due to circumstances beyond the claimant’s control, he did not consistently work 40 hours a week. Further, the ALJ found the claimant was expected to be available for work a minimum of 40 hours per week regardless of whether work was available. In support, the ALJ found the employer’s witness “indicated that if a job was available and the Claimant could not come to that job, it would be considered a no show, three of which would lead to termination. (Finding of Fact 3). Under these circumstances, the ALJ determined the contract of hire was implicitly for 40 hours per week and the claimant’s actually earnings would not fairly reflect the claimant’s diminished earning capacity. Therefore, the ALJ determined the contract of hire governed the average weekly wage and ordered the respondents to pay admitted liability based on an average weekly wage of $600 (40 x $15).
On review, the respondents contend the ALJ abused his discretion in calculating the average weekly wage based on a “hypothetical” contract of hire. We perceive no basis to disturb the ALJ’s order.
A claimant’s wage is generally determined by the money rate at which the services rendered were recompensed under the contract of hire in force at the time of the injury. Section 8-40-201(19)(a), C.R.S. 2002. Section 8-42-102(2)(d) sets forth the method for determining average weekly wage where the claimant’s wage is paid by the hour. Subsection 8-42-102(2)(d) provides that:
“where the claimant is paid by the hour, the weekly wage shall be determined by multiplying the hourly rate by the number of hours in a day during which the employee was working at the time of the injury or would have worked if the injury had not intervened to determine the daily wage,”
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.” Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Therefore, § 8-42-102(3), C.R.S. 2002 affords the ALJ discretionary authority to use an alternative method to calculate the average weekly wage where “manifest injustice” would result by calculating the claimant’s average weekly wage under § 8-42-102(2). Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996); Campbell v. IBM Corp., supra.
Initially, we reject the respondents’ contention the ALJ’s findings of fact are insufficient to permit appellate review. As we read the ALJ’s order, he determined the contract of hire required the claimant to be available 40 hours per week and, therefore, the claimant was precluded from accepting other work when the employer did not have work available. For these reasons the ALJ determined the claimant’s diminished earning capacity was fairly calculated based on the contract of hire, and it was not necessary to apply an alternative method to calculate average weekly wage. Consequently, it is unnecessary to remand the matter for additional findings. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) (ALJ only required to make findings on evidence deemed persuasive and determinative).
Next, we may not interfere with the ALJ’s calculation of average weekly wage unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, supra. 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).
Contrary to the respondents’ contentions, the ALJ did not exercise his discretionary authority under § 8-42-102(3). Instead, the ALJ calculated the average weekly wage under § 8-42-102(2)(d). Therefore, the issue is whether the ALJ’s failure to exercise his discretionary authority under § 8-42-102(3) was an abuse.
The ALJ’s determination that the claimant was required to be available to the employer 40 hours a week is supported by substantial evidence in the claimant’s testimony and the testimony of Kenneth Matejcik (Matejcik), who is the president of the employer’s company. On cross-examination Matejcik was asked whether the claimant’s employment would be terminated if:
“You were to call Mr. Veazy upon a Wednesday and say we have a full day’s work today and need you on the job site and he responded to you, we weren’t working Monday and Tuesday this week, I have another job I have to go to.”
Matejcik, answered he would consider the claimant’s response as a voluntary resignation. (Tr. p. 25). Further, Matejcik testified that employees are expected to be ready for work after they have been idle due to scheduling problems. (Tr. pp. 25-26). Based on this evidence the ALJ reasonably inferred the claimant was required to defer all other employment for at least 40 hours per week and, therefore, the contract of hire was implicitly for 40 hours a week.
Moreover regardless of whether the claimant’s actual earnings would have provided an “easily ascertainable” method of determining average weekly wage, the ALJ’s factual determinations support his conclusion that manifest injustice does not result from calculating the average weekly wage by the regular method set forth in § 8-42-102(2)(d). Consequently, we cannot say the ALJ abused his discretion in failing to exercise his discretionary authority under § 8-42-102(3).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 22, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
Robert M. Socolofsky
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. 2002. 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 ________November 14, 2002 ________to the following parties:
Larry Veazy, 2310 Virginia St., Idaho Springs, CO 80452
Interlocking Pavement Corporation, P. O. Box 153, Idaho Springs, CO 80452
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
John A. Steninger, Esq., 4500 Cherry Creek Drive South, #930, Denver, CO 80246 (For Claimant)
Nancy Hummel, Esq., 999 18th St., #3100, Denver, CO 80202
BY: A. Hurtado