Avalanche Industries, Inc. v. Industrial Claim Appeals Office

INC., INDUSTRIES, Great AVALANCHE Company Colorado Insurance

States c/o Association, Guaranty Insurance Petitioners, Guaranty Fund,

Western APPEALS OF-

INDUSTRIAL CLAIM of Colorado of the State

FICE Clark, Respondents.

Gladys Louise

No. 06CA0716. Appeals, Court of

Colorado

Div. IV. 22, 2007.

March Aug. Granted

Certiorari person permanent impairment medical

whole rating. 2001, employer a final

In December filed (FAL) liability admitting admission of re- percent per- sponsibility for claimant's twelve impairment spine manent of her lumbar and $415.68, her which was based on salary at the time she left her Deutsch, McElroy, Mulvaney Carpenter, & employment employer. with Claimant did Foster, LLP, Kanan, L. Adam Thomas C. FAL, claim not contest and her was Colorado, Denver, for Petitioners. closed. General, Suthers, Attorney Mark John W. 2003, January petition In claimant filed General, McMullen, Attorney N. Assistant reopen upon worsening claim to her Denver, Colorado, for Industrial Respondent Following evidentiary of her condition. Claim Office. hearing, found that claimant's condi- the ALJ Heuser, LLP, Heu- and Gordon J. Heuser April Sep- and tion had worsened between Colorado, ser, Respon- Springs, Colorado granted claim- tember 2001. He therefore Gladys Louise Clark. dent petition reopen, determining she ant's to proved that she had suffered increase OpinionbyJudgeHAWTHORNE. that related to her industrial symptoms tempo- claimant The ALJ awarded compensation proceeding, In this workers' (TTD) rary at insurers, total benefits Industries, Inc., its Avalanche period Feb- admitted rate of $277.09 Company States Insurance and West- Great 21, ruary Employer 3 to 2008. February Guaranty (collectively employer), ern Fund findings upheld appealed, but the ALJ's were seek review of a final order of the Industrial by and later another divi- (Panel) both the Panel affirming the Appeals Office Indus., (ALJ) court. Avalanche Inc. v. sion of this judge order of the administrative law (AWW) Appeals Office, 2004 WL Indus. Claim weekly wage average that 04CA0N636, 28, (Colo.App. Oct. (claimant) Gladys Louise Clark should be No. 35(f)). 2004)(not published pursuant to C.A.R. higher earnings recalculated to reflect her subsequent employer to include from a April claimant was taken off work group health insurance. We the cost of her treating physician. authorized On her affirm. 4, 2005, by her most May she was advised eligible that to con- employer recent she was injury an industrial Claimant suffered group health care benefits under thereafter, tinue its Shortly in- July 2000. she was was also informed her COBRA. She group by employer that her health formed biweekly cost for the insurance would initial coverage would terminate but that she could $129.19, biweekly would but cost receive health and dental insurance $857.51, week, per increase to Budget $178.76 Omnibus under Consolidated available leave (COBRA), after she had exhausted her Reconciliation Act of 1985 Act Family and Medical Leave 800bb-1, (2006), seq. § et at a cost of U.S.C. (2006). (FMLA), seq. et 29 U.S.C. declined the per week. Claimant $78.90 she re- available COBRA benefits because work, off At the time claimant was taken benefits from group ceived health insurance from her most recent employer. subsequent was $625. In March claimant commenced em- 14, 2005, applica- claimant filed On June ployment employer. with her most recent set, endorsing hearing and notice to tion for 3, 2001, hearing A was held placed at the sole issue of AWW. April claimant was On Howev- September 2005. improvement. Following on the issue on maximum medical er, hearing, presented no evidence was division-sponsored independent medical ex- Rather, called. amination, percent and no witnesses were claimant received a twelve enough parties stipulated incorporate to the relevant facts. was broad a claimant's employers. party presented argument subsequent Each the hear- ing position statements and submitted

briefs to ALJ. L. Employer argued that claimant was not Employer argues that first was denied entitled to raise the issue of AWW because rights equal protection process its and due the issue had been closed 2001 when claim- Constitution, guaranteed by the Colorado employer's FAL ant did not contest and it II, Specifically, employer art. con- reopened by had not been the ALJ after the right procedural process tends its due worsening of claimant's condition in 2008. was violated the ALJ's failure to make Employer argued that claimant was not also order, adequate findings in and that his its higher entitled to the AWW based on a sala- right equal protection to was violated be- years ry earned five after had left em- she applied cause the AWW statutes were differ- ployer's employ, and that her AWW should ently similarly to than to other situated include the cost of health not insurance bene- employers that have not been to fits re- under COBRA offered her most compensate a claimant for AWW based on employer sought cent because she had not subsequent employer. earned previously. such benefits disagree arguments. We with both disagreed employer

The ALJ with A. awarded claimant an increase AWW based weekly wage employed by on her while her party's right procedural pro A to due employer, including most recent the cost of if party provided cess is met is with employer's group her most recent health in- opportunity notice and an to be heard. Pub. coverage. surance Claimant was thus Inc., Motorway, Utils. Comm'n v. Colo. 165 awarded TTD benefits based on an AWW of 10, (1968). 1, 44, Colo. 437 P.2d 48 The 11, period April July $689.60 18 to procedural process essence of due is funda 2005, 11, 2005, July after when $808.76 City County mental fairness. & Denver v. longer eligible no she would for leave (Colo.1982). Eggert, 647P.2d employ- under FMLA from her most recent here, However, employer alleging is not er. proper hearing. that it was denied notice or Panel, Employer appealed to the which procedural process solely Its due claim rests affirmed the ALJ's determination. The Pan- on its contention that the ALJ's order was that, contrary employer's el concluded to adequate findings. brief and did not make contention, granting the ALJ's 2008 order petition reopened signifi claimant's claimant's entire It is axiomatic that where award, just issue, pertaining rights not issues to her medi- cant are at the decisionmaker cal benefits. The Panel also concluded that must state reasons for his or her deter not Corp., ALJ had abused his discretion in mination. Mau v. E.P.H. basing salary claimant's on the she (Colo.1981). AWW the Due employer, earned from her most recent de- Clause of the Process Colorado Constitution spite posi- guarantee the fact that claimant had left her party setting does not an order employer years tion with every finding five before her out on which the order AWW, case, claim Employer increase because based. cites to no and we none, discretionary authority imposing obligation ALJ had the un- know of to ex 842-1028), C.R.S.2006, der pound thoroughly to increase on the reasons and find equity Fi- so demanded. ings underlying a decision. Cf. Shafer nally, upheld Seating, the Panel also the ALJ's inclu- Commercial Inc. v. Indus. Claim Office, sion of the cost of Appeals (Colo.App. claimant's most recent 2003)(@the employer's group finding plan, crystalline health that ALJ is not held to phrase "employer's group findings"). health insur- Because the Due standard 8-40-201(19)(b), C.R.S.2006, plan" imposes ance require- Process Clause no such ment, rely upon Pizza Hut v. impose such a burden Industrial Claim we decline Office, (Colo.App.2001), 18 P.3d 867 on the ALJ. Campbell Corp., v. IBM 867 P.2d 77 (Colo.App.1993). B. equal protection guar Hut, right supra, injured In Pizza a claimant delivering pizzas similarly for his persons while who are situat

antees like treatment under the law. ed will receive higher benefits based awarded Ark, v. The Harris subsequent employ- he earned from a Pigza 1991). ap A unconstitutional "as statute is Employer argues that Hut is dis- er. plied" applied degrees if it with different tinguishable because severity groups persons to different de contemporaneously employers for a both suspect trait. Pace Mem scribed some time, and, thus, the time short between em- Axelson, than ployers was much less Pizza Hut bership 938 P.2d 504 Warehouse (Colo.1997). years persuaded person alleging equal pro five here. We are A showing Hut, violation has the burden of tection significant. this distinction is Pizza here, upon higher arbitrarily subjects the AWW was based classification similarly persons dispa classes of situated claimant from a earned subse- rate treatment. Indus. Claim quent employer. Of Romero, fice Moreover, employer's that contention Employer contends that it is unlaw passage imposition of of time renders fully by required singled being out to com higher, subsequent wages upon inequitable, it pensate higher claimant at a rate than her by Campbell Corp., supra. is v. IBM vitiated However, employer. case, when she left AWW In that an initial oc- examples perti employer cites to no of the years deteriorating curred ten before her being applied working. nent AWW statutes to other condition caused her to cease Her degree a employers with different severi employer argued that her AWW should be ty. employer that it Nor does contend based on the she earned at the time of differently similarly being injury, higher treated from other her initial rather than the employers belongs a salary situated because it to through she had earned in- group suspect that is described some promotions during the interven- creases trait. ing years. A of this court deter- division unjust "manifestly that to mined it would be Employer argues that because neither in 1986 and base claimant's benefits any published claimant nor the Panel cites to in substantially earnings lower 1989 on her similarly employer case in which a situated 1979," that should and determined her AWW pay has also been to an increased higher salary earned at be based subsequent employer's AWW based a deteriorating the time her condition caused wage, examples no such exist. stop working. Campbell v. IBM to employer presenting bears the burden of evi Corp., supra, 867 P.2d treatment; disparate dence of is not the opposing party of the to come for burden Thus, employer has not met its burden of similarly per examples ward with treated equal protec- demonstrating right that its to Pepper sons. See v. Indus. Claim tion under the law has been violated. Office, (Colo.App.2005), 1140 City Pepper, sub nom. Florence v. aff'd IL (Colo.2006). 145P.3d 654 that the Panel argue Employer that other next contends Claimant and the Panel have, fact, affirming in decision to employers been treated in the erred ALJ's higher by being required claimant an based on the same manner as award subsequent em- higher a an than the she earned from her pay to claimant petitioned claimant had not to ployer claimant the time of the initial because earned agree. they reopen the do not support argument, of their issue AWW. We disagreed, TTD. The Panel may petition reopen benefits and A claimant changes finding petition reopen a condition or onee an award if his or her years any time within six af worsens. "At reopened, not granted, an entire award is an just specific the director or ad issues. ter the date of judge may, after notice to ministrative law agree with the Panel's reason We parties, reopen award on all review ing. express language of the statute fraud, overpayment, ground of provides "may that an ... review and ALJ error, mistake, change a a in condi 8-48-808(1). reopen any award." Section 8-43-303(1), tion...." C.R.S.2006 Section a language This is distinct from later subsec added). "order, An is an (emphasis award expressly addresses tion of the statute admission, resulting agree whether reopening of "medical benefits." Section ment, hearing, or a contested which address 8-43-303(2)(b), C.R.S.2006. Because we grants a es benefits and which or denies give statutory lan must full effect to the an award becomes final benefit.... After guage Assembly chosen the General . no further be awarded un possible and must assume that no whenever reopen appropriate less there is an order to superfluous, word a statute is we conclude proceedings." Burke v. Indus. Claim difference in terms between Appeals Office, (Colo.App. reopening subsections of the statute is not 1994). Gullette, Spahmer inadvertent. See reopening To warrant of an award plain P.3d Under the condition," ground "change on the of a statute, language reopening of the change phys claimant must demonstrate 8-43-808(1) reopens an "award" and not condition, merely a ical or mental and not just specific issues raised a claimant change in economiccondition. Lucero v. Cli petition reopen. Co., Molybdenum max properly The ALJ therefore determined 1987). that claimant's entire award had been re- party has met its bur Whether opened that claimant was entitled to proof regarding change in den of condition seek an increase in her AWW.

warranting reopening ques of an award is a fact, of tion Wilson v. Indus. Claim IIL Office, (Colo.App.2003), 81 P.3d 1118 Employer next contends that the Panel solely and "is for the trier of fact to deter affirming erred in of bene- ALJ's award Moving Storage

mine." Metro & Co. v. Gus fits based on claimant's earned from AWW sert, 411, 414 (Colo.App.1995). 914 P.2d employer her most recent because the AWW reviewing uphold factu court must the ALJ's only upon must be calculated based claim- supported al if determinations the decision is injury. Again, ant's by substantial evidence in the record. disagree. we Co., Transp. Christie v. Coors (Colo.App.1995),aff'd, Compensation benefits are calculated upon injured employee's based AWW. 8-42-102(1), Section C.R.S.2006. The term Here, re award was "wages" Compen- defined is Workers' opened by the in under 8-48- ALJ (the Act) money sation Act as "the rate at 303(1) change physi based on a in claimant's which the services rendered are recom- reopened cal condition. The award remained pensed under the contract of hire in force at application when claimant submitted her for injury." the time of Section 8-40- hearing on and notice to set the issue of 201(19)(a),C.R.S8.2006. in 2005. AWW granted ALJs are broad Employer argues reopen that the order to encompass determining in cir did AWW because was not discretion "whether petition particular require raised in [an claimant her cumstances of case only employ order of an alternative method of ALJ] addressed the issues medical Moreover, compensation upon disagree employer's based we with computing Coates, Reid & contention the factual differences be- [AWW]." Vigil, 856 P.2d tween claimant's situation and the situation Waldron v. Pizza Hut v. Industrial Claim 1993). Indeed, provides Act that "in Office,supra, inapplica- render that decision case, particular compute [the ALJ] each Hut, ble. Both here and Pizza the claim- of in such other [AWW] said calculation will, ant's AWW was based on method manner and such other subsequent earned from a upon opinion of based the facts [the ALJ] which the claimant worked after the initial presented, fairly determine such injury. Although claimant in Pizza Hut 8-42-102(8), Section C.R.S.2006. [AWW]." concurrently positions held his for a short objective wage calculation The entire principle permitting wages period, to be ap- to arrive at a fair [under Act] earnings calculated based on from a subse- proximation of the claimant's loss quent employer, upon wages and not earned earning capacity. Al- and diminished injury, applies the time here. See Pizza though generally determined [AWW] Appeals Office, supra, Hut v. Indus. Claim employee's wage at the time of from the 869; Campbell 18 P.3d at see also v. IBM general reason this meth- Corp., supra, (upholding 867 P.2d at 82 computation a fair od will not render calculation of based a claimant's AWW wages, long has the administrative tribunal higher earnings at the time her condition discretionary authority been with vested working, worsened and she ceased which was determining use an alternative method in years injury). ten after her initial wage. fair say We therefore cannot that the Panel Campbell Corp., supra, v. IBM 867 P.2d at erred that the ALJ abused his discretion (citation omitted). awarding claimant benefits employer. from her most recent Wage calculations are reviewed To abuse of discretion standard. IV. aside, wage calculation must be set the ALJ's be shown to exceed the bounds of reason. Finally, employer contends that the Panel Vigil, supra, Reid & Waldron v. affirming including erred in the ALJ's order Educ., (citing Rosenberg at 856 v. Bd. claimant's cost of COBRA benefits (Colo.1985)). 1098-99 re persuaded. calculation. We are not solving wage whether calculation exceeds reason, "may reviewing the bounds of courts A. specifically an award consider whether Employer initially argues that claim Coates, supported applicable law." actually purchased ant must have COBRA Vigil, supra, v. P.2d at Reid & Waldron that cost to included in her insurance for 856. contains no AWW and record evidence purchased that claimant insurance COBRA Here, did not his ALJ abuse any employer. persuaded. are from We not determining in that claimant's discretion wages expressly upon her The Act's definition of AWW should be calculated based initially employee's continuing of wages nearly years five after she includes "the cost injury. wage employer's group plan health insurance sustained her While the ALJ's continuation, and, substantially upon termination of the calculation increased claimant's AWW, it reflected an increase in that cost of conversion to similar plan." 8-40- claimant would have continued to receive or lesser insurance Section 201(19)(b). "Continuation," hand, injury on the one not for the industrial she sustained view, employee's "right In to the to continue working employer. while for our refers wage approx existing coverage upon a fair termination or the ALJ's calculation was period eigh for a of wage Camp qualifying of loss. See other reasons imation claimant's rate"; group "conver Corp., supra, P.2d at 82. teen months at bell v. IBM significantly than refers to an em which cost was less when hand, sion," on the other ability policy obtain a from the ployee's "to she was taken off work in 2005. following expiration employer's insurer statutory The Panel determined that coverage." Midboe v. Indus. the continued "employer" enough is broad to encom- term Office, Appeals Claim pass subsequent employers. light In of the part

App.2003), overruled in Indus. Roebuck, agree definition in we Sears Ray, Appeals v. Claim Office interpretation "employer" the Panel's overly broad. of In Employer did not have benefit Ray, Appeals supra, v. dustrial Claim agree Office we do not the ALJ's in its briefs this case. when submitted above, outcome need be set aside. As we note

Ray, held that "the actual court granted broad discretion in caleu- ALJ is not purchase of health insurance is AWW, lating a claimant's and that discretion in benefits to be order the cost such showing will be disturbed absent of a included in the calculation claimant's the calculation exceeds the bounds of reason Indus. Claim [AWW]." Office supported by applicable and is not law. Ray, supra, 145 P.3d at 662. The court's Vigil, supra, Reid & Waldron v. reading its of the conclusion is based at If P.2d calculation of 8-40-201(19)(b). plain language of Indus. provide time does not Ray, supra, 145 Office approximation employee's wage a fair of an says (plain language nothing of statute earning capacity, loss and diminished purchase require of health insurance discretionary ALJ is vested with the authori- AWW). cost of insurance to be included ty to use an alternative method to determine correctly We conclude that the ALJ deter- wage. Campbell Corp., supra, a fair v. IBM continuing mined that claimant's cost of 867 P.2d at 82. coverage should be included health insurance above, part For the reasons stated in III despite in her AWW her decision not purchase continuing coverage employer. from perceive we do not the inclusion of claimant's

subsequent cost of COBRAbenefits to be an misapplication abuse of discretion or a of the B. law in this case. Claimant was able to work Employer argues further that even years sustaining for five after her industrial correctly if the ALJ included the cost of time, higher Within that COBRA AWW, coverage claimant's COBRA her premi- rate reflects increase insurance the cost should have been based on such high- ums. To base claimant's on the coverage employer rather than from wage er she earned with her most recent employer. recent most employer, disregard but the increase contention, support To its relies cost, insurance would not result a fair on Sears Roebuck & Co. v. Industrial Claim approximation of claimant's loss and Office, Appeals (Colo.App.2006). earning capacity diminished and would cause "wage" in That case held the definition of the expense her to incur an she would not have Act, permits which the inclusion "the em incurred but for the industrial she ployee's continuing employer's cost of working employer. sustained while for in group plan" health insurance the calcula AWW, employee's "clearly tion of refers Thus, we cannot conclude that the Panel to the at the time of the industrial erred or the ALJ abused his discretion in injury." Sears Roebuck & Co. v. Indus. awarding upon claimant benefits based Appeals Office,supra, 140P.3d at 338. continuing inclusion of the cost of her most holding, employer Based on this contends employer's group recent health insurance continuing that claimant's cost of health in plan. coverage surance must be limited to her cost working employer, at the time she for The is affirmed. ceased order Statutory History II Judge concurs. CASEBOLT requiring injured The statutes that an em- Judge part BERNARD concurs in and ployee's AWW be used as the basis for com- . part. in dissents puting compensation workers' benefits have a 1919, long history. early legisla- As concurring part Judge BERNARD in and employée's ture indicated AWWwas the dissenting part. in computing benefits. basis parts reached in I concur the results with This law stated be con- "shall II, I, majority opinion. I of the "money IV.A strued" as the rate at which the respectfully dissent from the results reached recompensed services rendered are parts III and IV.B. of hire force at the time of the contract computed by accident." The AWW was re- may reopen agree I a claimant move to ferring to the total amount the original change award based earned for six months before the accident 8-43- physical condition. Section by twenty-six. dividing this sum If this 803, C.R.S.2006; Molybde v. Climax Lucero "fairly computation compute" would not Co., 642, In (Colo.1987). num had not AWW because reopening, such a the claimant's award fair, long enough computation to be changed because the claimant has become reason," "any or for other the AWW could be disabled, permanently partially totally or by computed referring to the dai- 8-42-107, subject §§ requirements ly earning "any other method" that would 8-42-107.5, 842-111, C.R.8.2006, or for "fairly compute" AWW. Colo. reasons, other such as the inclusion of the 1919, 210, § 47 Sess. Laws ch. at 716-17. premiums of insurance the award as cost ap Colorado's voters November by required now Industrial Claim proved by measure submitted them Ray, Office Assembly in General which the means for computing expanded to in AWW was my position any it award month, by employees paid clude average weekly wage on claimant's week, day, or the hour. All these subsec (AWW) by referring must be calculated included a to the remunera tions reference receiving the remuneration claimant was tion received at the time of the accident. rather than the remu- language The "shall be con receiving neration claimant was at the time compensation in effect at strued" as the rate reopened. the award was This time factor by the time of the accident was modified apply also to the calculations neces- would phrase, "except provided." as hereinafter sary to determine the amount the insur- allowing The reference to other modes of premiums Ray, supra. ance specified calculation when the ones would not Therefore, I would reverse the order as fairly compute other rea the AWW pertains calculating to the method of claim- unchanged. Laws son was Colo. Sess. premiums. ant's AWW and the insurance 275, § ch. 1 at 1880-88. substantially This structure has remained Scope I. of Review seventy years, past the same for the C.S.A. 826; 81-8-1, C.R.S8.1958; 97, § § ch. validity of an award based C.R.S8.1968; 8-47-101, S1-8-1, CRS. legal drawn the Industrial conclusion major and was not altered revi- Office.(Panel) undisput Claims compensation statutes sion of the workers' subject ed facts is to our review. 1990, 62, ch. 1990. See Colo. Sess. Laws 850, Vigil, Reid & Waldron v. 470, 8-40-201(19), §§ 8-42-102 486-87. This court set aside an order of the Panel if the award of benefits "is is still computation The of benefits 8-43-308, 8-42-102(1), supported applicable law." Section the Section C.R.S. AWW. "wages" "shall be con- 2006. The word still S.2006. C.R. legislative the employee's compensa- supreme The court determined to mean the strued" injury. direction was clear: time of the Section 8-40- tion at the C.R.S$.2006. 201(19)(a), The various modes of Assembly given The General has us a rule employee on whether the caleulation-based interpretation. says It the of where word weekly, daily, hourly- or paid monthly, "wages" used ... it shall be construed to the reflect the remuneration still "money rate at which the services mean receiving time of the "ex- was at the recompensed under the contract of are cept provided in this section." Section 8- as in force the time the accident." hire of 42-102(2), Each of these subsec- C.R.S.2006. Comm'n, Roeder v. Indus. 97 Colo. at further reference to the contains a tions P.2d at 899. receiving employee was at the the In Fund v. Compensation State Insurance injury. time of the accident or 590, 593, Lyttle, 151 Colo. 8-42-102(2)(a)-(d), C.R.98.2006. Section (1963), similarly the court relied on the concerning calculation of The subsection wages at the time of the accident: methods would when the enumerated "earning capacity" [the term statuto- [The fundamentally also render an unfair result is ry predecessor temporary to AWW in the 8-42-102(8), unchanged since 1987. Section partial disability must be related statute] C.R.S.2006, states: money to the rate at which the services are comput- foregoing the methods of Where recompensed under the contract of hire at ing employee, the reason [AWW] of the time of the accident. employment or the of the nature of would ... To hold otherwise result injured employee fact has not many preposterous instances in the situa- length of time to en- sufficient granting larger tion of benefits to an in- fairly earnings computed there- able jured employee temporary partial for dis- or ill or has been self- has been ability than if he could receive he were reason, employed other will not temporarily totally disabled. [AWW], division, fairly compute the A division of this court concluded this con- case, may particular compute each "earning capacity" struction of the term of said such other [AWW] sufficiently govern definitive that it should will, method manner and such other analysis substantially of similar succes- opinion in the of the director based Baca, Sterling statute. sor Colo. Beef fairly presented, the facts determine such (Colo.App.1985)("It is thus employee's [AWW]. legislative clear that it was the intent to use (Emphasis supplied.) [AWW] at the time as the of determining throughout basis for Interpretation Supreme III. Court (emphasis Compensation Act." Workmen's supplied)). Echoing express language of a statuto- basically ry structure that has remained un- supreme court described the benefits has, changed, court at least four certainty in of calculation Bel times, calculating stated that the basis for (Colo.1982): Kezer, lendir v. 648 P.2d 645 in effect at the time of AWW is the the [Workers' order to effectuate Com- injury. At the time of each of these pensation] goals speedy Act's of basic decisions, above, as indicated workers' workers, injured compensation reliable compensation provision included a statutes Assembly has the General enacted for- allowing a different method of calculation injured mula which calculates awards to an statutory unfair for methods would be earning power at worker based on loss of "any other reason." the time The formula allows all Commission, parties Roeder v. Industrial 97 Colo. involved to determine with some (1935), degree certainty compen- interpreta concerned the amount of sation to which the worker is entitled. "wages" purposes

tion of the term calculating only certainty parties aid the temporary awards. Not does this Relying language, on of agreement compen- on this division this reaching prompt issues, court reversed an ALJ's conclusion insur- that for it also aids the state sation awarding purposes permanent the of total in- compensation fund and other ance employee to an who suf setting employer premiums. sur[elrs injuries separate working fered while supra, at 647 Bellendir employer, same the should be based AWW (citation omitted). upon employee's the at lower income the addressing how to calculate the When injury. Vigil time of the second v. Indus. (Colo.App.1992), previously injured employee when a Appeals Office, injury, supreme subsequent suffers a the part part, and rev'd in 'd aff Coates, supra, those Coates, that "in court noted in Vigil, supra. Reid & Waldron v. paid who on instances where an The division concluded the claimant's AWW weekly single disabling incurred a basis has higher upon should have been based sala injury, disability benefits are the claimant's ry the claimant earned at the time the first in effect af [AWW] derived from his or injury. Coates, injury." subject the time Reid Coates, supra, 856 P.2d at Vigil, supra, at 855 & Waidron v. supreme court affirmed the division's conclu (emphasis supplied). 8-42-102(8) predecessor § that sion

granted ALJs "broad discretion" to deter Proper Scope of Coates IV. justified using mine whether cireumstances computing compen "an alternative method of statement, Despite this has clear Coates upon employee's sation benefits based once, read, departure at least as a been when [AWW] these methods were unfair for principle computation that of AWW "any other reason." must be remuneration earned at based supreme court reversed the injury. At least one commen Vigil ruling division's this discretion abandoned, suggested tator has that Coates have should been used to base the claimant's equity, statutory pre- "in the name of two higher at AWW on her income earned seriptions indicating time of her earlier instead of her have based [AWW] should been determined lower income earned the time of her sub- earnings at on her the time of the second so, sequent injury. By doing the supreme Cain, Time, injury." Equity David P. court did not endorse exercise discre- Average Weekly Wage, 23 Colo. Law. tion that would disconnect the calculation of (Aug.1994). 1831-32 from remuneration re- respectfully disagree I with this comment Instead, injury. ceived at the time of the following analysis. Before simply court held: 1, 1991, July predecessor the immediate to unique there are such cireum- Where 8-42-104(1), C.R.8.2006, § current stated: herein, presented stances as those The fact that an has suffered a statutory where the standard methods of previous disability compensa- or received computing a claimant's work a [AWW] preclude compensa- claimant, tion therefor shall gross inequity to the we hold death, 8-42-102(8)] injury tion for a later or for but in predecessor § [the determining compensation solution, in- for the later provides appropriate and fair death, jury average by the and is to be taken into consideration earnings weekly shall be such sum as will instances. ALJ such reasonably represent employee's aver- Vigil, supra, & Reid Waldron age weekly earning capacity at time of arrived at the later and shall be signal departure from the Coates did not according subject to the limitations requirement computation that the of AWW predecessor [the 8-42-102]. statute employ- to the remuneration an must be tied 8-42-104(1) at the time of the Rath- Colo. Laws ch. ee receives Sess. er, simply one case in series at 490. Coates 158 upon the remuneration received puted based methods of caleu-

recognizing that when the 8-42-102(@2)(a)-(d) injury. Dugan at the time of the was not § in lating AWW found injured higher wage. when he received the confining, to look to too ALJs are free are Thus, the ALJ did not have discretion under methods, long those methods are as as other 8-42-102(8) Dugan's § to tie award to the determining a level of com- focused on fair job higher wage he received at a different employee was upon what the pensation based injury. before his capable of earn- earning, previously or was injury. ing, at the time of the Further, indicating phrase when the § found in "for other reason" 8-42- careful in Coates supreme The court was 102(8) provides broad discretion to ALJs to principle and to cite Bellen- to state the basic calculation, employ alternative methods Kezer, supra, opinion enumerating the dir v. supreme supreme court cited one court the link- important public policy reasons for the opinions and three from divisions of decision ing the calculation of AWW with remunera- court; Grimm, this Williams Bros. v. injury. tion received at the time of (1931); Drywall Colo. 297 P. 1003 Prod suggestion principle this There is no Constuble, (Colo.App. ucts v. criticized; rather, rejected it was affirmed. Commission, 1991); Painting v. R.J.S. Industrial affirmation is made even clearer This (Colo.App.1986); 2 P.2d 239 73 supreme in court dis- the manner which the Axton, Western Steak House v. Sizzlin Commission, tinguished Dugan v. Industrial (Colo.App.1984). P.2d 96 Each of these (Colo.App.1984). Dugan was departing specific cases authorized from the carpenter's job. He took a laid off from a in formula included the relevant subsection of injured paying job and was lower welder's 8-42-102(2)(b), § suggested none of them but working days. for two He after as welder the alternative calculation should be divorced upon argued his should be based compensation received at the time of wages carpenter. he received as a injury. principle Dugan The divisionfirst cited the Instead, Grimm, in Williams Bros. v. su- determining AWW is the basis for pra, employee the fifteen injury. paid remuneration at the time of the vacation, injury, weeks before his but was on Then the division concluded the discretion by the court to be inferred "forced" because § predecessor in 8-42- contained winter, of the for the eleven weeks immedi- 102(8) not be used to calculate the should ately preceding period. computa- this The upon previous award based his predecessor tional contained in the method carpenter, it would be because 8-42-102(2)(b) statute welding company unfair to the to award com- by dividing to be determined the total pensation upon higher hourly rate based employee during amount earned the six paid employee. than it injury by twenty-six months before distinguished Dugan Coates court weeks. Because the court conclud- way: this "penalize" ed it would unfair to the em- Dugan] [T}he claimant had not suffered [in vacation, ployee ap- for the forced the court any injury employed higher- while his proved the use of the discretion contained injured paid position, only af- became 8-42-102(8) predecessor statute to working in ter he had commenced the lat- period employee of time increase the employment position; thus there was ter twenty-six worked to the full weeks. Howev- that, single injury, no evidence absent er, computation was still conducted than the he would have earned more employee the total amount the earned later, amount of his at the lower- upon any subsequent before the paying position. wage rate. Vigil, supra, Reid & Waldron benefits, underpayment To avoid unfair P.2d at 856 n. 8. Constuble, Drywall the ALJ Products supra, retroactively applied piecework

This distinction is consistent with the stat- utory mandate that the AWW is to be com- begun shortly had to earn rate the overpay payable To avoid unfair to a disabled before his later be based benefits, Paint ment of the ALJs R.J.S. injury." at the time of the later [AWW]

ing, supra, and Western Sizzlin Steak House Lumber, Valley rate the Platte Inc. v. Axton, Indus. Claim hourly supra, v. used 684, Appeals Office, (Colo.App. earning employee was at the time of the 1994). injury, multiplied but the actual hours week, forty-hour per rather than Further, legislature in 1991 the also cases, pay week. In each of these the rate of temporary partial disability amended the employee derived from what the was was Compensation statute discussed State In- making per per piece hour or at the time of Lyttle, supra. surance Fund v. The General injury, multiplied by but was a different Assembly "earning removed the reference to pieces worked or made to number of hours capacity" determining as the basis for bene- Park reach a fair result. See also Univ. fits, phrase and substituted the "the differ- Brien, Holiday Inn v. 868 P.2d 1164 ence between at the time of the [the AWW] predicated on App.1994)(calculation injury during and the continu- [the AWW] earnings injury put at the time of the temporary partial disability." ance of the employee's temporary partial ceiling on the § Colo. Sess. Laws ch. at 8-42-106 benefits); disability Hendricks Indus. 1306. Office, change legislature This indicates disability (Colo.App.1990) (temporary partial partic- meant what it has said since and case) ("We simple comparison hold that 1987; ularly computed since AWW pre-injury post-injury wages between employee earning what the was earning capacity would distort loss injury, at the time of the not at other injury, attributable to the then the claimant's time. post-injury wage wage must reflect the level injury."). in effect at the time of Campbell and Pizza Hut VI. Coates, therefore, reaffirmed the connec- heavily Campbell Claimant relies on tion between the calculation of and the Corp., (Colo.App.1993), IBM P.2d 77 level of remuneration at the time of the Pizza Hut v. Industrial Claim Of Thus, injury, rather than I abandoned it. fice, (Colo.App.2001). my merely submit court indicated view, misplaced. this reliance is injured In Campbell, employee 8-42-102(2) § establishing be read as job in 1979. She continued to work for earnings a rule that at the years, during ten her condition which wors- injury paramount time of the are deter- stopped ened. work. She then she She 8-42-1028)] mining wage, while [§ periods temporary suffered three total grants authority the ALJ the to alter the disability during ten-year span. this specific statutory calculating methods of when, employee's To determine the reasons, they for various purposes temporary of a total injustice particular do an to a worker. award, the ALJ based the award on the

Cain, supra, 23 Colo. Law. at 1882. wages earned at the time of the 8-42-102(8), Relying § in 1979. on Legislative Emphasis V. reversed, concluding it the division would be 1, 1991, July legislature Effective unjust to base the on her 8-42-104(1) by removing amended the ref- earnings lower 8-42-102, preceding erence to the statute rather than on she earned at the by requiring employee's earnings "at subsequent time of her disabilities. injury" the time of the later be used in conclusion, calculating reaching compensation. A before this the division determined the suf- division of this court determined this amend- disease, occupational rather fered from an designed change prior ment was "the law" Vigil, supra, require reflected in and "to injury. Although than an accidental the divi- Coates, approximately one which was issued agree that this issue is deter- sion "d[id] [AWW]," it also of the claimant's in Pizza Hut cited minative month later. The division disease, noted, occupational "in cases only general proposition but to be the injury' generally held 'time of choosing have discretion when that ALJs disability." exposure or onset of time of last computing the alternative methods for AWW. Corp., supra, 867 P.2d at Campbell v. IBM Campbell and Pizza Hut do not refer to history linkage statutory of the the extensive injured employee in Pizzo Hut was remuneration at the time of the of AWW to delivering subsequently pizzas. He ob- while above, injury. legislature the As indicated job working hospital a at a and tained second linkage passed reendorsed this when concurrently jobs for at both two compensa general revisions to workers' delivery voluntarily quit then weeks. He when it amended tion statutes 1990 and job. the ALJ's order The division affirmed subsequent injury in 1991. law pay em- requiring pizza company ployee benefits based on the AWW of his general principle legislature that the It is income, delivery rather than his in- hospital aware, statute, amending prior is when come. judicial leg construction of the statute. The 8-42-102(8) pro The division concluded approved islature is deemed to have the con this vided the ALJ with discretion to reach degree struction to the the statute remains result, "although the record contains evi unchanged being after amended. See Union supported the calcula dence that could have Corp. v. Indus. Claim Carbide Of upon his tion of claimant's based [AWW] fice, (Colo.App.2005). injury." earnings at the time of the Pizza Here, however, there is extensive statuto- Office,supra, Hut v. Indus. Claim intention, ry history announcing legislative it did not 870. The division stated judicial and substantial construction of those matter, purposes calculating the em for AWW, statutes, clearly contrary to the ployee's was not result argues Campbell claimant is company concurrently employed pizza hospital and when the was are of and Pizzo Hut. These two cases injured. v. See Broadmoor Hotel Indus. they vintage, recent and contradict Appeals Office, P.2d 460 "long-continuing contemporaneous construc- App.1996). court, legislature, supreme tion" appeals. of the court of and divisions See Campbell distinguishable from this case Hoelsken, 142, 147, 425 Schlagel v. 162 Colo. because of the division's conclusion the em- (1967). 39, 42 ployee occupational from an disease. suffered conclusion, the division Based on Campbell Hut and Pizzo do discuss out, injury pointed was the Commission, supra; Roeder v. Industrial disability,. last onset of As the Compensation Lyt- Fund v. State Insurance Campbell last onset of Kezer, tle, supra. supra; and Bellendir v. AWW, 1989, basing part, in whole or in analyze Pizza Hut does not the effect of on her 1989 income would not violate the recognize upon those cases requirement calculating awards based scope limitations Coates's upon wages paid at the time of the language of and authorities cited in that assuming Campbell can cited as Even opinion. proposition that an has support ALJ depart remuneration re- discretion to from is, therefore, my Camp- It conclusion injury calculating ceived at the time of when Pigza unsupported by bell and Hut are stat- AWW, Campbell I respectfully submit or case law. These two cases do not ute incorrectly and Pizza Hut were decided. judicial perspective on a settled represent issue; rather, departure they are a this Campbell The division did not have judicial perspective. that settled benefit of the court's decision VIL Conclusion EVARTS, In re the E. Keith ESTATE OF Kezer, supra, explains why Bellendir a/k/a, Evarts, Keith Deceased. employee's remuner

linking the to the important. Nancy Joyce Hill, ation at the time of the and Olson employers employ Petitioners-Appellants, provides a link Such certainty agree sufficient on ees with awards, pre prompt gives and it insurers a Nugent, Representative, Alice Personal setting premiums insurance dictable basis Appellee, employers. position goals undermines these Claimant's Laurel Ann Evarts and David by introducing significant level of uncer- Evarts, Appellees. R. tainty. predict employ- An can injury may degenerate ee's over time No. 05CA2319. in reopening

result the award. Appeals, Colorado Court of great employers and insurers will have diffi- Div. III. culty setting premiums the calculation of April5, 2007. wage figure on a that did AWW based not exist at Aug. Certiorari Denied promptly incentive to settle elaims will dimin- ish, employers and insurers will be unsure responsibility ultimate financial

about their employees. adversely

Employees also be affected position. If an claimant's

making at the time the claim is lower free,

reopened, then an ALJ would be reasoning,

this to reduce the by calculating

award the AWW based salary.

the lower amount of the recent

Thus, that, respectfully I conclude above, position

reasons set forth stability system of a that has

undercuts the eighty years. If place

been for over this made; sweeping change

sort of is to be legislature, not the

should be made

courts.

Case Details

Case Name: Avalanche Industries, Inc. v. Industrial Claim Appeals Office

Court Name: Colorado Court of Appeals

Date Published: Aug 27, 2007

Citation: 2007 WL 851644

Docket Number: 06CA0716

Court Abbreviation: Colo. Ct. App.