W.C. No. 4-196-646Industrial Claim Appeals Office.
October 3, 1995
FINAL ORDER
The Subsequent Injury Fund (SIF) seeks review of an order of Administrative Law Judge Gandy (ALJ) which determined the claimant’s average weekly wage. We affirm.
The ALJ found that the claimant suffered an industrial knee injury on June 24, 1986 during her employment at King Soopers. The ALJ found that the claimant worked for King Soopers an average of 38 hours per week. The claimant also suffered an admitted back injury on March 28, 1991, during her employment for Elnora Bernhardt, doing business as the Heritage Haus. The ALJ found that the claimant was hired by Ms. Bernhardt to work 20 hours a week and was paid $4.25 per hour. Ms. Bernhardt was subsequently dismissed from the claim pursuant to an order of the United States Bankruptcy Court.
Before the ALJ, the SIF and the claimant (the parties) stipulated that the claimant is permanently and totally disabled as a result of the 1986 and 1991 injuries. The parties also agreed that the SIF is liable for 60 percent of the claimant’s permanent total disability benefits. However, the parties disputed the claimant’s average weekly wage (AWW) for purposes of determining the claimant’s permanent total disability rate.
The claimant argued that the benefits should be based upon the claimant’s AWW at the time of the 1986 injury, which the parties agreed was $247.76. The SIF argued that the benefits should be based upon the claimant’s AWW at the time of the 1991 injury which the SIF asserts was previously determined by the ALJ to be $120. The ALJ agreed with the claimant, and thus, ordered the payment of permanent total disability benefits based upon an AWW of $247.76.
On appeal, the SIF contends that the ALJ’s determination is not supported by substantial evidence in the record, that the ALJ’s findings of fact do not support the order and that the order is not supported by the applicable law. We disagree.
Initially, we reject the SIF’s argument that the ALJ’s findings of fact are insufficient to permit appellate review. The ALJ is not required to expressly cite the statutory basis for his determination. Rather, the pertinent issue is whether the ALJ’s determination is supported by the applicable law. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
Here, the respondents concede that the ALJ’s determination is based upon the exercise of his discretionary authority under former §8-42-102(3), C.R.S. (1990 Cum. Supp.) [formerly § 8-47-101(4), C.R.S. (1986 Repl. Vol. 3B)] which provides that:
“Where the foregoing methods of computing the average weekly wage of the employee, by reason of the nature of the employment or the fact that the injured employee has not worked a sufficient length of time to enable earnings to be fairly computed thereunder or has been ill or has been self-employed or for any other reason, will not fairly compute the average weekly wage, the division, in each particular case, may compute the average weekly wage, of said employee, in each particular case, may compute the average weekly wage of said employee in such other manner and by such other method as will, in the opinion of the director based upon the facts presented, fairly determine such employee’s average weekly wage.”
Furthermore, the ALJ expressly cited Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993), and Campbell v. IBM Corporation, 867 P.2d 77
(Colo.App. 1993), concerning the interpretation of § 8-42-102(3). I Coates, Reid Waldron v. Vigil, supra, the Supreme Court held that where the claimant is permanently and totally disabled as a result of two industrial injuries, and the facts demonstrate that the computation of the claimant’s AWW at the time of the second injury will not fully compensate the claimant for her industrial injuries, the ALJ should exercise his discretionary authority under § 8-42-102(3), and calculate the claimant’s AWW by such other method as will result in a fair approximation of the claimant’s wage loss and diminished earning capacity. Compare Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, 870 P.2d 634 (Colo.App. 1994)(Vigil is not applicable to injuries after July 1, 1991).
Under these circumstances, we have no difficulty ascertaining the basis of the ALJ’s order. Therefore, the order is sufficient to permit appellate review. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986).
Moreover, we reject the SIF’s contention that the ALJ failed to make adequate findings of fact as required by Coates, Reid Waldron v. Vigil, supra, that a “gross inequity” would result to the claimant unless the ALJ exercised his discretionary authority under § 8-42-102(3). The ALJ’s use of the term “gross inequity” is not critical. Furthermore, the ALJ’s findings implicitly reflect his determination that it was necessary to exercise his discretionary authority to prevent a “gross inequity.”
The ALJ found factual similarities between this claim and the circumstances in Vigil. Specifically, the ALJ found that in both cases, the claimant had a significantly smaller wage at the time of her second injury due to the medical restrictions imposed as a result of the first injury, and that most of the disability was due to the first injury, even though the claimant received no permanent partial disability benefits in connection with the first injury. The ALJ also determined that in both cases the claimant worked at the second job a relatively short period of time before being injured. Consequently, the ALJ determined that like the facts in Vigil, a fair approximation of the claimant’s wage loss could not be achieved using the claimant’s lower wage at the time of the 1991 injury.
The SIF argues that Coates, Reid Waldron v. Vigil, supra, is factually distinguishable because it involved two injuries with the same employer which occurred six months apart. However, the Supreme Court did not consider these to be the pertinent factors and thus, we are not persuaded that these factual differences are dispositive. Coates, Reid Waldron v. Vigil, 856 P.2d 853.
Moreover, we have reviewed the record and there is substantial evidence to support the ALJ’s findings of fact. Tr. pp. 9, 10, 12, 16, 17, 29, 31. Therefore, we conclude that the ALJ’s findings of fact are supported by the record, that the findings support the ALJ’s order, and that the order is supported by the applicable law.
The SIF’s remaining arguments have been considered and are without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 30, 1995 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 3, 1995 to the following parties:
Darlis L. Winklepleck, 214 S.W. 42nd Street, Loveland, CO 80537
Heritage Haus, Elnora M. Bernhardt, 208 19th St., S.E. Loveland, CO 80538
Greg S. Russi, Esq., 1900 Grant St., #1030, Denver, CO 80203 (For the Claimant)
Subsequent Injury Fund, (Interagency Mail)
Attorney General’s Office, Attn: James E. Martin, Jr., Esq., 1525 Sherman St., 5th Flr., Denver, CO 80203
(For the SIF)
BY: _______________________