Opinion
W.C. No. 4-295-688.
October 1, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated April 30, 2008, that dismissed the claimant's request for an increase in the rate of admitted temporary total disability (TTD) benefits and for an increase in the rate of admitted permanent total disability benefits (PTD). We affirm.
The relevant facts are not in dispute. The claimant suffered an admitted work injury on May 1, 1996. The respondent admitted liability for TTD benefits at the rate of $451.22, which was the maximum rate of TTD benefits, as determined by the Director of the Division of Workers' Compensation. The claimant returned to work and then had multiple periods of disability and the respondent admitted liability for TTD benefits for those periods. On July 15, 2000, the claimant retired as an employee and the respondent admitted liability for TTD benefits at the rate of $451.22. Thereafter, the respondent paid for various periods of disability admitting for TTD benefits at the rate of $451.22. On August 29, 2007, the respondent filed a final admission of liability for PTD benefits commencing March 19, 2007, at the rate of $451.22.
The maximum rate of weekly TTD benefits, as determined by the Director of the Division of Workers' Compensation, was $451.22 on May 1, 1996, $593.81 on July 16, 2000, and $719.74 on March 19, 2007. The respondent does not dispute that the claimant's average weekly wage at all relevant times exceeded the amount necessary to qualify for the maximum TTD rate on each of those dates.
The claimant requested that his TTD rate for the admitted TTD commencing July 16, 2000, be increased to the maximum rate in effect on July 16, 2000. The claimant also requested that his PTD rate commencing March 19, 2007, be increased to the maximum rate in effect on that date. The ALJ denied the claimant's request for an increase in the rate of admitted TTD benefits from July 16, 2000 through March 18, 2007. The ALJ also denied the claimant's request for an increase in the rate of admitted PTD benefits commencing March 19, 2007.
On appeal, the claimant argues that under Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), he is entitled to a fair computation of his wages for purposes of PTD benefits which would be based on his wage he was earning in 2007, when he was found to have reached maximum medical improvement. The claimant also argues that he should be entitled to an increased computation of his wages for purposes of TTD without regard to the statutory maximum compensation rate in effect at the time of his injury in 1996. The claimant contends that the ALJ erred in depriving him of equal protection rights and upholding the ALJ's order would result in dissimilar treatment of similarly situated individuals. The claimant argues that if the claimant had changed employers and a new claim had been opened based upon the claimant's worsening of condition the claimant would have been entitled to disability benefits based upon the wages earned at the commencement of the period of disability.
We initially note that in Coates, Reid Waldron v. Vigil 856 P.2d 850, 855 (Colo. 1993) the Supreme Court of Colorado citing, inter alia, Bellendir v. Kezer, 648 P.2d 645 (Colo. 1982), stated that "in those instances where an employee who is paid on a weekly basis has incurred a single disabling work-related injury, the claimant's disability benefits are derived from his or her average weekly wage in effect at the time of the subject injury." Here there is only one claimed date of injury. Tr. at 73. The Coates court, in interpreting the predecessor to the present § 8-42-102, recognized as a starting point that under § 8-42-101(2) average weekly wages for the purpose of computing benefits are to be calculated upon the remuneration which the injured employee was receiving at the time of the injury. However the court in Coates recognized that this general provision was subject to § 8-42-101(3), which provided that when the method for computing average weekly wage will not fairly compute the average weekly wage the ALJ may compute the average weekly wage by such other method as will fairly determine such employee's average weekly wage. However, in our view the discretion given to ALJs in 8-42-102(3) to compute the average weekly wage in such a manner as will fairly determine the employee's average weekly wage does not extend to awarding an amount above the maximum rate for TTD benefits at the time of the injury.
We begin our analysis with the basic tenant that the rights and liabilities of parties in a workers' compensation claim are governed by the substantive law in effect on the day of injury. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995). Similarly, "average weekly wage" is the money rate at which services rendered are recompensed under the contract of hire "at the time of the injury." Section 8-40-201(19)(a). Furthermore, temporary total disability benefits are based upon the average weekly wage of the injured worker. Section 8-42-102(1).
Section 8-42-105 provides a maximum rate for temporary disability benefits. Section 8-42-105 provides that:
In case of temporary total disability of more than three regular working days' duration, the employee shall receive sixty-six and two-thirds percent of said employee's average weekly wages so long as such disability is total, not to exceed a maximum of ninety-one percent of the state average weekly wage per week. Emphasis supplied.
Further § 8-42-111 provides a maximum rate for permanent total disability benefits. Section 8-42-111 provides that:
In cases of permanent total disability, the award shall be sixty-six and two-thirds percent of the average weekly wages of the injured employee and shall continue until death of such person so totally disabled but not in excess of the weekly maximum benefits specified in this article for injuries causing temporary total disability. Emphasis supplied.
In interpreting these provisions, 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. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
In our view, the plain language of these statutes does not allow an ALJ to award TTD benefits or PTD benefits in excess of the maximum temporary disability rate in effect on the date of injury. Further, we are aware of no statute or case law, including Campbell v. IBM Corp., which would allow for benefits to be ordered in excess of the maximum rate in effect on the date of the injury.
In Campbell v. IBM Corp., an employee's initial injury occurred ten years before her deteriorating condition caused her to cease working. Her employer argued that her average weekly wage should be based on the wages she earned at the time of her initial injury, rather than the higher wages she had earned through salary increases and promotions during the intervening years. The Campbell court relying on the discretionary authority under § 8-42-102(3) determined that it would be "manifestly unjust to base claimant's disability benefits in 1986 and 1989 on her substantially lower earnings in 1979," and determined that her average weekly wage should be based upon the higher salary earned at the time her deteriorating condition caused her to stop working. Campbell v. IBM Corp., 867 P.2d at 82.
However, as noted by the panel in Bobbett v. Kmart, W. C. No. 4-309-712 (October 12, 2005), Campbell concerned calculation of the pertinent average weekly wage, and did not address circumstances where the worker's average weekly wage results in a temporary disability benefit rate which exceeds the maximum rate in effect at the time of the injury. Therefore, the panel in Bobbett did not consider Campbell as supporting the claimant's contention that temporary disability benefits for a subsequent disability may be awarded based upon the maximum rate at the time of the subsequent disability.
In Pubanz v. State of Colorado, W.C. No. 3070168 (September 9, 1997) the panel determined that an ALJ lacks discretion to award TTD benefits in excess of the maximum rate calculated by the director pursuant to § 8-42-105(1). Here the ALJ, relying on Pubanz, determined that the claimant was limited to the maximum benefit rate that is in effect on the date of the injury.
In Bobbett, the panel stated that the absence of authority from the appellate courts holding otherwise, they were not persuaded to depart from its reasoning in Pubanz. In Simpson v. Benchmark/Elite, Inc., W.C. No. 4-467-097 (August 8, 2007) the panel again following the reasoning in Pubanz found that an ALJ had not erred in refusing to award PTD benefits calculated upon a TTD rate that exceeded the maximum rate in effect on the date of the claimant's injury.
We are aware of Salazar v. Nelson W. C. No. 4-213-910, (October 29, 1998) in which the court of appeals did not affirm the panel's determination the maximum TTD rate in effect on the date of the injury limits the amount of disability benefits. However, as we read the court of appeals' decision, the court found there was an irreconcilable conflict between the benefit cap for PTD found in § 8-42-111(1) and § 8-42-105(1) and the cost of living adjustment provision found in § 8-42-111(4). The cost of living adjustment being last enacted, the court of appeals found it prevailed and gave it effect. Here, there is no involvement of the cost of living adjustment since the accident occurred in 1996, which is after the effective window for receiving the statutory cost of living adjustment. Therefore, we understand the guidance provided by the court of appeals to be that, except in the relatively rare case of a claim that involves a cost of living adjustment, there is a benefit cap for PTD benefits as mandated by the maximum TTD rate in effect on the date of the injury. The court of appeals noted in Salazar, as we have here, that § 8-42-111(1) and § 8-42-105(1) taken together, form the benefit cap for PTD benefits. Therefore, we are not persuaded to abandon the reasoning in Pubanz, Bobbett and Simpson.
We are also persuaded by the court's reasoning in Bellendir v. Kezer, 648 P.2d 645, 647 (Colo. 1982). In Bellendir, the claimant challenged the constitutionality of the Colorado Workers' Compensation Act insofar as it failed to provide an escalation of permanent total disability benefits to keep pace with inflation. The court in Bellendir v. Kezer noted that the ceiling for determining the maximum benefits payable to a person who is permanently and totally disabled is set by statute. The court further noted that although the benefit ceiling is periodically raised "the benefit level continues, in the first instance, to be determined in relation to the injured employee's actual weekly wage at the time of his accident." Bellinder v. Kezer, 648 P.2d at 646. In rejecting the claimant's constitutional challenge, the court expressly acknowledged the claimant's argument, similar to the argument advanced by the claimant here, that the payment of lifetime benefits based upon a formula in effect on the date of injury may be unfair, and that "a more just system" could be formulated. The court further noted that the legislature restricted cost of living adjustments, for PTD benefits, to only injuries occurring on and after July 1, 1991 and before July 1, 1994. The court in Bellendir concluded that if the legislature had chosen to it could have eliminated what the claimant here characterizes as an unjust diminishment of his earning capacity and therefore, the claimant's relief, if any, lies with the legislature. Following the principals set forth in Bellendir, the claimant's requested relief here, if any, again lies with the legislature.
We are not persuaded by claimant's arguments that the statute related to the maximum benefit rate is procedural in nature. In workers' compensation cases, the substantive rights and liabilities of the parties are determined by the statute in effect at the time of a claimant's injury, while procedural changes in the statute become effective during the pendency of a claim. City of Florence v. Pepper 145 P.3d 654 (Colo. 2006). For purposes of retrospectivity analysis, substantive statutes relate to the creation, elimination, or modification of vested rights or liabilities, while procedural statutes relate only to remedies or modes of procedure to enforce such rights or liabilities. American Compensation Ins. Co. v. McBride, 107 P.3d 973 (Colo.App. 2004).
The state average weekly wage forms the basis for establishing maximum benefits under the Workers' Compensation Act of Colorado and is determined annually by the Director of the Division of Workers' Compensation. Section 8-47-106, C.R.S. 2008. We disagree with the claimant's assertion that the maximum benefit rate is procedural. See, e.g., Bellindir v. Kezer, 648 P.2d at 647 (one purpose of Act is to provide speedy and reliable compensation, which is furthered by formula calculating awards based on loss at time of injury or death); Rosa v. Industrial Claim Appeals Office, 885 P.2d 331, 334 (Colo.App. 1994) (offset statute a substantive provision, citing Bellinder v. Kezer, supra).
The claimant also argues that the ALJ determination deprives him of equal protection rights and would result in dissimilar treatment of similarly situated individuals. This is because, according to the claimant, injured claimants would be treated differently where they continued employment with the same employer during multiple periods of disability. The claimant argues that because he periodically returned to his job and received increases in his salary during which time the maximum compensation rate increased, his TTD benefits and PTD benefits should not be limited to the rate in effect at the time of his injury.
We first note that the claimant argues that he is entitled to the maximum rate of TTD in effect at the time he reached MMI. There is certainly legal authority that permanent disability is determined at the time the claimant reached MMI. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995); Holly Nursing Care Center v. Industrial Claim Appeals 992 P.2d 701, (Colo.App. 1999). However, we know of no authority, nor has the claimant cited any for the proposition that maximum average weekly wage in effect at the time the claimant reached MMI controls the amount of benefits the claimant is to receive for TTD or PTD benefits. To the contrary, as noted above there is authority that disability benefits are derived from the claimant's average weekly wage in effect at the time of the subject injury. Coates, Reid Waldron v. Vigil, supra.; see also, Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, supra.
However, on the issue of the constitutional challenge, insofar as the claimant may be understood as asserting "facial" challenges to the statutory provisions we lack jurisdiction to address the claimant's constitutional challenges to § 8-43-301(2). Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Furthermore, to the extent that the claimant may be understood as asserting an "as applied" challenge to the statute, we recognize that administrative agencies have the authority to determine whether "an otherwise constitutional statute has been unconstitutionally applied." Horrell v. Department of Administration, 861 P.2d 1194, 1196 (Colo. 1993).
Nonetheless, because our analysis is so dependent upon plain and ordinary meanings of the relevant statutes, a "facial" and "as applied" challenge are so intertwined that we do not perceive how we can consider the "as applied" challenges without addressing the "facial" constitutionality of the statutes. To do so would violate the principle of separation of powers. See Denver Center for Performing Arts v. Briggs, 696 P.2d 299, 305 (Colo.App. 1985) (administrative rulings concerning "facial" challenges to statutes will not be considered "authoritative" on judicial review). Therefore, we decline to address any "as applied" argument to the extent such argument was raised by the claimant.
IT IS THEREFORE ORDERED that the ALJ's order issued April 30, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
STEVEN BENNETT, 3210 MONTEBELLO DRIVE WEST, COLORADO SPRINGS, CO, (Claimant).
CITY OF COLORADO SPRINGS, Attn: VICTORIA MCCOLM, SPRINGS, CO, (Employer).
STEVEN U MULLENS, PC, Attn: STEVEN U MULLENS, ESQ., MORENO AVE, COLORADO SPRINGS, CO, (For Claimant).
RITSEMA LYON, PC, Attn: THOMAS M CONDAS, ESQ./SUSAN K REEVES, ESQ., COLORADO SPRINGS, CO, (For Respondents).