4-342-812 (1998). DAWN L. BURWELL.

• Case Date: September 22, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-342-812 (1998). DAWN L. BURWELL INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF DAWN L. BURWELL, Claimant, v. RENE TEGTMEYER, Employer, and NON-INSURED, Insurer, Respondent.W. C. No. 4-342-812FINAL ORDER The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ), insofar as the ALJ awarded medical benefits and determined average weekly wage. We modify the award of medical benefits, and as modified, affirm. The ALJ found the claimant suffered compensable injuries on May 5, 1997, while employed as a care giver for the respondent's wife. Dr. Gingery treated the claimant for complaints of pain in her jaw, neck, shoulders, upper back, head and both knees. Dr. Gingery referred the claimant to Paul Sarnstrom (Sarnstrom) for massage therapy and referred the claimant to Dr. Schoo for an evaluation of her knee injury. Dr. Gingery later referred the claimant to Dr. Huene for a second opinion concerning the knee injury. However, the respondent denied liability for Dr. Huene's evaluation on grounds that a second opinion was not reasonable and necessary. The ALJ found that the treatment prescribed by Dr. Gingery is reasonable and necessary to cure and relieve the effects of the industrial injury. Therefore, the ALJ awarded medical benefits including massage therapy, treatment for depression and an evaluation by Dr. Huene. In so doing, the ALJ rejected the respondent's argument that he is not liable for Sarnstrom's therapy until Sarnstrom complies with the billing requirements of the Rules of Procedure, Part XVI, 7 Code Colo. Reg. 1101-3 at p. 70. Expressly relying on Riley Family Trust v. Hood, 874 P.2d 503 (Colo. App. 1994), the ALJ determined that Rule XVI is void insofar as it restricts the claimant's ability to obtain massage therapy to treat the industrial injury. Therefore, the ALJ concluded that the respondent is liable for the massage therapy regardless of Sarnstrom's compliance with Rule XVI(K). The ALJ also determined average weekly wage, and awarded temporary disability benefits. I. The respondent first contends the ALJ miscalculated the claimant's average weekly wage. We disagree. Section 8-42-102(2)(d), C.R.S. 1998, provides that where the claimant is paid by the hour, the weekly wage is determined by multiplying the hourly rate by the number of hours per day the claimant worked each week. However, § 8-42-102(3), C.R.S. 1998, provides that: "Where the foregoing methods of computing the average weekly wage of the employee . . . or for any other reason, will not fairly compute the average weekly wage, the division, in each particular case, may compute the average weekly wage of said 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." (Emphasis added). The legal standard on review of an alleged abused of discretion is whether the ALJ's determination "exceeds the bounds of reason." Coates, Reid and Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Insofar as the ALJ's determination is...