Opinion
W.C. No. 4-714-470.
August 25, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated March 19, 2008, which determined that a claimant who was a minor at the time of the accident but who was twenty-one at the time of maximum medical improvement (MMI) was not entitled to the maximum temporary total disability (TTD) rate for the purposes of determining permanent partial disability benefits (PPD). We reverse and order that the PPD be paid based on the maximum TTD rate at the date the claimant reached MMI.
The pertinent facts are not in dispute. At the time of the injury, the claimant was a minor of twenty years of age. At the time, the claimant was placed at MMI he was twenty-one years of age and no longer considered a minor. It appears undisputed by the parties that a "minor," for the purposes of this case, is a person under the age of twenty-one. See § 2-4-401(6), C.R.S. 2007; Casa Bonita Restaurant v. Industrial Commission, 677 P.2d 344 (Colo.App. 1983); Mills v. Guido's 800 P.2d 1370 (Colo.App. 1990). The claimant's admitted TTD rate was $223.68. The maximum TTD rate in effect at the time the claimant reached MMI was greater than the admitted TTD rate. The ALJ used the admitted TTD rate of $223.68 to calculate the claimant's permanency award. The use of the admitted TTD rate resulted in a smaller permanency award than if the maximum TTD rate had been used.
We note initially that we do not agree with the respondents that the argument that the claimant was entitled to the maximum TTD rate in calculating permanent partial disability (PPD) was not raised before the ALJ. In our view, the transcript of the hearing reveals that the claimant did raise it during the hearing. Tr. 9. In fact, the ALJ in his oral findings found that because the claimant was a minor that he would be entitled to the maximum TTD rate for use in the PPD formula. Tr. at 16.
Our resolution of this issue depends upon the interpretation of § 8-42-102(4) C.R.S. 2007. That section provides that:
Where an employee is a minor and the disability is temporary, the average weekly wage of such minor shall be determined by the division as in cases of disability of adults. Where the disability of such minor is permanent or if benefits under articles 40 to 47 of this title accrue because of the death of such minor, compensation to said minor or death benefits to said minor's dependents shall be paid at the maximum rate of compensation payable under said articles at the time of the determination of such permanency or of such death.
(Emphasis supplied.)
On appeal the claimant argues that the ALJ erred in construing § 8-42-102(4), to provide that compensation for permanent medical impairment is paid to a minor at the admitted TTD rate for purposes of the formula in § 8-42-107(8) C.R.S 2007 if the minor reaches majority before being placed at MMI. We agree with the claimant's interpretation of the statute and are therefore persuaded that the ALJ erred.
The question presented here is whether § 8-42-102(4) provides that a claimant who is a minor at the time of his injury is paid the maximum rate of permanent partial disability benefits only if he continues to be a minor at the time of MMI. The claimant urges the contrary interpretation that his right to receive permanent partial disability benefits at the maximum rate accrues because he was a minor at the time of injury and is not affected by his age at the time of MMI.
In interpreting this provision we apply the ordinary rules of statutory construction. The purpose of statutory construction is to effect the legislative intent. Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings, and phrases should be read in context and construed according to the rules of grammar and common usage. Section 2-4-101, C.R.S. 2006; Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Moreover, statutory language should not be construed in a manner which produces an absurd result. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001).
In our view the plain language of the statute favors the claimant's proposed interpretation. The subsection applies to those situations "[w]here an employee is a minor," which we interpret to mean a minor at the time of the injury. This interpretation is consistent with the overall purpose of § 8-42-102, which governs calculation of an injured worker's average weekly wage and which in turn is generally fixed at the time of injury. See § 8-42-102(2), C.R.S. 2007. The subsection then addresses the situations respectively, when "such minor" is temporarily disabled and is permanently disabled. It provides that in the latter case compensation to "said minor" "shall be paid at the maximum rate of compensation payable . . . at the time of the determination of such permanency. . . ." In our view, the last phrase, referring to the time of the determination of the permanent disability, governs the particular "maximum rate" of compensation that is included in the formula for calculating permanent disability benefits. That is, the phrase directs the parties to apply the maximum rate that happens to be in effect at the time of MMI. Contrary to the respondents' argument, it does not dictate that a minor who has reached the age of majority by the time of MMI is then paid at his "actual" wage rate rather than at the maximum rate. Rather, under the statute the claimant's minority status is fixed at the time of his injury and § 8-42-102(4) then governs the amount of the "maximum rate" at which permanent disability is calculated. As noted, that maximum rate is the one in effect at the time the claimant reaches MMI. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995) (the phrase, "at the time of the determination of such permanency," contained in what is now § 8-42-102(4), refers to the date on which permanency is determinable, which is when an employee reaches MMI).
This interpretation of the statute is consistent with the statute's purpose. In De Jiacomo v. Industrial Claim Appeals Office, 817 P.2d 552, 554 (Colo.App. 1991) the court of appeals noted that the purpose of the statute compensating minors is to eliminate the disparity of benefits between adult and minor workers by providing that minors' benefits be computed at the maximum rate of compensation payable under the Workers' Compensation Act at the time permanency is determined. The court of appeals recognized in De Jiacomo that it would be inequitable to award benefits to a minor based upon wage earnings at the time of injury because young workers frequently work part-time and at wages substantially lower than adult workers. See Golden Animal Hospital v. Horton, supra. Here, in our view, the use of the claimant's actual temporary total disability rate would not be consistent with the purpose of the minors' statute to eliminate the disparity of benefits between adult and minor workers.
The ALJ's reliance on Arkansas Valley Seeds, Inc. v. Industrial Claim Appeals Office, 972 P.2d 695 (Colo.App. 1998) and Hussion v. Industrial claim Appeals Office, 991 P.2d 346(Colo.App. 1999) for applying the lower admitted TTD rate is misplaced. In Arkansas Valley Seeds, Inc. the court concluded that the computation of permanent medical impairment benefits for a minor is based upon the maximum temporary total disability rate, instead of the claimant's actual temporary total disability rate. In Hussion the court of appeals determined that a minor claimant who had not reached MMI was not entitled to the maximum compensation rate for temporary total disability, even though the parties had stipulated that the injury had produced permanent impairment that would entitle the claimant to PPD benefits. We do not read Arkansas Valley Seeds or Hussion as support for the proposition that a claimant's status as a minor is determined at the date the claimant reached MMI. Therefore, in our opinion, the ALJ incorrectly found that the appropriate weekly rate to be factored in to the whole person permanent partial disability formula was the admitted TTD rate of $223.68.
IT IS THEREFORE ORDERED that the ALJ's order issued March 19, 2008, is reversed and the respondents are ordered to pay PPD based on the maximum TTD rate at the date the claimant reached MMI.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
PAUL FERNANDEZ, DENVER, CO, (Claimant).
SAFEWAY, INC., Attn: MR. KURT LAWRENCE, DENVER, CO, (Employer).
THE LAW OFFICE OF O'TOOLE SBARBARO, PC, Attn: NEIL D O'TOOLE, ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: KAREN LINDEMAN, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
THOMAS, POLLART MILLER, LLC, Attn: STACY J TARLER, ESQ, GREENWOOD VILLAGE, CO, (Other Party).