Opinion
W.C. No. 4-347-491
January 19, 1999
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ). The claimant argues the ALJ erroneously failed to consider earnings from concurrent employment when calculating the average weekly wage. The claimant also argues the ALJ erred in calculating temporary partial disability benefits based on his earnings at the time of the hearing. We affirm.
The ALJ found that on April 9, 1997, the claimant sustained a compensable injury while employed as a janitor by respondent Southway Services Incorporated (Southway). The ALJ found that the claimant earned $203.51 per week from this employment, and also received health insurance benefits valued at $66.52 per week.
At the time of the April 9 injury, the claimant was concurrently employed by Republic Parking Service (Republic). In this job, the claimant used a "poker" to pick up trash, and helped jump start automobiles. (Tr. pp. 23-24).
The claimant remained employed by Republic until May 19, 1997. The claimant then quit his job because he believed he was "working too many hours." The ALJ found that restrictions resulting from the injury never precluded the claimant from performing any of his duties with Republic.
On July 31, 1997, the claimant ceased work for Southway. The ALJ found that the claimant was physically unable to continue the job.
On September 12, 1997, the claimant obtained work within his restrictions at a car wash. Based on the claimant's testimony, the ALJ found that the claimant earns $200 per week in this employment.
Under these circumstances, the ALJ calculated the claimant's average weekly wage based on his earnings with Southway, but declined to include the earnings from Republic. In support, the ALJ found that the claimant was never disabled from performing his duties with Republic, and that the claimant quit work for Republic of his own accord. The ALJ also determined the claimant was entitled to temporary partial disability benefits commencing September 12, 1997. The ALJ calculated the temporary partial disability benefits by subtracting $200 per week from the average weekly wage, and awarded sixty-six and two thirds percent of the difference.
I.
On review, the claimant contends the ALJ erroneously failed to consider the earnings from Republic when calculating the average weekly wage. In support of this contention, the claimant cites St. Mary's Church Mission v. Industrial Commission, 735 P.2d 902 (Colo.App. 1986). We find no error.
Section 8-42-102(3), C.R.S. 1998, gives the ALJ discretion to compute the average weekly wage in any manner which will fairly determine the claimant's wage under the circumstances. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). This discretionary authority permits the ALJ to calculate the average weekly wage based on earnings from concurrent employments which the claimant held at the time of the injury. St. Mary's Church Mission v. Industrial Commission, supra. This is true because, when an injury "impairs a claimant's ability to earn from concurrent employments, it may be `fair' to include all such wages in the computation of the average weekly wage." Jefferson County Public Schools v. Dragoo, 765 P.2d 636, 637 (Colo.App. 1988). However, there is no ipso facto rule requiring the ALJ to include wages from concurrent employments. Id. at 638; Sanchez v. Pueblo Medical Investors, W.C. No. 3-942-960 (December 14, 1998) (respondents have no statutory duty to admit liability for an average weekly wage based on earnings from concurrent employments in order to avoid penalties).
Because the ALJ's decision to include wages from concurrent employments is discretionary, we may not interfere with the order unless an abuse of discretion has been shown. An abuse of discretion does not exist unless the ALJ's order is beyond the bounds of reason, as where it is not supported by the evidence or is contrary to law. Coates, Reid Waldron v. Vigil, supra.
Here, the ALJ did not abuse his discretion by declining to calculate the claimant's average weekly wage based on earnings from Republic. Because the purpose of the average weekly wage is to fairly compensate for loss of earnings, it would be anomalous to require the ALJ to include wages from a concurrent employment when the claimant remains capable of earning wages in the job. In St. Mary's Church Mission v. Industrial Commission, supra, and Jefferson County Public Schools v. Dragoo, supra, the injuries rendered the claimants unable to perform the concurrent employments. In contrast, the claimant in this case has not been disabled from performing the concurrent employment at Republic.
Consequently, there was no abuse of discretion in the ALJ's conclusion that fairness did not require him to calculate the average weekly wage based on the claimant's earnings at Republic. However, we should not be understood as precluding a recalculation of the wage if circumstances change. Cf. Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996).
II.
The claimant next contends that the ALJ erred in awarding temporary partial disability benefits based on the claimant's "earnings at the time of the hearing." The claimant does not deny that the evidence supports the ALJ's finding that he earned $200 per week at the car wash. (Tr. p. 19). Rather, the claimant asserts that his earnings may change in the future causing a change in his entitlement to temporary partial disability benefits. We perceive no error.
The hearing in this matter was held on December 10, 1997. The ALJ merely ordered that the claimant should be paid temporary partial disability benefits "commencing September 12, 1997." The ALJ also reserved all other issues for "future determination." Under these circumstances, we understand the ALJ to have determined that the claimant was entitled to temporary partial disability benefits at the rate of $2.34 per week commencing September 12, 1997, and continuing. However, the ALJ's order does not preclude either party from requesting an additional hearing in the event the claimant's earnings change. Consequently, we see no basis for interfering with the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated January 26, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed January 19, 1999 to the following parties:
Lester E. Scott, 1704 Hampton South, Colorado Springs, CO 80906
Peter Jones, Project Manager, Southway Services, Inc., PO Box 6069, USAFA, CO 80841
Business Insurance Company, PO Box 101630, 2000 South Colorado Blvd., Suite 11500, Denver, CO 80250
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909-4349 (For Claimant)
James R. Clifton, Esq., Harvey D. Flewelling, Esq., 5353 West Dartmouth Avenue, Suite 400, Denver, CO 80227 (For Respondents)
BY: ____________