Summary
In Kenney, we observed that Schelly v. Industrial Claim Appeals Office, supra, involved a post-MMI change in the claimant's permanent total disability benefits based on a change in the claimant's cost of procuring health insurance.
Summary of this case from In re Gutierrez, W.C. NoOpinion
W.C. No. 4-276-317
October 9, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ). The claimant contends the ALJ erroneously denied her request for additional temporary partial disability benefits and erred in refusing to increase her average weekly wage. We modify the order, and as modified, affirm.
The claimant suffered a work-related injury to her wrists on September 15, 1995. At the time of the injury the claimant was earning $9 per hour and worked 40 hours per week. The employer also provided group health insurance coverage. The respondents admitted liability for temporary total disability benefits based upon an average weekly wage of $360.
In November 1996, the employer made a written offer of part-time, modified employment at the rate of $9.92 per hour, with "full time hours as soon as [the claimant] desired them." The claimant returned to part-time employment and the respondents admitted liability for temporary partial disability benefits at the rate of $140.80 per week from November 22, 1996 to January 30, 1997. This calculation was based on the admitted average weekly wage.
Dr. Confers placed the claimant at maximum medical improvement (MMI) on January 30, 1997. The claimant subsequently underwent a Division-sponsored independent medical examination (IME), which determined the claimant to be at MMI on September 2, 1997, with 21 percent whole person impairment. Although, not part of the record, it is undisputed the respondents' filed a Final Admission of Liability for the payment of permanent partial disability benefits based on 21 percent whole person impairment.
The claimant continued part-time work with the employer until October 10, 1997, when she voluntarily resigned and moved to Texas. The respondents then discontinued paying the claimant's group health insurance premium.
Relying on Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), the claimant requested an order increasing her average weekly wage to reflect the November 1996 raise. She also requested that the replacement cost of the employer's group health insurance be included in the average weekly wage. Further, the claimant sought an order awarding temporary partial disability benefits from November 22, 1996, through September 1, 1997, based upon the increased average weekly wage.
From conflicting evidence, the ALJ found that throughout the time the claimant was released to modified employment, the employer had full-time employment available which was within the claimant's restrictions and paid $9.92 per hour. Further, the ALJ determined that the claimant declined the full-time work for personal reasons unrelated to the industrial injury. Under these circumstances, the ALL determined that the claimant is not entitled to additional temporary disability benefits. The ALJ also concluded that manifest injustice would not result if the claimant's average weekly wage were not increased, because the claimant voluntarily elected not to work full-time, and an average weekly wage based on part-time work at $9.92 per hour is less than full-time work at $9 per hour.
Moreover, the ALJ determined that there is no causal connection between the industrial injury and the loss of the claimant's group health insurance. Therefore, exercising what he concluded was his "discretion," the ALJ refused to include the replacement cost of the group health insurance in the claimant's average weekly wage.
I.
The claimant contends she was medically restricted from performing her regular employment and was not at MMI between January 30, 1997, and September 2, 1997. Therefore, the claimant contends the ALJ erred in refusing to award temporary partial disability benefits for this period. We perceive no error.
To receive temporary partial disability benefits, the claimant must prove that the industrial injury has temporarily "disabled" her from performing her regular employment, and that the industrial disability contributed "to some degree" to the claimant's actual loss of wages. Section 8-42-106, C.R.S. 1998; P.M. Molding, Inc. v. Stanberg, 898 P.2d 542, 548 (Colo. 1995). Whether the claimant has sustained her burden of proof is a question of fact for resolution by the ALL. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Therefore, we must uphold the ALL's determination if supported by substantial evidence in the record and the ALL's plausible inferences from the evidence.
Here, there was a direct conflict between the claimant and the employer's witness concerning the availability of full-time work within the claimant's medical restrictions. The ALJ resolved the conflict in favor of the respondents, and determined that full-time work was available, which the claimant rejected for personal reasons.
Because the ALJ's determination is supported by substantial, albeit conflicting evidence in the record it must be upheld. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Furthermore, the ALJ's determination that the claimant's temporary partial wage loss after January 30, 1997, was not causally related to the industrial injury supports the order denying additional temporary disability benefits.
II.
Next, the claimant contends the ALJ erred in failing to increase her average weekly wage to include the 92 cent raise she received in November 1996. We disagree.
Section 8-42-102(2)(d), C.R.S. 1998, provides that where the claimant is paid by the hour, the claimant's average weekly wage shall be determined by multiplying the hourly rate by the number of hours per day the claimant was working at the time of the injury. However, § 8-42-102(3), C.R.S. 1998, provides that, if "for any other reason," § 8-42-102(2)(d) will not "fairly" determine the claimant's average weekly wage, the ALJ may compute the average weekly wage "by such other method" as will fairly determine the claimant's wage loss and diminished earning capacity. The ALJ's discretionary authority includes the power to increase the claimant's average weekly wage for periods of disability which occur subsequent to the initial period of disability. Campbell v. IBM Corp., supra.
Because the ALJ's authority is discretionary, we may not interfere with the ALJ's calculation of the average weekly wage unless an abuse is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). An abuse is shown where the order is not in accordance with applicable law, or not supported by substantial evidence in the record. Coates, Reid Waldron v. Vigil, supra.
Contrary to the claimant's contention, this case is factually distinguishable from the circumstances, in Campbell. In Campbell, the claimant's earnings increased subsequent to the industrial injury, and she sustained subsequent periods of temporary disability. Under these circumstances, the court held that § 8-42-102(3) authorized the ALJ to calculate the claimant's average weekly wage for the subsequent periods of temporary disability based on the claimant's increased earnings.
Here, the claimant was medically restricted from performing her regular employment and was not at MMI between November 1996 and September 2, 1997. Furthermore, the claimant does not dispute that she was capable of working full-time. However, unlike Campbell, the ALJ determined that full-time, modified work which paid $9.92 per hour was available to the claimant. The ALJ also determined that the claimant declined to work full-time for personal reasons, which were unrelated to the industrial injury. Therefore, the ALJ found that the claimant's temporary partial wage loss and "diminished earning capacity" was not the result of the industrial injury. In other words, the ALJ found that even though the respondents admitted liability for temporary partial disability benefits, the claimant did not experience any subsequent period of temporary disability after she returned to work. Under these circumstances, we cannot say the ALL abused his discretion in refusing to increase the claimant's average weekly wage to include the 92 cent raise.
III.
Nevertheless, we agree with the claimant that the ALJ erred in refusing to include the replacement cost of the employer's group health insurance in the claimant's average weekly wage after October 10, 1997, and therefore, we modify the ALJ's order accordingly.
Section 8-40-201(19)(a), C.R.S. 1998, states that the term wages shall include the employee's replacement cost of the employer's group health insurance. Contrary to the ALJ's determination, § 8-40-201(19)(a), does not afford the ALJ "discretion" to exclude the employee's cost of continuing group health insurance. See Schelly v. Industrial Claim Appeals Office, 961 P.2d 547 (Colo.App. 1997). The statute only allows the cost of group health insurance to be excluded from the claimant's average weekly wage for "so long as the employer continues to make such payment." The Schelly court held that the purpose of the statute was to insure that the disabled claimant has "access to funds" for the purchase of similar or lesser health insurance.
Further, the fact that the claimant reached MMI prior to the employment separation does not afford the ALJ grounds to exclude the replacement cost of the group health insurance in the claimant's average weekly wage after October 10, 1997. In fact, in Schelly, the court included the health insurance cost in the calculation of the claimant's permanent total disability benefits.
Under the applicable law permanent partial disability benefits for whole person impairment are calculated at the claimant's temporary total disability rate, which in turn, is calculated from the claimant's average weekly wage. Section 8-42-107(8)(d), C.R.S. 1998; Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996). It follows that, for purposes of calculating the amount of her medical impairment award, the claimant is entitled to have her average weekly wage include all fringe benefits enumerated in § 8-40-201(19).
Here, it is undisputed that the employer continued to pay the claimant's group health insurance premium until October 10, 1997. Consequently, the claimant is entitled to have the conversion cost of the employer's group health insurance included in her average weekly wage for purposes of calculating the temporary total disability rate for medical impairment benefits due and payable after November 1, 1997.
The ALJ found that as of November 1, 1997, the COBRA replacement cost of the health insurance was $445.36. Therefore, effective November 1, 1997, the claimant's average weekly is $805.36.
Moreover, the fact that the claimant voluntarily resigned from the employment does not compel a different result. See Blair v. King Soopers, Inc., W.C. No. 4-163-507 (January 14, 1998); cf. Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996) (whether claimant received temporary total disability benefits is immaterial to calculation of medical impairment benefits). Nothing in the statutory scheme authorizes the ALJ to consider the claimant's willingness to accept modified employment, as a factor in determining whether to include the replacement cost of health insurance in the average weekly wage. In fact, whether or not the claimant was "at fault" for the loss of the employment, as that term is used in P.D.M. Molding, Inc v. Stanberg, 898 P.2d 542 (Colo. 1995), is not a relevant factor in the calculation of the claimant's average weekly wage. See Reynolds v. James H. Miller, W.C. No. 4-331-168 (January 16, 1998).
IT IS THEREFORE ORDERED that the ALL's order dated February 27, 1998, is modified to provide that the claimant's average weekly wage is $805.36, effective November 1, 1997 and all medical impairment disability benefits due and payable after October 31, 1997, shall be based on this average weekly wage. In all other respects the ALL's order 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 is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 09, 1998 to the following parties:
Jennifer Kenney, 400 Oak Forest Drive, Buda, TX 78610
B.I., Inc., 5400 Lookout Rd., Boulder, CO 80301-3377
Vigilant Insurance Co., Chubb/Pacific Indemnity, P.O. Box 6520, Englewood, CO 80155-6520
Michael P. Dominick, Esq., 250 Arapahoe Ave., #301, Boulder, CO 80302 (For the Claimant)
Mark H. Dumm, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For the Respondents)
BY: _______________________