4-176-931 (1998). MAJOR B. ANDERSON (Final Order 1).

• Case Date: December 23, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-176-931 (1998). MAJOR B. ANDERSON (Final Order 1) INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF MAJOR B. ANDERSON, Claimant, v. SCHUBERT RANCHES, INC., Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.W. C. No. 4-176-931FINAL ORDER The respondents seek review of a final order of Administrative Law Judge Wells (ALJ). The respondents contend the ALJ erred in calculating the average weekly wage by failing to deduct depreciation and "maintenance and repair" costs from the claimant's gross receipts in self-employment. We affirm. The claimant was injured on June 23, 1993, while employed by respondent Schubert Ranches, Inc. (Schubert). However, because the injury occurred on the claimant's first day at work the ALJ determined that use of the Schubert earnings does not afford an equitable basis for calculating the claimant's average weekly wage. Instead, exercising his discretion under § 8-42-102(3), C.R.S. 1998, the ALJ concluded that the average weekly wage should be based on the claimant's earnings as a self-employed truck driver from May 1992 through early June 1993. In so doing, the ALJ relied on the claimant's 1992 and 1993 income tax returns to find that the claimant's gross earnings from the trucking business were $24,311 in 1992 and $14,126 in 1993. Significantly, the 1992 Schedule C shows a depreciation deduction of $6,899, and "repairs and maintenance" of $10,575. The 1993 Schedule C reflects depreciation deduction of $4,666, and "repairs and maintenance" of $6,077. The depreciation deduction applied to the claimant's truck, as did the maintenance and repair expenses. However, at the hearing, the claimant produced an exhibit indicating that his "service and repair" expenses for May 1992 through June 1993 were only $2,918. The claimant explained that the difference between the amounts claimed for maintenance and repair on the tax returns and the amount contained on the exhibit represent the costs of "fixing up" and repairing the truck. The claimant also testified that he sold the truck at a profit and had to pay income tax on the increased value. (Tr. pp. 13-14). Under these circumstances, the ALJ declined to reduce the claimant's gross receipts based on depreciation claimed on the tax returns. He also concluded that the gross receipts should...