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Ernie Baylog, Inc. v. Indust. Claim Appeals Office, 923 P.2d 361 (Colo. App. 1996)

Court of Appeals of Colorado

Mr. Simon has practice workers compensation cases for over 25 years. He has built his wealth of knowledge about workers compensation through a multitude of cases. Though each case is unique in its facts and circumstances, each tend to demonstrate one particular idea about Mr. Simon, he is willing to adapt whichever legal strategy is most likely to produce the best result for the client. This was especially true when Ms. Sally Olney hired Mr. Simon. 

Ms. Olney was injured in her capacity as a truck driver for Ernie Baylog, Inc (Baylog). Baylog chose to pay its drivers an eight cents per mile salary, as well as a four cent per mile per for expenses incurred while driving, like meals, showers, and hotels. Pursuant to instructions from the Internal Revenue Service, the Baylog only deducted taxes from the salary amount and treated the expense payments as reimbursements which were not taxed.

At an administrative hearing, Mr. Simon argued that both the salary and expense accounts should be incorporated into Ms. Olney lost benefits calculation to increase her average weekly wage. The administrative law judge (ALJ) excluded the expense amount from the weekly wages, and instead only used the eight cents per mile salary in the calculation.

Mr. Simon appealed the decision to the Industrial Claim Appeals Office (the Panel) to get the average weekly wage that Ms. Olney deserved. On appeal, the Panel agreed with Mr. Simon that the four cent per mile payment more closely resembled compensation, and therefore should be included in Ms. Olney’s average weekly wage.
Unfortunately, Baylog appealed the decision of the Panel to the Court of Appeals of Colorado. At this point, in order to continue to further the interests of Ms. Olney, Mr. Simon joined the Panel in the defense of their decision to include the four cent per mile payment in average weekly wages.

The ultimate outcome of the Court of Appeals was to exclude the four cent per mile reimbursement from average monthly wages. The Court of Appeals found reasoning for its decision in the definition of “per diem” from several sources, legislative intent and committee hearing reports from the per diem provisions of the relevant C.R.S, and testimony about the use of the funds as reimbursement in its decision.

In law, a win in every case is something that no lawyer can promise. However, Mr. Simon, as demonstrated by his involvement and commitment to Ms. Olney, always puts the interests of his clients before all else.