4-314-525 (1998). SHERYL A. BEARMAN.

• Case Date: July 15, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-314-525 (1998). SHERYL A. BEARMAN INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF SHERYL A. BEARMAN, Claimant, v. CITY EXPRESS, Employer, and BUSINESS INSURANCE COMPANY, Insurer, Respondents.W. C. No. 4-314-525FINAL ORDER The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined her average weekly wage. We affirm. The claimant suffered a work-related injury on December 12, 1996. The respondents filed a General Admission of Liability for temporary disability benefits based upon an average weekly wage of $210. The claimant objected and applied for a hearing on the issue of "improper computation" of average weekly wage. Specifically, the claimant asserted that the respondents understated her average weekly wage by considering only the "salary" portion of her earnings, and failing to include "vehicle reimbursement" and "driver commission" payments in her average weekly wage. Based upon the evidence presented at a hearing on May 15, 1997, the ALJ rejected the claimant's contention that the calculation of her average weekly wage should not be based strictly on the "salary" portion of her earnings. The ALJ determined that the amount paid to the claimant for "vehicle reimbursement," based on thirty percent of her commissions, was related to her actual expenses for the use of her personal vehicle, and was not wages. Therefore, the ALJ determined that the claimant's average weekly wage was $210 as admitted by the respondents. On appeal, the claimant does not contest the ALJ's finding that her average weekly wage excludes the vehicle use reimbursement. Rather, the claimant contends that the ALJ exceeded his authority in determining that her average weekly wage without that amount was $210. We disagree. At the commencement of the hearing, the claimant's attorney agreed with the ALJ that the "only issue" for adjudication was "average weekly wage." (Tr. p. 3). The ALJ then asked the claimant's attorney to describe his theory of the case, at which time the attorney submitted a written position statement. (Tr. p. 3). The position statement argues that the respondents erred in failing to include the 30 percent commission amount in the calculation...