Opinion
W.C. No. 4-002-781
September 19, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ), insofar as it dismissed the Subsequent Injury Fund (SIF), and ordered the respondent (United Airlines) to pay only ninety-one percent of his permanent total disability benefits. We affirm.
The ALJ's findings may be summarized as follows. The claimant sustained industrial injuries to his left upper extremity in June 1987, April 1988, and September 1990. After each of these injuries the claimant was able to return to his regular employment. However, in a prior order dated October 26, 1992, ALJ Rumler concluded that the 1990 injury resulted in permanent partial disability equal to nine percent as a working unit, and awarded benefits accordingly.
Subsequently, on August 3, 1993, the claimant sustained an industrial back injury. This injury resulted in the imposition of substantial restrictions, and the claimant is precluded from returning to his regular employment.
The parties do not dispute that the claimant is now permanently and totally disabled, and the ALJ concluded that the "last injury" contributing to the total disability was the 1993 back injury. Moreover, the ALJ concluded that the back injury caused ninety-one percent of the total disability, with nine percent preexisting at the time of the back injury.
Under these circumstances, the ALJ concluded that the SIF is not liable for any of the claimant's permanent total disability benefits because the August 3 injury occurred after the July 1, 1993 closure of the SIF. See § 8-46-104, C.R.S. (1996 Cum. Supp.). Moreover, relying on § 8-42-104(2), C.R.S. 1997, the ALJ held that United Airlines is liable for only ninety-one percent of the claimant's permanent total disability benefits.
I.
On review, the claimant contends that the ALJ misinterpreted § 8-46-104. The claimant argues that the SIF remains subject to liability unless all of a claimant's injuries occur on or after July 1, 1993. We disagree.
In Stevens v. The Denver Brick Co., W.C. Nos. 3-986-570, 4-215-667 (November 15, 1996), we rejected arguments similar to those made by the claimant. A copy of that decision is contained in the record, and we adopt the reasoning as if fully set forth. See also, Christie v. Coors Transportation Co., 933 P.2d 1330, 1336 at n. 6 (Colo. 1997) (SIF no longer liable if the last injury which contributed to the disability was sustained after July 1, 1993).
We note that United Airlines has argued in support of the claimant's position, and relies on legislative history involving the committee testimony of a witness. The witness testified that SIF "liability is there probably for another thirty years," and that,"the second injury will go to the second employer and the first injury that was part of making this person a permanently disabled person would be to share among all employers."
In our view, this legislative history does nothing to support the claimant's position. It is undisputed that SIF "liability" will continue into the future for a substantial period of time. This is true because of the substantial number of cases already admitted to the SIF. Moreover, the extent of employer liability after elimination of the SIF has nothing to do with the date on which the General Assembly intended to end SIF liability.
II.
The claimant next contends that the ALJ erred in failing to require United Airlines to pay all of his permanent total disability benefits. In support of this position, the claimant makes two arguments. First, the claimant argues that the August 3 back injury must be the entire cause of his permanent total disability because he performed "regular employment at an undiminished wage" prior to the back injury. Further, the claimant argues that this result is consistent with the General Assembly's adoption of § 8-46-105, C.R.S. 1997 (the premium statute). We disagree.
We have previously held that § 8-42-104(2) mandates apportionment of permanent total disability benefits where a previous industrial injury causes disability which remains at the time of the subsequent or last injury. Section 8-42-104(2) explicitly provides that the only exception to the rule of apportionment is if the "provisions of § 8-46-101 [SIF liability] are applicable." See Stevens v. The Denver Brick Co., supra.
Since our decision in Stevens, the Court of Appeals has issued two decisions upholding apportionment of permanent total disability benefits based on preexisting disabilities. See Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997); Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). These cases hold that § 8-42-104(2) requires apportionment of preexisting non-industrial disabilities in cases of permanent total disability. Moreover, these cases indicate that the so-called "full responsibility rule" has no viability where the provisions of § 8-42-104(2) apply.
In addition, these cases address the definition of a "disability" for purposes of § 8-42-104(2). Relying on the supreme court's decision in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the court of appeals held that "disability" constitutes an "alteration of a person's capacity to meet personal, social, or occupational demands and is assessed non-medically." Moreover, a "disability" is proven if the preexisting condition impacts the claimant's "ability to earn a wage and to perform the same or other employment." Colorado Mental Health Institute v. Austill, 940 P.2d at 1128.
It follows that the claimant is incorrect in arguing that his ability to return to regular employment following the 1987, 1988 and 1990 injuries precluded the ALJ from determining that he had a preexisting "disability" at the time of the 1993 injury. To the contrary, the ALJ found on substantial evidence that the claimant's prior extremity injuries caused substantial restrictions which impacted his capacity to earn wages in other employment. Therefore, the ALJ did not err in applying § 8-42-104(2) in holding United Airlines liable for only ninety-one percent of the claimant's permanent total disability benefits.
The claimant next contends that § 8-46-105(1), creates a defacto full responsibility rule which precludes apportionment based on his preexisting industrial disability. The claimant asserts that this premium statute is a substitute for the SIF and preserves the principle of full compensation. According to the claimant, this result is accomplished by requiring the last employer to pay full permanent total disability benefits, while that portion of the disability which existed before the last injury is "shared" among all employers through an adjustment in compensation premiums. We are not persuaded.
Section 8-46-105(1) currently provides as follows:
"Effective July 1, 1993, in any case in which an employee previously has sustained permanent partial disability and, in a subsequent injury sustains additional permanent partial disability and it is shown that the combined industrial disabilities render the employee permanently and totally disabled, then the premiums of the employer in whose employ the employee sustained such subsequent injuries shall be determined only on the basis of the impairment rating for such subsequent injury and not on the basis of the employee's permanent total disability. If such employer disputes the impairment rating for the subsequent injury, the employer shall request an independent medical examination pursuant to the procedures set forth in § 8-42-107. The finding of the independent medical examiner regarding the impairment rating may be overcome only by clear and convincing evidence. The total cost of the employee's permanent total disability shall not be considered in determining the employer's premiums, but shall be considered by the commissioner of insurance in setting rates."
In assessing the claimant's argument, we apply several rules of statutory construction. First, the overall purpose of statutory construction is to effect the legislative intent. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). The clearest guide to legislative intent is the statutory language itself. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). Where, as here, two provisions of the Act might be interpreted as conflicting, we should attempt to harmonize them so as to avoid a conflict. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). The General Assembly is presumably aware of existing statutes, and we may not assume that it intended to repeal or abrogate a statute without a clear expression of its intent to do so. See Scholz v. Metropolitan Pathologist, P.C., 851 P.2d 901 (Colo. 1993). Further, in considering the claimant's argument it is proper to consider legislative history, the state of the law prior to legislative enactment, and the statutory remedy created to cure the problem. Henderson v. RSI, Inc., 824 P.2d at 94.
The claimant asserts that the premium statute evidences a legislative intent to preserve full compensation without apportionment because it states that the, "total cost of the employee's permanent total disability" shall not be considered in determining the employer's future premiums, but will be considered by the insurance commissioner in setting general insurance rates. The claimant reasons that the "total cost" of permanent total disability represents non-apportioned, full benefits. However, the effect of the SIF is preserved because that portion of the permanent total disability which previously would have been borne by the SIF "is spread out through the general premium setting process."
The central difficulty with the claimant's theory is that it does not explain the General Assembly's failure to repeal that portion of § 8-42-104(2) which mandates apportionment unless SIF liability applies. This failure is particularly troubling since the General Assembly was eliminating SIF liability at the time it enacted the premium statute. Under these circumstances, we decline to infer that § 8-46-105(1) should be construed as an implicit repeal or modification of the express provisions of § 8-42-104(2). See Colorado State Board of Medical Examiners v. Jorgensen, 198 Colo. 275, 599 P.2d 869 (1979) (repeal by implication is not a favored concept).
Moreover, § 8-46-105 does not accomplish the substitute for the SIF which the claimant argues that it does. To the contrary, the employer's post-injury premium is based on the "impairment rating for the subsequent injury." In some cases, the percentage impairment rating will be considerably lower than the percentage of the permanent total "disability" caused by the impairment. Conversely, in some cases the percentage impairment rating will be substantially higher than the percentage of permanent total "disability" caused by the last injury. See Colorado Mental Health Institute v. Austill, supra (distinguishing "impairment" from "disability") . In either case, the "total cost" of the permanent total disability bears no necessary correlation to the impairment caused by the last injury or the premium charged to the employer.
It follows from this reasoning that the apportionment of disability contemplated by § 8-42-104(2) is not inherently inconsistent with the impairment-based premium provisions of § 8-46-105(1). For instance, if the claimant's last injury resulted in a five percent medical impairment, but the injury was ninety percent responsible for the claimant's permanent total "disability," there could be an apportionment of permanent total disability under § 8-42-104(2), and an adjustment of the employer's premium under § 8-46-105(1). Since § 8-42-104(2) and § 8-46-105 can be applied in a harmonious fashion, we decline to view them as inconsistent.
The claimant places great reliance on legislative history indicating that some legislators believed that adoption of § 8-46-105 would create a de facto full responsibility rule, and that the risk of preexisting disability would be shared by the setting of insurance rates generally. In particular, the following legislative history is cited by the claimant:
"Senator Norton: June 30 [inaudible] what happens is: if you close it [SIF] so there is no new people to come in on the 30th of this year, and those [inaudible] that are injured after that will be paid through the premium base that insurance company will be paying, rather than that coming into the subsequent injury fund."
It cannot be denied that some of the legislative history underlying § 8-46-105 reveals a belief on the part of some legislators that a claim for permanent total disability benefits would be subject to full payment without apportionment. However, that legislative history does not discuss § 8-42-104(2), and we decline to construe this silence as an affirmative decision by the entire General Assembly to repeal § 8-42-104(2). In our view, the express provisions of the statute are more persuasive than the legislative history, and we must apply the law as written.
III.
Finally, the claimant contends that the ALJ's interpretation of § 8-42-104(2) is unconstitutional because it denies equal protection of the laws and a remedy for the injury. We have upheld the ALJ's interpretation of the applicable statutes. We are without jurisdiction to determine whether these statutes, as interpreted, are constitutional. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ's order dated March 11, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona HalseyNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed September 19, 1997 to the following parties:
Howard Bowland, 13345 W. 7th Dr., Golden, CO 80401
United Airlines, Inc., DIA, 8900 Pena Blvd., Denver, CO 80249-6363
Subsequent Injury Fund — Interagency Mail
Timothy Quinn, Esq., 3515 S. Tamarac Dr., Ste. 200, Denver, CO 80237-1430 (For the Claimant)
Randy Barkley, Alexis Risk Management Services, Inc., One Park Central Bldg., Ste. 410, 1515 Arapahoe St., Denver, CO 80202-2117
Clyde E. Hook, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400 Denver, CO 80227 (For the Respondents)
Andrew M. Katarikawe, Esq., Attorney General's Office, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
By: _______________________________