4-282-825 (1998). RICK S. LAMUTT.

• Case Date: November 06, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-282-825 (1998). RICK S. LAMUTT INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF RICK S. LAMUTT, Claimant, v. BRINKER INTERNATIONAL PAYROLL, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Insurer, Respondents.W. C. No. 4-282-825FINAL ORDER The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined average weekly wage and denied the claimant's request for the imposition of penalties against the respondents. We affirm. The claimant suffered an admitted work-related injury on July 1, 1995. The respondents admitted an average weekly wage of $209.92. Between July 1 and November 1995, when the claimant became temporarily disabled, the claimant received wage increases which resulted in an average weekly wage of $458.48. The claimant therefore contested the admission and asserted that his pertinent average weekly wage was $458.48, plus the value of food and drinks provided by the employer. The ALJ determined that the claimant's average weekly wage was $458.48. He found the claimant presented no evidence concerning "the value of any food and drink consumed by him as part of his compensation package," and therefore did not increase the average weekly wage based on that assertion. The claimant requested the imposition of penalties under § 8-43-304(1), C.R.S. 1998, based on the respondents' failure to comply with a previous order that was issued on July 29, 1996. That order awarded temporary total disability benefits commencing April 12, 1996. The respondents did not begin paying the temporary disability award until July 1997, and then withheld benefits for the period after August 19, 1996, based upon their erroneous belief that the claimant failed to attend a medical examination with Dr. Jones. The ALJ denied the request for penalties. I. The claimant contends that the ALJ erroneously failed to include the value of food and drinks he consumed at the employer's expense in calculating his average weekly wage. In particular, the claimant contests the ALJ's finding that the claimant presented "no evidence" concerning the value of the food and drink. The claimant contends that the ALJ could have determined the value of the food and drink from his testimony and "common knowledge" about the value of similar food items. We are not persuaded there was any error. It is the claimant's burden to prove his entitlement to benefits. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990). Therefore, insofar as the claimant sought an increase in average weekly wage, he bore the burden to prove the amount of the increase. The claimant's industrial injury occurred while...