Pizza Hut v. ICAO, No. 00CA1568.

• Decision Date: 18 January 2001
• Docket Number: No. 00CA1568.
• Citation: 18 P.3d 867
• Parties: PIZZA HUT and Zurich American Insurance Company, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the State of COLORADO and John M. Corum, Respondents.
• Court: Colorado Court of Appeals

18 P.3d 867

PIZZA HUT and Zurich American Insurance Company, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the State of COLORADO and John M. Corum, Respondents.

No. 00CA1568.

Colorado Court of Appeals, Div. V.

January 18, 2001.

Hall & Evans, L.L.C., John H. Sandberg, Denver, CO, for Petitioners.

No Appearance for Respondent Industrial Claim Appeals Office.

Erica West, Denver, CO, for Respondent John M. Corum.

Opinion by Judge ROY.

In this workers' compensation proceeding, Pizza Hut and its insurer, Zurich American Insurance Company (collectively employer), seek review of the final order issued by the Industrial Claim Appeals Office (Panel) upholding the calculation of the average weekly wage for John M. Corum (claimant). We affirm.

Claimant, a part-time driver for employer, injured himself in an admitted work-related accident when he fell on icy steps while delivering a pizza. The injury occurred on January 9, 1998. Shortly thereafter, claimant, who had been attending nursing school, obtained full-time employment with a hospital, worked concurrently for both employers for about two weeks, and then voluntarily quit his delivery job with employer.

Claimant reached maximum medical improvement (MMI) on October 21, 1998, and, pursuant to a division-sponsored independent medical examination (IME), received a whole-person medical impairment rating of 21%. Employer filed a final admission of liability for medical impairment benefits based upon claimant's IME rating and calculated pursuant to the part-time weekly wage of $110.03 he earned delivering pizzas. Claimant objected, requesting that benefits be calculated based upon the weekly wage of $458.03 that he was earning at the hospital when he attained MMI.

Following an evidentiary hearing, the Administrative Law Judge (ALJ) found that utilizing the wage paid by employer would "significantly understate the impact of Claimant's injury on his future loss of earning capacity." The ALJ further noted that he had the discretionary authority to calculate claimant's average weekly wage in a fair manner in light of the particular circumstances, and he determined that claimant's medical impairment benefits should be calculated based upon the greater wage he was earning at the time of MMI. The Panel upheld the ALJ's order and employer seeks review here.

Employer contends that the ALJ abused his discretion in failing to award medical impairment benefits based upon claimant's average weekly wage at the time of the injury, rather than his higher weekly wage at the time of MMI. We disagree.

Section 8-42-107(8)(d), C.R.S.2000, sets forth a formula for the calculation of medical impairment benefits, which utilizes the temporary total disability rate contained in § 8-42-105(1), C.R.S.2000, of two-thirds of an employee's average weekly wage. Section 8-42-102, C.R.S.2000, defines the term "average weekly wage," and § 8-42-102(2) states that it shall be calculated based upon the remuneration received by the employee "at the time of the injury." However, § 8-42-102(3), C.R.S.2000, grants the ALJ discretionary authority to calculate the average weekly wage in some other manner if the prescribed methods will not fairly calculate the wage in view of the particular circumstances.

Because the authority to select an alternative method for computing the average weekly wage is discretionary, we may not interfere with the ALJ's order unless it is beyond the bounds of reason, that is, where it is unsupported by the evidence or contrary to law. Coates, Reid & Waldron v. Vigil, 856 P.2d 850 (Colo.1993).

Employer maintains that there were no special circumstances in this case to warrant the selection of the higher weekly wage. In support, employer argues that: claimant was only concurrently employed by the hospital and employer for two weeks; he never experienced a temporary disability from employment due to the injury; he voluntarily left his part-time employment and suffered no immediate impact on his earning capacity; and there was no evidence to support the ALJ's conclusion that...