Tuesday, December 16, 2008

Avalanche Industries Supreme Court decision Dec. 15, 2008

Back on March 22, 2007 I reported on the Avalanche decision at the Court of Appeals level and then noted it was up before the Colorado Supreme Court. The court decided the case on Dec. 15, 2008. Briefly the court decided that a Administrative Law Judge can decide that your wage is whatever is fair and just. It is not necessarily simply what you were making at the time of the accident. In this case the claimant was earning a wage and paid out for permanent partial disability but retained her right to reopen. She did reopen and her higher new wage and health benefit was what was used to calculate her increased permanent disability. She was now totally disabled so benefits were long term at the much higher calculation. The other side said the law restricts average weekly wage calculations to what you were earning at the time of the accident. The court determined that there are two ways for a judge to decide matters. He can decide based on wages at the time of disability (not just accident) or if that is unfair he has the discretion to decide what is fair even if it is a later and higher wage. There were dissenting judges but the case was specific in its analysis so injured workers win big here. Read the case here.
Postscript: I am advised that the facts may not be correct in that the claimant was not seeking permanent total benefits as reported by the court. Further a rehearing is to be sought. I do not see this as affecting the legal determination that an Judge can decide on average weekly wage in his discretion but we shall see what happens. UPDATE: the Court corrected the decision on Jan. 20, 2009 and it can be read by clicking here.

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