Summary
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.
Summary of this case from In re Bennett v. Colorado Springs, W.C. NoOpinion
W.C. No. 4-309-712.
October 12, 2005.
FINAL ORDER
The claimant seeks review of an order dated June 6, 2005 of Administrative Law Judge Harr (ALJ) that refused to award permanent partial disability (PPD) benefits calculated upon a temporary total disability (TTD) rate that exceeds the maximum rate in effect on the date of the claimant's injury. We affirm.
The ALJ's order here was entered on stipulated facts. The claimant sustained an admitted work-related injury while working for the respondent on March 10, 1995. At the time of claimant's injury, the director had calculated $442.61 as the maximum TTD rate for workers' compensation benefits pursuant to § 8-42-105(1) C.R.S. 2005 and § 8-47-106 C.R.S. 2005.
Over time the parties have agreed to increase the claimant's average weekly wage (AWW) to $736.86. The respondent filed a final admission, admitting liability for PPD benefits based upon a permanent medical impairment rating of 29 percent of the whole person. The respondent is paying claimant PPD benefits calculated at the maximum TTD rate of $442.61. The claimant contends her PPD benefits should be calculated upon a TTD rate of $491.24, which exceeds the maximum rate of $442.61 in effect on the date of her injury.
Generally, TTD benefits are paid at the rate of sixty-six and two-thirds percent of the injured worker's average weekly wage, subject to a maximum rate of ninety-one percent of the state average weekly wage, which is determined annually. PPD benefits are in turn calculated in part upon the TTD rate.
Relying heavily upon Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), the claimant requests that her PPD benefits be based upon a TTD rate that exceeds the maximum rate in effect on the date of claimant's injury. The claimant notes that in Campbell, the court stated that "the entire objective of wage calculation is to arrive at a fair approximation of the claimant's's wage loss and diminished earning capacity."
In rejecting the claimant's argument, the ALJ recognized that Campbell v. IBM Corp., under some circumstances allows the ALJ to determine a claimant's TTD rate based upon the claimant's average weekly wage on a date other than the date of injury. The ALJ also noted that § 8-42-102(3), C.R.S. 2004 grants the ALJ discretionary authority to alter that formula if for any reason it will not fairly determine claimant's AWW. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). However, the ALJ found that there is no statute or case law, including Campbell, which allows an ALJ to award TTD in excess of the maximum benefit rate that was in effect on the date of injury. The ALJ cited Pubanz v. State of Colorado, W.C. No. 3070168 (September 9, 1997) in which we determined that the ALJ lacks discretion to award TTD benefits in excess of the maximum rate calculated by the director pursuant to § 8-42-105(1) and § 8-47-106. Therefore, the ALJ determined that the claimant is limited to temporary total disability benefits at the maximum rate in effect on March 10, 1995.
On appeal, the claimant reasserts the arguments he made before the ALJ. The claimant argues that because an ALJ may award benefits based upon the average weekly wage at the time of a subsequent disability, the ALJ may necessarily award benefits based upon the maximum benefit rate in effect at the time of the subsequent disability. We disagree.
In the absence of authority from the appellate courts holding otherwise, we are not persuaded to depart from our reasoning in Pubanz. In Pubanz we noted 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), C.R.S. 2004. Furthermore, temporary total disability benefits are based upon the average weekly wage of the injured worker.
We recognize that, under some circumstances, the ALJ may determine a claimant's temporary total disability rate based upon his average weekly wage on a date other than the date of injury. § 8-42-102(3); Campbell v. IBM Corp., supra. However, we agree with the ALJ that regardless of his discretion to calculate the pertinent average weekly wage, the ALJ has no discretion to award temporary disability benefits in excess of the maximum temporary disability rate in effect on the date of injury.
Moreover, nothing in Campbell compels a contrary conclusion. As the ALJ expressly recognized, Campbell concerns calculation of the pertinent average weekly wage, and does 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, we do 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.
Section 8-42-105(1), provides that injured workers shall receive temporary total disability benefits equal to:
"sixty-six and two-thirds percent of said employee's average weekly wage 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 added).
As we noted in Pubanz, we think in this context the term "exceed" is unambiguous and means "to be greater than" or "to go beyond a limit." Therefore, § 8-42-105 limits the claimant to temporary disability benefits at a rate not greater than ninety-one percent of the state average weekly wage.
We are further 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 (Act) insofar as it failed to provide an escalation of permanent total disability benefits to keep pace with inflation. The facts in that case involved a claimant who was awarded permanent total disability benefits at a rate of $40.65 per week in connection with a 1963 injury. Former § 81-12-2, C.R.S. 1963, the law in effect on the claimant's date of injury entitled claimants to permanent total disability benefits equal to sixty-six and two-thirds percent of the average weekly wage of the injured employee, not to exceed a statutorily prescribed maximum of $43.75 per week. The statutory maximum thereafter increased with changes in the state average weekly wage. By June 1980 the maximum permanent total disability rate had increased to $244.65 per week. However, the claimant continued to receive benefits at the rate of $40.65 per week under former § 81-12-2.
In rejecting the claimant's constitutional challenge, the court expressly acknowledged the claimant's argument 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. However, the court concluded that:
"[T]o effectuate the Act's basic goals of speedy and reliable compensation of injured workers, the General Assembly has enacted a formula which calculates awards to an injured worker based on loss of earning power at the time of injury. [citation omitted] The formula allows all parties involved to determine with some degree of certainty the amount of compensation to which the worker is entitled. Not only does this certainty aid the parties in reaching prompt agreement on compensation issues, it also aids the state insurance compensation fund and other insurers in setting employer premiums." (Emphasis in original) 648 P.2d at 647.
Therefore, the court concluded that the statutory formula for awarding permanent total disability benefits was rationally related to the furtherance of a legitimate state purpose.
The ALJ's determination is in keeping with the court's reasoning in Bellendir and he did not abuse his discretion in refusing to award PPD benefits calculated upon a TTD rate that exceeds the maximum rate in effect on the date of the claimant's injury.
IT IS THEREFORE ORDERED that the ALJ's order dated June 6, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Curt Kriksciun ____________________ Tom Schrant Ruth Bobbett, Westminster, CO, Kmart Corporation, c/o Landon Wallis, Sedgwick CMS, Greenwood Village, CO, Landon Wallis, Sedgwick CMS, Greenwood Village, CO, Thomas D. Hacker, Esq., Denver, CO, (For Claimant).Eric J. Pollart, Esq., Greenwood Village, CO, (For Respondent).