Opinion
W.C. No. 4-300-974.
August 7, 2003.
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Mattoon (ALJ), which ordered the respondents to pay in accordance with a final admission of liability. The respondents contend their liability is capped based on the amount of benefits the claimant would have received but for his incarceration. We affirm.
The pertinent facts are undisputed. The claimant sustained a compensable injury in June 1996. The claimant was incarcerated from May 2, 1997, through May 12, 2000.
On June 13, 1997, the respondents filed a final admission of liability. The respondents admitted liability for temporary total disability (TTD) from June 25, 1996, through February 6, 1997, the date of maximum medical improvement (MMI). The respondents also admitted liability for permanent partial disability (PPD) benefits. Based on the claimant's incarceration, the admission "suspended" the claimant's right to receive benefits as of June 13, 1997.
When the claimant was released from incarceration in May 2000, he requested a Division-sponsored independent medical examination (DIME). The DIME physician opined the claimant was not at MMI as of April 17, 1998, and the respondents were ordered to commence payment of TTD benefits on May 12, 2002. On September 3, 2002, the respondents filed a second final admission of liability. The second final admission admits liability for TTD benefits of $31,458.19, and PPD benefits in the amount of $28, 541.81, based on a 24 percent whole person impairment rating. However, the admission also states the claimant reached the $60,000 benefit cap contained in § 8-42-107.5, C.R.S. 2002, based on the TTD and PPD benefits which the claimant would have received if he not been incarcerated. Thus, the admission claims the respondents are entitled to a credit against the cap based on these benefits and are relieved of the obligation to pay $9,057.59 otherwise owing under the admission.
The claimant filed a motion for summary judgment arguing the respondents are not entitled to claim a credit against the cap based on benefits which he would have received but for the incarceration. The respondents replied that under § 8-42-113(1), C.R.S. 2002, they are entitled to calculate the claimant's benefits as if he had received them during his incarceration. Therefore, the respondents reasoned, the claimant exceeded the benefits cap. However, the ALJ rejected the respondents' position and ruled the benefits which the claimant would have been paid but for the claimant's incarceration "simply were not received by the claimant." Thus, the ALJ ruled the respondents are not entitled to "reduce their obligation to pay permanent partial disability benefits up to the statutory cap of $60,000."
I.
On review, the respondents contend a consistent and harmonious construction of § 8-42-113(1) and § 8-42-107.5 required the ALJ to treat the claimant as if he had received TTD and PPD benefits during incarceration. Thus, they argue the claimant reached the cap and the ALJ erred in ordering the payment of additional benefits. We disagree.
Section 8-42-113(1) provides as follows:
Notwithstanding any other provision of law to the contrary, any individual who is otherwise entitled to benefits under articles 40 to 47 of this title, shall neither receive nor be entitled to such benefits for any week following conviction during which such individual is confined in jail, prison, or any department of corrections facility.
The pertinent provision of § 8-42-107.5 provides as follows:
No claimant whose impairment rating is twenty-five percent or less may receive more than sixty-thousand dollars from combined temporary disability payments and permanent partial disability payments.
The purpose of statutory interpretation is to effect the legislative intent. Because the General Assembly is presumed to have intended what it plainly said, words and phrases in a statute should be given their plain and ordinary meanings. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Humane Society of the Pikes Peal Region, 26 P.3d 546 (Colo.App. 2001). In the absence of a special statutory definition, a word should be given its dictionary definition. White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000).
Both § 8-42-113(1) and § 8-42-107.5 contain the word "receive." The respondents identify no special statutory definition of the word "receive." The relevant dictionary definition of "receive" is "to acquire or take (something given, offered, or transmitted)." Webster's II New College Dictionary (1986). Thus, under § 8-42-113(1), a claimant may not acquire benefits to be transmitted during any week the claimant is incarcerated following conviction. Under § 8-42-107.5, a claimant, whose impairment rating is 25 percent or less, is not to acquire combined TTD and PPD benefits in excess of $60,000.
Here, the respondents concede the claimant did not take possession of TTD and PPD benefits during the period of incarceration. In fact, the respondents filed an admission of liability expressly terminating the claimant's right to "receive" TTD and PPD benefits under the authority of § 8-42-113(1). It follows that during his incarceration the claimant did not "receive" any TTD and PPD benefits which may be counted against the cap contained in § 8-42-107.5.
This interpretation is consistent with the legislative intent underlying both statutes. Section 8-42-113(1) was enacted to alleviate the perceived unfairness to employers where the employer was required "to pay benefits as compensation for lost earning capacity to persons who have no earning capacity because their imprisonment has removed them from the workforce." Salazar v. Hi-Land Potato Co., 917 P.2d 326 (Colo.App. 1996). Section 8-42-107.5 was enacted to place an absolute cap on the amount of benefits a claimant may receive, and an insurer must pay, for lost earning capacity whether payable as TTD or PPD. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Significantly, § 8-42-113(1) limits the claimant's eligibility to receive benefits during "any week" the claimant is incarcerated, but contains no provision limiting future eligibility or requiring an adjustment under the cap.
Here, § 8-42-113(1), relieved the respondents of the burden of paying compensation for lost earning capacity during the claimant's period of incarceration. However, the impairment of the claimant's earning capacity extended beyond the period of incarceration, and there was no injustice in requiring the respondents to again assume responsibility for compensating the claimant once he was released. As of that time, the state was no longer providing for the claimant's essential needs, and the claimant's access to the labor market was once again impaired by the effects of the industrial injury. However, § 8-42-107.5 operated to limit the respondents' overall liability by restricting the total compensation for TTD and TTD benefits to $60,000. We perceive no injustice or violation of the statutory principles in the ALJ's refusal to accord the respondents credit for benefits which they never paid and which the claimant did not receive during incarceration.
The respondents place some emphasis on the portion of § 8-42-113(1) which provides that when the claimant is incarcerated the claimant is not "entitled" to receive any benefits. In our view, this argument is unavailing. Certainly, if the claimant is not entitled to benefits he may not "receive" them. It is only those benefits which are "received" which count against the cap. Nothing in § 8-42-107.5 suggests the respondents may take credit for benefits the claimant might have received if he were "entitled."
Our decision in Kemper v. LPR Construction, W.C. No. 4-225-874 (December 14, 2000), is inapposite. That case did not involve the statutes at issue here. Further, as the claimant argues, the insurance company in the Kemper case took credit for benefits it actually paid, albeit to the Family Support Registry rather than directly to the claimant.
II.
By a separate motion to dismiss the appeal, the claimant argues that we lack jurisdiction because this order was not issued within 60 days of the time the certified record was originally received by the Industrial Claim Appeals Office. Section 8-43-301 (8), C.R.S. 2002. Thus, the claimant reasons, the ALJ's order was affirmed by operation of law. Section 8-43-301(11), C.R.S. 2002.
However, § 8-43-301(8) permits us to "remand any order" if we determine that conflicts in the evidence are not resolved or the findings are insufficient to support appellate review. The certified record was originally received for review on January 22, 2003. On March 3, 2003, well within the 60 day limitation of § 8-43-301(8), we complied with the statute by remanding the file to the Division of Administrative Hearings (DOAH) because the findings were insufficient to determine whether the respondents filed a timely petition to review, and the record contained "an apparent conflict regarding the date on which the petition to review was received." Indeed, consideration of the jurisdictional issue was at the behest of the claimant who argued in his brief that the petition to review was not timely filed. Thus, we adhered to the statutory time limitation for entry of an order, and the issuance of our order once again vested jurisdiction in the DOAH. Cf. Hrabczuk v. John Lucas Landscaping, 888 P.2d 367 (Colo.App. 1994) (effect of appellate court's mandate was to confer jurisdiction in tribunal from which appeal was taken). The sixty day limitation did not begin to run again until the certified record was transmitted to us for the second time on July 2, 2003, after resolution of the dispute concerning the timeliness of the respondents' petition to review.
We also note that once jurisdiction is returned to the DOAH we have no statutory authority to require the DOAH to transmit a record to this office. Section 8-43-301(9), C.R.S. 2002, cited by the claimant, gives us jurisdiction to issue orders to carry out appellate review. However, once the matter was remanded, we were no longer engaged in appellate review and the statute did not apply. Neither can we review a record which has not been transmitted by the DOAH. It is the responsibility of the DOAH to certify and transmit records to this office in a timely fashion. Section 8-43-301(7), C.R.S. 2002.
The claimant also requests the appeal be dismissed for lack of prosecution. However, just as we lack authority to compel the DOAH to transmit the record, so do the respondents. The claimant cites no evidence that the respondents hindered transmission of the record. Thus, the motion is denied.
IT IS THEREFORE ORDERED that the ALJ's order dated November 1, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 7, 2003 to the following parties:
Bruce Williams, 509 N. Nevada Ave., Apt. 6, Colorado Springs, CO 80903
Timothy R. Kunau d/b/a Kunau Drilling, 23945 Lucky Ln., Route 2, Calhan, CO 80808
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Shane A. Wetmore, Esq., 1625 Broadway, #2300, Denver, CO 80202
By: A. Hurtado