The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY November 15, 2018
2018COA162
No. 17CA1171 Nanez v. Indus. Claim Appeals Office — Labor and Industry — Workers’ Compensation — Benefits — Medical Aid
In this workers’ compensation case, a division of the court of
appeals considers whether section 8-42-101(1)(a), C.R.S. 2018,
covers the costs of providing conservator or guardian services to a
permanently and totally disabled claimant suffering from a
traumatic brain injury. The court concludes that an employer isn’t
statutorily liable for covering these services where they don’t cure or
relieve a claimant of the effects of his injury.
In this case, the conservator’s and the guardian’s services
weren’t prescribed as medical treatment to cure the claimant’s
traumatic brain injury or relieve him from its medical effects.
Instead, these services were prescribed as a way of helping the claimant deal with the tasks of daily life, such as managing his
money, taking medication, and following physicians’ instructions.
So, the court concludes that these services aren’t covered “medical
treatment” under section 8-42-101(1)(a). COLORADO COURT OF APPEALS 2018COA162
Court of Appeals No. 17CA1171 Industrial Claim Appeals Office of the State of Colorado WC No. 4-922-618
Brian Nanez,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado; Mechanical & Piping, Inc.; and Pinnacol Assurance,
Respondents.
ORDER AFFIRMED
Division IV Opinion by JUDGE HAWTHORNE J. Jones and Vogt*, JJ., concur
Announced November 15, 2018
Kaplan Morrell LLC, Michael H. Kaplan, Greeley, Colorado; Volant Law LLC, J. Bryan Gwinn, Englewood, Colorado, for Petitioner
No Appearance for Respondent Industrial Claim Appeals Office
Harvey D. Flewelling, Denver, Colorado, for Respondents Mechanical & Piping, Inc., and Pinnacol Assurance
Burg Simpson Eldredge Hersh & Jardine, P.C., John M. Connell, Englewood, Colorado, for Amicus Curiae Workers’ Compensation Education Association
Burg Simpson Eldredge Hersh & Jardine, P.C., Nelson Boyle, Englewood, Colorado, for Amicus Curiae Colorado Trial Lawyers Association
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶1 In this workers’ compensation case, claimant, Brian Nanez,
seeks review of a final order of the Industrial Claim Appeals Office
(Panel), which affirmed an order by the administrative law judge
(ALJ) determining that (1) Mechanical & Piping, Inc., and Pinnacol
Assurance (collectively, employer) aren’t liable to pay for medically
prescribed conservator and guardian services under section
8-42-101(1)(a), C.R.S. 2018; and (2) Mr. Nanez’s average weekly
wage (AWW) shouldn’t be increased. We affirm the Panel’s final
order.
¶2 In doing so, we address an issue of first impression as to
section 8-42-101(1)(a)’s language requiring “[e]very employer . . . [to]
furnish such medical . . . treatment . . . as may reasonably be
needed at the time of the injury . . . and thereafter during the
disability to cure and relieve the employee from the effects of the
injury.” Specifically, we address whether this language covers the
costs of providing conservator or guardian services to a
traumatic brain injury. Under the circumstances here, we conclude
that the statutory language doesn’t cover the costs of conservator or
guardian services for Mr. Nanez because the conservator services
1 don’t help care for or remedy his injury and Mr. Nanez didn’t
establish that the guardian services are reasonably needed to cure
and relieve him from the effects of his injury.
I. Facts and Procedural History
¶3 Mr. Nanez worked as a plumber for Mechanical & Piping, Inc.
As a result of a work-related accident, he sustained permanent,
disabling closed head injuries, causing significant cognitive deficits.
Mr. Nanez’s authorized treating physician, Dr. Hugh Macaulay, and
the physician who conducted a division-sponsored independent
medical examination placed Mr. Nanez at maximum medical
improvement (MMI) with a permanent impairment rating of
forty-seven percent of the whole person, with forty percent of that
being attributed to his brain injury. Employer admitted liability for
permanent total disability.
¶4 Dr. Macaulay’s MMI and impairment report noted that Mr.
Nanez’s brain injury prevented him from “maintain[ing] his function
and independence.” He described Mr. Nanez as having “executive
function, but it is impaired”; “fair” short term memory; and
“somewhat unreliable” recent memory. Mr. Nanez requires
2 assistance with everyday tasks such as grocery shopping, banking,
and navigating around town.
¶5 Because of Mr. Nanez’s cognitive impairments, Dr. Macaulay
concluded that Mr. Nanez “will need to have oversight for his
financial and medical management.” And deeming their services to
be “reasonable and necessary,” Dr. Macaulay recommended that
both a conservator and a guardian be appointed to function as Mr.
Nanez’s “peripheral brain.” In a separate proceeding, a district
court appointed both a conservator and a guardian for Mr. Nanez.
¶6 Mr. Nanez asked for a hearing, seeking an order requiring
employer to pay for the conservator’s and guardian’s services under
section 8-42-101(1)(a). He also asked that his AWW be increased to
cover his lost potential earning capacity, reflecting wages he
would’ve earned as a master plumber had he not been injured.
¶7 The ALJ denied both requests. Applying section
8-42-101(1)(a), he was “not persuaded that the [Workers’
Compensation] Act provide[d] [him] with the authority to require
[employer] to pay for a guardian and conservator to manage [Mr.
Nanez’s] workers’ compensation benefits.” And he found that the
services of a conservator and a guardian were “legal in nature,”
3 noting that court cases allowing for housekeeping services are
based on those services having relieved “the symptoms and effects
of the injury and were directly associated with [the] claimant’s
physical needs.”
¶8 As to the conservator’s services specifically, the ALJ found that
“ensuring that [Mr. Nanez] handles his finances does not cure or
relieve [him] from the effects of the industrial injury,” and even with
such services, “[Mr. Nanez’s] physical condition remains the same,
although his financial situation may improve.” And, as to the
guardian’s services, the ALJ found that “[Mr. Nanez’s] medical
records document a long history of medical treatment . . . prior to
[him] having a guardian appointed,” and that “the medical records
do not document that [the issues as to Mr. Nanez’s independent
judgment involving his medical care, including taking medications]
significantly affected [Mr. Nanez’s] ability to receive appropriate
medical treatment.” So the ALJ found that “Mr. Nanez] ha[d] failed
to establish that the duties of a guardian in managing [his]
treatment and ongoing care are reasonable and necessary,” and
that employer “may be able to provide the same services for [Mr.
Nanez] through the use of a nurse case manager.”
4 ¶9 The ALJ also concluded that Mr. Nanez’s request to increase
his AWW was “too speculative.” And he noted that despite Mr.
Nanez’s professed intent prior to the accident to continue working
as a plumber and earn his master plumber certification, it was
“impossible to ascertain what would have happened with [Mr.
Nanez] if not for his workers’ compensation injury.”
¶ 10 The Panel affirmed the ALJ’s rulings. It followed the ALJ’s
reasoning, relying on Bogue v. SDI Corp., 931 P.2d 477 (Colo. App.
1996), Edward Kraemer & Sons, Inc. v. Downey, 852 P.2d 1286
(Colo. App. 1992), and Country Squire Kennels v. Tarshis, 899 P.2d
362 (Colo. App. 1995). The Panel read these cases as reflecting the
court of appeals’ conclusion that section 8-42-101(1)(a) doesn’t
allow expenses for services that merely improve a claimant’s
lifestyle or assist with daily tasks. And, it held that a conservator’s
“functions are primarily financial and are not accurately described
as medical or nursing services. Accordingly, they are not
compensable expenses.”
¶ 11 The Panel also held that a guardian’s services “fail to fall easily
into the category of medical benefits.” And it noted that the statute
governing guardians prohibits an individual from serving as both a
5 guardian and a “direct service provider” to an incapacitated person,
see § 15-14-310(5), C.R.S. 2018, and that such “activities are
largely outside of a reasonable definition of medical care.”
¶ 12 As to Mr. Nanez’s request to increase his AWW, the Panel
found that the ALJ didn’t err in applying the law and didn’t abuse
his discretion in determining that such an increase was speculative.
II. The Conservator’s and Guardian’s Services
¶ 13 On appeal, Mr. Nanez doesn’t clearly say how he thinks the
Panel erred in its final order. Instead, he contends broadly that
employer “should be liable to pay for the fiduciary services of a
court-appointed [g]uardian and [c]onservator that provide relief
from his brain injury” and that “fiduciary services that are required
to compensate for an injured worker’s lost brain functioning are
medical benefits under the statute because such services relieve the
effects of the brain injury.”
¶ 14 Mr. Nanez also contends that employer failed to submit any
rebuttal testimony or evidence at the hearing to contradict his
evidence, and that the ALJ abused his discretion by disregarding
the undisputed evidence that his injuries affect his ability to
perform daily tasks. He asserts that his cognitive deficits render
6 tasks such as banking, taking medication, following physicians’
instructions, and managing his money nearly impossible. He
argues that the conservator and guardian carry out these functions
on his behalf, essentially acting as his “peripheral brain,” and thus
“reliev[e] the effects” of his admitted, work-related injuries.
¶ 15 Finally, Mr. Nanez contends that substantial evidence, without
any contrary evidence, supports a finding that the conservator’s
and guardian’s services are reasonable and necessary.
¶ 16 Employer responds that we needn’t interpret section
8-42-101(1)(a) to determine whether the fees for the conservator’s or
guardian’s services constitute medical treatment that must be
provided under the statute because the ALJ’s factual finding that
those services aren’t reasonable and necessary in this case is
supported by substantial evidence.
¶ 17 We disagree with Mr. Nanez and conclude that substantial
record evidence supports the ALJ’s finding that Mr. Nanez failed to
establish that the conservator’s and guardian’s services are
reasonable and necessary in this case.
7 A. Standard of Review and Law
¶ 18 We review an administrative agency’s conclusions of law de
novo. Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo.
2010). Though we afford considerable weight to an agency’s
reasonable interpretation of its own enabling statute, we aren’t
bound by its legal interpretations. Id. We also defer to the
interpretation of a statute adopted by the officer or agency charged
with its administration as long as that interpretation is consistent
with the statute. Id.
¶ 19 We are bound by and may not set aside the ALJ’s factual
findings if they are supported by substantial evidence in the record.
See § 8-43-308, C.R.S. 2018; Paint Connection Plus v. Indus. Claim
Appeals Office, 240 P.3d 429, 431 (Colo. App. 2010) (“When an
ALJ’s findings of fact are supported by substantial evidence, we are
bound by them.”); Leewaye v. Indus. Claim Appeals Office, 178 P.3d
1254, 1256 (Colo. App. 2007). As the fact finder, the ALJ may
resolve conflicts in the evidence, make credibility determinations,
determine the weight to be accorded to expert testimony, and draw
plausible inferences from the evidence. Kroupa v. Indus. Claim
Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002).
8 ¶ 20 “A claimant in a workers’ compensation claim shall have the
burden of proving entitlement to benefits by a preponderance of the
evidence . . . .” § 8-43-201(1), C.R.S. 2018.
B. Compensable Medical Treatment Under the Statute
¶ 21 Section 8-42-101(1)(a) requires “[e]very employer . . . [to]
furnish such medical, surgical, dental, nursing, and hospital
treatment, medical, hospital, and surgical supplies, crutches, and
apparatus as may reasonably be needed at the time of the
injury . . . and thereafter during the disability to cure and relieve
the employee from the effects of the injury.”
¶ 22 We conclude that the conservator’s and the guardian’s services
aren’t medical treatment as that term is used in section
8-42-101(1)(a). It follows that employer isn’t liable to pay for such
services as compensable medical treatment under the statute.
¶ 23 We also conclude that substantial record evidence supports
the ALJ’s factual findings that (1) the conservator’s services in
handling Mr. Nanez’s finances don’t cure or relieve him of his
injury’s effects, and his “physical condition remains the same,
although his financial situation may improve” with such services;
and (2) Mr. Nanez failed to establish that the guardian’s duties in
9 managing his treatment and ongoing care are reasonable and
necessary.
¶ 24 Under the plain language of section 8-42-101(1)(a), the
claimed expenses must be for medical or nursing treatment or
incidental to obtaining such medical or nursing treatment. Bellone
v. Indus. Claim Appeals Office, 940 P.2d 1116, 1118 (Colo. App.
1997) (citing Country Squire Kennels, 899 P.2d 362). And the
service provided must be reasonably needed to cure and relieve the
injury’s effects and be related to the claimant’s physical needs. Id.
(citing Hillen v. Tool King, 851 P.2d 289 (Colo. App. 1993)). In other
words, to be considered a medical benefit under the statute, the
service must be a medical service that is reasonably necessary for
treating the injury or that provides therapeutic relief from the
injury’s effects. See Bogue, 931 P.2d at 478 (applying the statutory
interpretation in Cheyenne County Nursing Home v. Industrial Claim
Appeals Office, 892 P.2d 443, 445 (Colo. App. 1995), which states
that the statute requires “the apparatus or service have therapeutic
benefit” (emphasis added), to support a claim for wheelchair-
accessible van as medical “apparatus” or benefit).
10 1. Claim for Conservator’s Services
¶ 25 Mr. Nanez’s claim for the conservator’s services is analogous to
the claims made and rejected in Cheyenne and Bogue. Certainly,
we recognize that those cases involved claims for a medical
apparatus under subsection 101(1)(a), but we conclude that the
principles enunciated therein are equally applicable to claims under
the same statutory subsection for services asserted to be “medical
treatment.” After all, the statutory terms “treatment” and
“apparatus” are both modified by the term “medical” and therefore
refer to a treatment or an apparatus used “as may reasonably be
needed . . . to cure and relieve the employee from the effects of the
injury.” § 8-42-101(1)(a); see ABC Disposal Servs. v. Fortier, 809
P.2d 1071, 1072 (Colo. App. 1990) (interpreting section 8-42-101’s
predecessor statute and stating that the term “apparatus” refers to
a medical apparatus used for treatment “to cure and relieve from
the effects of the injury”; therefore, a snowblower wasn’t prescribed
as a medical aid to cure or relieve the claimant of symptoms of his
injury, but instead to provide an easier way to perform a household
chore).
11 ¶ 26 In Cheyenne, another division of this court denied the request
of a quadriplegic, wheelchair-restricted claimant for a stair glider to
allow her access to her basement during dangerous weather. In
doing so, the division relied on Hillen, 851 P.2d 289 (denying lawn
care service not prescribed to cure or relieve symptoms of the
claimant’s injury, but only to relieve claimant from the rigors of
yard work), and held that “the employer’s obligation was limited to
providing services that relieved the symptoms of the injury and
which provided for the claimant’s direct physical needs.” 892 P.2d
at 445. The division ultimately concluded that “the stair glider
provide[d] no therapeutic benefit relative to [the claimant’s]
disabling injury,” nor was it “necessary for access to health or
medical necessities.” Id. at 446.
¶ 27 The Bogue division relied on Cheyenne in concluding that,
under the facts before it, a wheelchair-accessible van wasn’t a
compensable medical “apparatus” or benefit. Bogue, 931 P.2d at
478. The claimant had suffered a work-related accident that
rendered him an incomplete quadriplegic. Following the Cheyenne
division’s lead, the Bogue division held that for a particular
apparatus to be a statutory medical benefit, “it must be a medical
12 apparatus that is reasonably necessary for treatment of the injury
or that provides therapeutic relief from the effects of the injury.” Id.
And based on this reasoning, the division concluded that the
requested van wasn’t a medical aid reasonably necessary for
treating the claimant’s injury because the van wouldn’t help care
for or remedy the claimant’s quadriplegia, nor would it provide
therapeutic medical relief from the injury’s effects or symptoms. Id.
at 479.
¶ 28 We likewise conclude that the conservator’s services provided
by her exercising her powers “granted in . . . § 15-14-425” for Mr.
Nanez’s benefit to assist him with his workers’ compensation claim
and with handling his finances won’t help care for or remedy Mr.
Nanez’s cognitive deficiencies caused by his traumatic brain injury.
As the ALJ found, “ensuring that [Mr. Nanez] properly handles his
finances does not cure or relieve [him] from the effects of the
industrial injury”; in other words, Mr. Nanez’s “physical condition
remains the same, although his financial situation may improve.”
¶ 29 The ALJ’s finding and our conclusion are supported by
substantial record evidence — namely, an opinion letter from Dr.
Macaulay, Dr. Macaulay’s MMI report, and Dr. Macaulay’s
13 testimony at the hearing. First, in the letter, Dr. Macaulay said
that he and Mr. Nanez’s psychiatrist and psychologist agree that
Mr. Nanez doesn’t have the ability to adequately supervise
conventional functions of daily life, and “to that end,” they
recommended “both a guardian and a conservator to provide him
with adequate management in his activities of daily living.” Second,
in his MMI report, Dr. Macaulay said that “Mr. Nanez has
significant need for supervision,” and he needs “someone to oversee
his planning, use of financial resources and protect him from other
individuals and facilitate interactions.” Finally, Dr. Macaulay
testified at the hearing that because of Mr. Nanez’s brain injury, he
requires assistance with everyday tasks such as taking medication,
following physicians’ instructions, navigating around town, grocery
shopping, banking, and managing his money.
¶ 30 But “compensation is not awarded . . . if the only services
being rendered to the claimant are ordinary household services.”
Edward Kraemer & Sons, 852 P.2d at 1288; see also ABC Disposal
Servs., 809 P.2d at 1073 (holding that snowblower wasn’t
prescribed as medical aid to cure or relieve injury’s symptoms, but
to provide easier method of performing a household chore).
14 ¶ 31 Dr. Macaulay didn’t say that the conservator’s services in
managing Mr. Nanez’s finances were necessary for treating Mr.
Nanez’s brain injury or that such services would provide
therapeutic relief from the injury’s effects. Instead, he said that the
conservator’s services would act as a “peripheral brain” in the same
manner that a seeing-eye dog “serves as peripheral eyesight,” and
that Mr. Nanez “needs help in guiding him in what he should be
doing.” Dr. Macaulay also described what he would want the
conservator to do as to Mr. Nanez’s medical treatment and keeping
him safe: “In regard to his medical treatment, I would like any
comments or thoughts . . . [,] but the management of the medical is
going to be mine and the management of the financial is going to be
[hers].” And finally, Dr. Macauley testified that “at this point, we’re
not going to improve [Mr. Nanez’s] function.”
¶ 32 Based on this substantial record evidence, we conclude that
the conservator’s services don’t help care for or remedy Mr. Nanez’s
traumatic brain injury or his resulting cognitive disabilities. Nor do
her services provide Mr. Nanez therapeutic medical relief from his
injury’s effects or symptoms. So we reject Mr. Nanez’s contention
that employer is statutorily liable to pay for the conservator’s
15 services. We also reject his contention that, as to the conservator’s
services, the ALJ abused his discretion by disregarding the
undisputed evidence that his injuries affect his ability to carry out
daily tasks. As indicated above, the ALJ’s finding that although the
conservator’s services assist Mr. Nanez in improving his financial
situation, his physical condition remains the same, is supported by
substantial record evidence. See § 8-43-308.
2. Claim for Guardian’s Services
¶ 33 The ALJ found that Mr. Nanez “failed to establish that the
duties of a guardian in managing [his] treatment and ongoing care
are reasonable and necessary in this case.” Mr. Nanez contends
that substantial evidence, without any contrary evidence, supports
a finding that the guardian’s services are reasonable and necessary.
We disagree that no contrary evidence supported the ALJ’s finding.
¶ 34 Determining whether services are either medically necessary
to treat a claimant’s injuries or incidental to obtaining such
treatment presents a factual question. Bellone, 940 P.2d at 1117.
We must uphold an ALJ’s resolution of a factual question that is
supported by substantial evidence. Id. at 1117-18. “Substantial
evidence is that which is probative, credible, and competent, such
16 that it warrants a reasonable belief in the existence of a particular
fact without regard to contradictory testimony or inference.” City of
Loveland Police Dep’t v. Indus. Claim Appeals Office, 141 P.3d 943,
950 (Colo. App. 2006).
¶ 35 The ALJ acknowledged Mr. Nanez’s argument that the
guardian’s services allow him to schedule and attend medical
appointments. But he found that the same type of service could be
provided by a less restrictive measure. The ALJ based his finding
on extensive medical records documenting Mr. Nanez’s long history
of medical treatment prior to the guardian being appointed. And he
found that although Dr. Macaulay testified to some significant
doubts about Mr. Nanez’s judgment as to his medical care,
including taking medications, Mr. Nanez’s medical records didn’t
document those issues as having significantly affected his ability to
receive appropriate medical treatment. The ALJ also found that
employer may be able to provide the same services as a guardian in
managing Mr. Nanez’s treatment and ongoing care by using a nurse
case manager to schedule his medical appointments and remind
him of upcoming appointments.
17 ¶ 36 As we read these findings, they rest on the premise that a
nurse case manager can provide the services Mr. Nanez needs in
managing his treatment and ongoing care for his work-related
injury. We conclude that these findings are supported by
substantial record evidence. Specifically, the record shows that a
nurse case manager assisted in Mr. Nanez’s care for approximately
seven months. Her twenty-two pages of detailed medical review
notes for that period show that, among other things, she
maintained contact with Mr. Nanez’s medical providers to keep
updated on his progress, facilitated treatment recommendations
and Mr. Nanez’s compliance with those recommendations,
monitored his medications and complaints for possible medical
needs, and on at least one occasion attended a medical
appointment with him. We have found nothing in the record, and
Mr. Nanez hasn’t pointed us to anything, indicating that the type of
services provided by the nurse case manager were insufficient to
manage Mr. Nanez’s medical treatment and ongoing care. And Mr.
Nanez concedes in his opening brief that “some of the [g]uardian’s
duties resemble services that could theoretically be provided by
Pinnacol and/or a [nurse case manager],” and that Pinnacol
18 assigned another nurse case manager to Mr. Nanez’s case after the
hearing. So we conclude that substantial record evidence supports
the ALJ’s finding that a nurse case manager may be able to provide
the same services as a guardian would in managing Mr. Nanez’s
treatment and ongoing care.
¶ 37 Still, Mr. Nanez argues that the guardian complements the
nurse case manager by providing fiduciary services and the “sort of
hand holding” his brain injury requires. But, again, the ALJ found,
based on the record of Mr. Nanez’s long medical history, that these
issues hadn’t affected Mr. Nanez’s receiving appropriate medical
treatment. Again, our review of the record doesn’t show otherwise
and Mr. Nanez hasn’t pointed us to anything in the record showing
otherwise.
¶ 38 We therefore conclude that the ALJ’s factual findings are
supported by substantial evidence, and we affirm the Panel’s
determination that Mr. Nanez failed to establish that the services of
the guardian are reasonable and necessary in this case.
¶ 39 Finally, we note that “[t]he purpose in requiring an employer to
provide medical benefits under the Act is to allow an injured worker
to reach maximum medical improvement and maintain that status.”
19 Bogue, 931 P.2d at 480 (citing Grover v. Indus. Comm’n, 759 P.2d
705 (Colo. 1988)). But, as with the wheelchair-accessible van in
Bogue, the conservator’s and the guardian’s services here weren’t
prescribed as medical treatment to cure Mr. Nanez’s traumatic
brain injury or relieve him from its medical effects. Instead, these
services were prescribed as a way of helping Mr. Nanez deal with
everyday tasks of daily life. “While these are certainly salutary
goals, they are beyond the intent of § 8-42-101(1)(a).” Id. And
whether the services necessary to meet these salutary goals should
be compensable under the statute is an intrinsically legislative
decision that we must avoid making. Town of Telluride v. Lot
Thirty-Four Venture, L.L.C., 3 P.3d 30, 38 (Colo. 2000) (it’s not up to
a court to make or weigh policy).
III. Requested AWW Increase
¶ 40 Mr. Nanez contends that the Panel erred in affirming the ALJ’s
denial of an increase to his AWW. We affirm this portion of the
Panel’s order.
¶ 41 The ALJ found that Mr. Nanez’s request to increase his AWW
based on his intent to earn a master plumber certification “would
require too much speculation as to what Mr. Nanez would have
20 done if not for the work injury.” Mr. Nanez argues that because the
uncontroverted evidence established that he had “career
aspirations,” “plans . . . to continue in commercial plumbing,” and
“expectations” of obtaining his plumbers’ license, his future AWW
wasn’t speculative but instead showed a demonstrated intent to
pursue master plumber certification. Indeed, he argues, the
evidence showed that his income was likely to increase. He argues
that it would be “manifestly unjust” to freeze his wages at the
amount he was earning when he was injured given that he
potentially could have earned much more. So, he reasons, the ALJ
should have acted under his discretionary authority to adopt a
more equitable AWW.
¶ 42 We aren’t persuaded. We agree with the ALJ and the Panel
that “expectations,” “a plan,” and “career aspirations” don’t
constitute sufficient concrete steps toward Mr. Nanez’s goal of
becoming a master plumber to support an increase in AWW.
Because any number of unforeseen barriers could have inhibited
Mr. Nanez’s intent to become a master plumber, we perceive no
abuse of discretion in the ALJ’s finding that Mr. Nanez’s future
earnings were too speculative to warrant increasing his AWW.
21 ¶ 43 Under the Act, an ALJ “may compute the average weekly wage
of [an] 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.”
§ 8-42-102(3), C.R.S. 2018. This provision grants an ALJ wide
discretion to determine a claimant’s AWW. Because the
determination is discretionary, we won’t set it aside absent a
showing that the ALJ abused his discretion. “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.” Pizza Hut v.
Indus. Claim Appeals Office, 18 P.3d 867, 869 (Colo. App. 2001).
[T]he claimant’s average weekly wage is to be calculated “in such other manner and by such other method as will, in the opinion of the [ALJ]” fairly compensate a claimant. The method of calculation to be used in the ultimate determination of the claimant’s award then . . . is to be left in the first instance to the ALJ. Put simply, the ALJ should be allowed to employ the discretion accorded him or her . . . before a court expropriates that discretion by ordering a specific compensation award to the claimant.
22 Coates, Reid & Waldron v. Vigil, 856 P.2d 850, 857-58 (Colo. 1993)
(citation omitted).
¶ 44 The ALJ found that Mr. Nanez’s professed plan to earn his
master plumber certification was simply that — a plan with no
concrete steps taken toward its execution. Distinguishing the facts
before him from those in Pizza Hut, the ALJ noted that unlike Mr.
Nanez, the injured worker in Pizza Hut had completed his degree
and begun a job in his field of choice. See 18 P.3d at 868. Mr.
Nanez, by contrast, hadn’t yet enrolled in classes to become a
master plumber when he was injured. Thus, although Mr. Nanez
testified that he had hoped to become a master plumber and own
his own plumbing business, those goals were merely aspirational at
the time of his accident. We can’t say that the ALJ abused his
discretion in deciding that Mr. Nanez’s potential future wages were
too speculative to warrant increasing his AWW.
¶ 45 Because the ALJ’s decision declining to increase Mr. Nanez’s
AWW is supported by substantial record evidence, the Panel
properly affirmed it. See Coates, Reid & Waldron, 856 P.2d at
857-58; Pizza Hut, 18 P.3d at 869.
23 IV. Conclusion
¶ 46 The Panel’s final order is affirmed.
JUDGE J. JONES and JUDGE VOGT concur.