Opinion
W.C. No. 4-122-562.
September 1, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ), which approved the respondent's method of calculating the claimant's permanent total disability (PTD) rate inclusive of the Cost of Living Adjustment (COLA) provided by § 8-42-111(4), C.R.S. 2003. We affirm.
On January 16, 1992, the claimant suffered an admitted injury which rendered him permanently and totally disabled effective November 29, 1998. The claimant's average weekly wage (AWW) at the time of the injury was $685.21 which entitled him to PTD benefits based on the maximum rate allowed by law for temporary disability benefits. See § 8-42-111(1), C.R.S. 2003. Section 8-42-105(1), C.R.S. 2003, provides that the maximum temporary disability rate is ninety-one percent of state AWW. As of January 1992, the state AWW was $593.57 and therefore, claimants with an AWW at or above $593.57 were entitled to PTD benefits of $395.71 per week less applicable offsets.
Section 8-42-111(4), the COLA statute, provides as follows:
For injuries occurring on and after July 1, 1991, and before July 1, 1994, the average weekly wage of injured employees used for computing compensation paid for awards pursuant to subsection (1) of this section shall be increased by two percent per year effective July 1 of each year, and such increased compensation shall be payable for the subsequent twelve months. (Emphasis added).
Although not contained in the record, it is apparently undisputed the respondent filed a Final Admission of Liability (FAL) which increased the claimant's PTD rate effective July 1, 1999, to include a 2 percent COLA. The increase was calculated as follows: $395.71 x .02=$7.91. The 2 percent increase was then added to the PTD rate of $395.71 which produced an amended PTD rate of $403.62 before all applicable offsets.
The claimant objected to the respondent's calculations. The claimant took the position that because his AWW at the time of the injury exceeded ninety-one percent of the state AWW, the COLA increase should be added to his actual AWW ($685.21) not the maximum rate of PTD allowed by law ($395.71). Under the claimant's calculation the COLA increase results in a PTD rate effective July 1, 1999 of $465.49 before all applicable offsets.
Relying on our conclusions in Guido v. United Airlines, W.C. No. 4-185-583 (July 11, 2003) the ALJ determined that where as here, the claimant's AWW is greater than the state AWW, the 2 percent COLA increase applies to the maximum PTD rate based on the state AWW. Therefore, the ALJ approved the respondent's FAL concerning the claimant's PTD disability rate effective July 1, 1999.
I.
On review the claimant contends the respondent's COLA calculation violates § 8-42-111(4). Further, the claimant contends Guido v. United Airlines, supra, was wrongly decided. We reject these arguments.
In Guido v. United Airlines, supra, we concluded § 8-42-111 is ambiguous with regard to the method of calculating the annual COLA increase. We then noted that the general purpose of cost of living increases is to maintain the value of benefits in the face of inflationary pressures, not to award some element of compensation beyond that which was previously awarded. See Englebrecht v. Hartford Accident and Indemnity Co., 680 P.2d 231 (Colo.App. 1984). Therefore, we concluded it was illogical to assume that the General Assembly intended to cap PTD benefits for one year, then authorize large increases in the percentage of benefits for those claimants with a high AWW. Instead, we held that a more reasonable interpretation is that the 2 percent increase is intended to apply in the same way to all claimants regardless of the individual claimant's AWW so as to maintain the same relative value of PTD benefits paid to claimants.
Subsequent the entry of the ALJ's order, the court announced Guido v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA1519, August 26, 2004), which affirmed Guido v. United Airlines, supra. The court found the COLA statute is unambiguous, but it agreed with our reasoning concerning the primary purpose of the COLA increase. The court also stated:
"Claimant, however, overlooks the context of the phrase, `the average weekly wage of injured employee' in subsection (4). The full phrase is `the average weekly wage of injured employees used for computing compensation paid for awards pursuant to subsection (1) of this section,' which is `sixty-six and two-thirds percent of the average weekly wages of the injured employee.' This latter phrase incorporates the maximum rate cap of the claimant's earned AWW."
Therefore, the court held that in cases where the earned AWW entitles a claimant to the maximum weekly compensation rate as computed under subsection (1), that computed rate becomes the claimant's AWW for purposes of calculating compensation, as well as calculating the two percent COLA increase under subsection (4).
However, the claimant argues Guido is inconsistent with Salazar v. Industrial Claim Appeals Office, 10 P.3d 666 (Colo.App. 2000). The Salazar court concluded that the benefits cap of § 8-42-111(1) and the COLA provision 8-42-111(4) were inconsistent, and it was impossible to give effect to both. Therefore, because § 8-42-111(4) was enacted later in time, the Salazar court concluded the COLA would apply even if the claimant was entitled to PTD at the statutory maximum.
In Guido the court concluded Salazar "simply held that the COLA statute was meant to apply to all awards of PTD, even those based upon the maximum rate," and therefore, held that Salazar was not inconsistent with the result in Guido.
As was the case in Guido, the issue here involves calculation of the COLA in a case where the claimant is entitled to receive the statutory maximum. Thus, this case does not involve the "irreconcilable conflict" present in Salazar. Rather, as shown above, it is possible to give effect to the COLA, while calculating the COLA in a manner which is consistent with regard to both high and low wage earners.
We are bound by published decisions of the court. C.A.R. 35(f). Therefore, the ALJ did not err in approving the respondent's method for calculating the COLA increase based on Guido v. United Airlines, supra.
II.
The claimant also contends the respondent is not entitled to recover overpaid benefits by withdrawing or revoking its prior admissions and argues the ALJ's resolution of the respondent's entitlement to recover overpayments without review of the claimant's written position statement was a denial of due process. We conclude the claimant's arguments are premature.
Section 8-43-301(2), C.R.S. 2003, provides that a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty," may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). An order may be partially final and partially interlocutory. See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986).
The ALJ recognized the claimant prepared an "initial position statement" on the overpayment issue which was "filed" but was not available to the ALJ. However, the ALJ expressly reserved the overpayment issue for future determination. Consequently, the ALJ's order is not currently subject to review on the overpayment issue.
IT IS THEREFORE ORDERED that the claimant's petition to review the ALJ's order dated May 3, 2004, concerning the issue of overpaid benefits is dismissed without prejudice. In all other respects the order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________ David Cain
__________________________ Kathy E. Dean
Everett Nance, Colorado Springs, CO, Lori Stillmunks, Colorado Springs, CO, Stephanie J. Stevenson, Esq., Colorado Springs, CO, for Claimant.
Joseph C. Irwin, Esq., Colorado Springs, CO, for Respondent.