Opinion
No. 84CA0930
Decided March 14, 1985. Rehearing Denied April 11, 1985. Certiorari Granted October 21, 1985 (85SC184). Certiorari Dismissed as Improvidently Granted February 23, 1987.
Certiorari granted on following issue:
Whether payments made by the City and County of Denver to an injured police officer pursuant to City Charter C5.41-1 were "wages," as defined in 8-7-103(22)(a), 3 C.R.S. (1973), on which an unemployment compensation claim could be based.
Review of Order from the Industrial Commission of the State of Colorado
Stephen H. Kaplan, City Attorney, Dianne E. Eret, Assistant City Attorney, for Petitioner.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Christa D. Taylor, Assistant Attorney General, for Respondents. Division II.
In this unemployment compensation case, the City and County of Denver (Denver) seeks review of an order of the Industrial Commission granting a full award of benefits to Mary P. Ross (claimant) based on an interpretation that certain payments received by claimant from Denver were wages and not disability payments. We reverse.
The facts of this case are not in dispute. On March 29, 1981, claimant, a Denver police officer, was seriously injured in an automobile accident in the course of her employment. Pursuant to Denver City Charter § C5.41-1 relating to police officers who are injured in line of duty, for a year following the accident claimant was paid by Denver an amount equal to her full salary. During that year, claimant was carried as assigned to a police medical unit, but she rendered no services. These payments terminated as of March 29, 1982. From April through August 1982, claimant received workmen's compensation payments.
In September 1982, claimant applied for unemployment compensation. It is undisputed that the base period for her claim was April 1981 through March 1982. Section 8-70-103(1), C.R.S. Denver disputed her eligibility.
The dispositive issue was whether the payments claimant had received from Denver by virtue of the charter provision during the base period were "wages" or "accident disability" benefits. If they were "wages," she was eligible for unemployment benefits under § 8-73-107(1)(e), C.R.S. If they were "accident disability" payments, the amount of these payments had to be excluded from "wages" as defined in § 8-70-103(22), C.R.S., and, without those payments being included, she had not received sufficient "wages" during the base period to meet the eligibility requirements. The Commission determined that the payments were "wages," and ordered a full award of unemployment benefits commencing as of October 2, 1982.
The same issue is presented in this review — whether the payments made to claimant during the year after the accident were "wages" or "accident disability" benefits. Since there is no factual dispute involved, resolution of that issue is one of law, and this court is not bound by the conclusions on that issue made by the Commission. Dorsch v. Industrial Commission, 185 Colo. 219, 523 P.2d 458 (1974); Brush Hay Milling Co. v. Small, 154 Colo. 11, 388 P.2d 84 (1963).
The Employment Security Act provides a clear definition of "wages" and a clear exception. "Wages" is defined by § 8-70-103(22)(a), C.R.S., as "all remuneration for personal services." Section 8-70-103(22)(b)(I), C.R.S., provides that for purposes of determining monetary eligibility, the term "wages" shall not include "[t]he amount of any payment made to . . . an employee under a plan or system established by an employer which makes provision for . . . classes of his employees . . . on account of . . . sickness or accident disability." (emphasis supplied)
Denver City Charter § C5.41-1 states that:
"[a]ny member of the Denver police department in the classified service, who shall become so physically . . . disabled by reason of bodily injuries received in the discharge of the duties of said member in said department that he is rendered unable to perform his duties in said department, shall be granted any necessary leave or leaves of absence not to exceed one year at his full salary for the rank which he holds in said department, and shall be compensated from the regular police department payroll." (emphasis supplied)
It provides a system for payment to a police officer for "accident disability" as specified in § 8-70-103(22)(b)(I), C.R.S. The officer is not remunerated for personal services; the payments are made because of the officer's inability to perform services because of bodily injuries received — "accident disability." The term "full salary" as used in the charter section is merely a measurement of the amount of compensation a disabled officer is to receive. See Industrial Commission v. Sirokman, 134 Colo. 481, 306 P.2d 669 (1957).
Since the payments to claimant pursuant to the charter provision were made under a plan or system established by Denver, her employer, which provides for police officers on account of "accident disability," the amount of these payments cannot be counted as "wages" for determining monetary eligibility for unemployment benefits under § 8-73-107(1)(e), C.R.S. (1984 Cum. Supp.). Inasmuch as her "wages" during the base period, exclusive of the C5.41-1 payments, were insufficient to meet the eligibility requirements, she is not entitled to unemployment benefits.
The order of the Commission is set aside, and the cause is remanded for the entry of a new order denying claimant's application for unemployment compensation and either requiring repayment of the amount of benefits paid to her pursuant to previous orders of the Division and of the Commission or waiving repayment on a determination by the Division that repayment would be inequitable. See § 8-81-101(4)(a)(I), C.R.S. (1984 Cum. Supp.).
JUDGE KELLY concurs.
JUDGE BERMAN dissents.