W.C. No. 4-835-484.Industrial Claim Appeals Office.
August 4, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated March 1, 2011 that approved the respondents’ admission of liability as reflecting the appropriate average weekly wage (AWW) of $525 per week. We affirm.
The employer is an organization which provides skilled tradesmen for temporary job assignments. The claimant suffered an admitted industrial injury on September 1, 2010. The claimant argued that $840.00 was the proper calculation of AWW. The ALJ concluded that the admission for $525 per week fairly determined the claimant’s AWW.
We note preliminarily that § 8-42-102, C.R.S. sets forth the method for calculating the AWW. Section 8-42-102(2)(d) provides that where the employee is being paid by the hour, the daily 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. The weekly wage is then determined from the daily wage in the manner set forth in § 8-42-102(2)(c). That subsection provides that where the employee is rendering service on a per diem basis, the weekly wage shall be determined by multiplying the daily wage by the number of days and fractions of days in the week during which the employee under a contract of hire was working at the time of the injury or would have worked if the injury had not intervened.
However, the overall purpose of the statutory scheme is to calculate “a fair approximation of the claimant’s wage loss and diminished earning capacity.” Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993). Section 8-42-102(3), C.R.S. affords the ALJ
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discretionary authority to calculate the AWW by another method if he determines that the standard methods will not fairly compute the AWW. We may not interfere with the ALJ’s calculation of the AWW unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). An ALJ only abuses his discretion where the order “exceeds the bounds of reason,” such as where it is unsupported by the record or is contrary to law. Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985).
The claimant contends that his AWW should have been computed by the daily rate under § 8-42-102(2)(d) C.R.S, and then under § 8-42-102(2)(c) C.R.S. to determine the weekly rate for an employee paid on an hourly basis. The claimant contends that he would have worked 40 hours during the week he was injured but for the injury and that he was earning a rate of pay of $21.00 per hour. Therefore, the claimant argues that using § 8-42-102(2)(d) C.R.S in combination with § 8-42-102(2)(c) C.R.S. would have entitled him to an AWW of $840.00.
The claimant further asserts that the ALJ erred in using a discretionary method to approve the AWW admitted by the respondents because the ALJ failed to make any findings that show the AWW would not fairly be computed by applying § 8-42-102(2)(c) and § 8-42-102(2)(d). The claimant asserts that such findings are required before the ALJ can utilize the discretionary provision found in § 8-42-102(3) C.R.S.
We are not persuaded that the ALJ committed reversible error in utilizing an alternative method to determine the claimant’s AWW. Section 8-42-102(3) provides as follows:
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 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.
In Avalanche Industries, Inc. v. Clark 198 P.3d 589 (Colo. 2008); overruled on other grounds in Benchmark/Elite, Inc. v. Simpson 232 P.3d 777 (Colo. 2010), the
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Colorado Supreme Court affirmed an ALJ’s exercise of discretion to calculate a claimant’s AWW. The court held that § 8-42-102(2), as the “default provision,” of the statute requires the AWW to be calculated “upon the monthly, weekly, daily, hourly, or other remuneration” received by the injured worker “at the time of the injury.” However, the Avalanche court further held that the default provision is expressly subordinated or made subject to the discretionary exception found in § 8-42-102(3). Th Avalanche court emphasized an ALJ’s decision on AWW is reviewed for an abuse of discretion, and is reversed only where it exceeds the bounds of reason and was unsupported by applicable law.
Here, the ALJ specifically relied on the discretionary exception found in § 8-42-102(3). In so doing, the ALJ found the employment records and testimony of the employer’s representative to be persuasive and credible. Further, the ALJ made detailed findings of fact including the following. The claimant signed an application for employment with the employer indicating that there was no agreement for employment for any specified period of time. The client companies’ use of temporary employees from the employer is unpredictable. On the specific job involved here, the client company decided after the claimant’s injury to use its own employees rather than temporary employees from the employer. The pay records, which reflected claimant’s employment with the employer in a previous relationship in 2009 and also in 2010 up to the point of the claimant’s injury, showed varied hours which ranged from a low of eight hours and a high of 37.5 hours per week.
The adjuster based the admitted $525 figure on the hours the claimant worked the week before the claimant’s injuries. This admitted figure was higher than any week the claimant had ever worked for the employer, except for one week in 2009 when the claimant worked up to 37.5 hours. If the adjuster had used an average of all of the claimant’s employment with the employer, the AWW would have been significantly lower than the one chosen. The ALJ ultimately concluded that $525 per week was a fair approximation of the claimant’s AWW at the time of the injury.
Considering the ALJ’s findings, we are not persuaded that the ALJ was restricted to using the $21.00 hourly wage multiplied by 40 hours, as urged by the claimant. In our view, the evidence does not compel the conclusion that the claimant would have worked 40 hours per week but for the interference of the injury. To the contrary, the ALJ’s findings make it clear that she was convinced that the claimant had never worked 40 hours in a week for the employer. Insofar as the evidence also supports inferences different than those drawn by the ALJ, this affords no basis for relief See F.R. Orr Construction v. Rinta, 717
P.2d 965 (Colo. App. 1985). Further, even if the claimant would have worked 40 hours in the week he was injured, that does not mean he would
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have continued to work at that frequency. In our view, the ALJ’s determination of the AWW is not only based on substantial evidence, but is well within the discretionary authority afforded by § 8-42-102(3).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 1, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Dona Rhodes
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RICHARD LUNDEEN, 4948 DAKOTA DRIVE, FORT COLLINS, CO, (Claimant).
TRADESMEN INTERNATIONAL, Attn: EMILY SMAYDA KELLY, MACEDONIA, OH, (Employer).
NEW HAMPSHIRE INSURANCE, Attn: EVELYN BONHAM, C/O: GALLAGHER BASSETT SERVICES, ENGLEWOOD, CO, (Insurer).
JOUARD PICKERING, PC, Attn: STEPHEN J. JOUARD, ESQ., FORT COLLINS, CO, (For Claimant).
NATHAN, BREMER, DUMM MYERS, PC, Attn: MARK H. DUMM, ESQ., DENVER, CO, (For Respondents).
TRADESMEN INTERNATIONAL, SOUTH PLATTE RIVER DRIVE, DENVER, CO, (Other Party).
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