In re Claim of Ganser, 060421 COWC, 5-128-084-002

Docket NºW.C. 5-128-084-002
Case DateJune 04, 2021
CourtColorado
IN THE MATTER OF THE CLAIM OF: ROBERT GANSER, Claimant,
v.
BLUE MOUNTAIN ENERGY INC, Employer,
and
ROCKWOOD CASUALTY INSURANCE COMPANY, Insurer, Respondents.
W.C. No. 5-128-084-002
Colorado Workers Compensation
Industrial Claim Appeals Office
June 4, 2021
KILLIAN DAVIS RICHTER & MAYLE PC, Attn: CHRISTOPHER H RICHTER ESQ, (For Claimant) RITSEMA LAW, Attn: KRISTEN A CARUSO ESQ, (For Respondents)          REMAND ORDER          The claimant seeks review of an order of Administrative Law Judge Sidanycz (ALJ) dated January 28, 2021, that denied the claimant’s request to include certain monetary payments from the employer in the claimant’s average weekly wage (AWW) calculation We set aside the ALJ’s order and remand for further findings and entry of a new order.          This matter went to hearing on the issue of the claimant’s request to increase his AWW. After hearing, the ALJ entered factual findings that for purposes of review can be summarized as follows. The claimant worked 20 years for this employer at the Deserado Mine. The claimant earned a different hourly wage depending on what shift he worked and was eligible for overtime. Every five years the union negotiated and ratified different hourly rates          The claimant sustained an admitted work injury on January 17, 2020. The respondents started paying temporary disability benefits based on an admitted AWW of $1 341.64, representing an annual wage of $69,765.28.          The pay records submitted by the claimant for 2019 show annual earnings of $82, 541.45, resulting in an AWW of $1,587.33. In addition to his hourly salary for 2019, the pay records show that the claimant was also paid:
. “Annual Incentive” - $6,939.59. This amount fluctuates each year depending on market conditions, mine production, the quality of the coal produced and MSHA or safety violations.
. “Bonus” - $2,049.84. This amount included three separate payments, the largest being $1,350.00 for a Christmas bonus The employer witness testified that employees receive a Christmas bonus each year between $1200 and $1500 per year.
. “Incentive” - $1,817.02 - paid as an “extra bonus”
. “Annual Clothing Bonus” - $1,000.00. A $650.00 clothing bonus is paid each year. The employer paid $1,000.00 in 2019 pursuant to a union contract.
. “Safety” - $600.00. For each month that there are no safety violations, the employees are entered into a drawing to win between $100 and $500.
         The claimant testified that the clothing allowance of $650.00 and the Christmas bonus are paid every year. The ALJ found that the claimant does not dispute that the employer does not pay the other bonuses and incentives every year.          The ALJ calculated that the claimant’s AWW for this claim should be $1,393.94. The ALJ arrived at that amount as follows:          The claimant’s gross earnings for 2019 were $82,541.45. The ALJ excluded from that total, $6,939.59 in Annual Incentive; $2049.84, in Bonus; $1,817.02 in Incentive; and $600.00 in Safety for a total of $71,135.00. The ALJ added back $1,350.00 for the Christmas bonus for a new total...

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