In Hargon, the Industrial Claims Appeals Office (the Panel) found no reversible error in the ALJ’s exercise of discretion regarding calculation of the claimant’s average weekly wage (AWW). The Panel affirmed that the ALJ correctly cited the law and reasonably declined to base the claimant’s AWW on speculative future earnings.
The claimant was injured in a motor vehicle accident on February 29, 2024, while working for Milvets Systems Technology. At the time, she also held concurrent employment with Client Services Architect (CSA). The respondents submitted a General Admission of Liability, admitting for an average weekly wage (AWW) of $382.65 and awarding ongoing temporary total disability (TTD) benefits beginning March 16, 2024.
The claimant had worked for both Milvets and CSA since 2019. Her work typically involved participating in military exercises lasting two to three weeks, with 12-hour shifts over seven consecutive days. She testified that she generally completed two exercises per year with each employer. In 2023, she earned $5,496.80 from Milvets and $6,278.22 from CSA. In 2022, she earned $12,475.40 from CSA. Her total gross wages were $17,972.20 in 2022 and $19,952.44 in 2023. Based on her 2023 earnings, the respondents calculated her AWW as $382.65.
The claimant argued that the ALJ erred by not applying the discretionary method under § 8-42-102(3), C.R.S., which allows the ALJ to use alternative wage data when the default method under § 8-42-102(2) does not fairly reflect the claimant’s wage loss.
She asserted that her injury prevented her from completing three Milvets exercises in 2024 estimated her losses at $19,500 and two CSA exercises with estimated losses of $22,650. She also claimed she missed out on election judge work, totaling an additional $2,250 in lost wages.
On appeal, the claimant reiterated that the ALJ abused his discretion by failing to use the discretionary method. The Panel reviewed the applicable law, including Benchmark/Elite, Inc. v. Simpson, 232 P.3d 777 (Colo. 2010), which affirms the ALJ’s authority to compute AWW “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 [AWW].”
The ALJ rejected the claimant’s wage projections as speculative and unsupported by her prior work history, which showed she consistently completed only two exercises per year with Milvets. The ALJ also found claimant's reliance on potential election judge wages too contingent, noting she had already canceled one such opportunity due to a scheduling conflict.
However, the ALJ did exercise discretion by combining the claimant’s concurrent wages from Milvets and CSA in 2023 to calculate the AWW. This approach was deemed reasonable and consistent with precedent, including St. Mary’s Church & Mission v. Industrial Commission, 735 P.2d 902 (Colo. App. 1986).
Ultimately, the Panel found no reversible error in the ALJ’s exercise of discretion. It affirmed that the ALJ correctly cited the law and reasonably declined to base the AWW on speculative future earnings.
Hargon v. Milvets Systems Tech. Inc., W.C. No. 5-267-135-001, (I.C.A.O. May 6, 2025).
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