Opinion
W.C. No. 4-605-889.
December 3, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied temporary partial disability (TPD) benefits for the period December 18, 2003, to February 5, 2004, and did not increase the claimant's average weekly wage (AWW) to include the cost of COBRA replacement insurance. We affirm.
The claimant suffered a disabling industrial injury on December 18, 2003. On February 5, 2004, the employer discharged the claimant from modified employment and denied liability for temporary disability benefits.
The ALJ found the claimant was not responsible for the termination of employment. Therefore, the ALJ ordered the respondents to provide temporary total disability benefits from February 5, 2004, to April 19, 2004, and TPD benefits from April 19, 2004, to May 13, 2004. However, the ALJ denied the claim for TPD benefits between December 18, 2003, and February 5, 2004. Further, relying on Midboe v. Industrial Claim Appeals Office, 88 P.3d 643 (Colo.App. 2003), and our subsequent decision in Marsh v. Sunnyrest Health Care, W.C. No. 4-536-309 (April 23, 2004), the ALJ determined the claimant was not entitled to have the cost of COBRA health care insurance included in the AWW because the claimant failed to purchase COBRA coverage after the employment terminated.
I.
On review, the claimant contends, the ALJ erroneously failed to award TPD benefits between December 18, 2003, and February 5, 2004. We perceive no basis to disturb the contested portion of the ALJ's order.
Section 8-42-106(1), C.R.S. 2004, provides as follows:
In case of temporary partial disability, the employee shall receive sixty-six and two-thirds percent of the difference between said employee's average weekly wage at the time of the injury and said employee's average weekly wage during the continuance of the temporary partial disability, not to exceed a maximum of ninety-one percent of the state average weekly wage per week. (Emphasis added).
In determining a claimant's AWW, § 8-42-102(3), 2004, authorizes the ALJ to apply any method that "will fairly determine the claimant's wage loss and diminished earning capacity." Consequently, we may not disturb the ALJ calculations in the absence of a clear abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986).
The legal standard on review of an alleged abuse of discretion is whether the ALJ's order "exceeds the bounds of reason." Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Furthermore, we cannot say that the ALJ abused his discretion in calculating the claimant's AWW where the ALJ's determination is supported by substantial evidence and the applicable law. Coates, Reid Waldron v. Vigil, supra.
The claimant does not dispute the ALJ's finding that the claimant's AWW at the time of the injury was $518.10. Rather, the claimant argues that he earned less than $518.10 in some of the weeks between December 18 and February 5 and the ALJ's calculation of his AWW during this period fails to compensate him for lost wages during those weeks. However, the claimant does not dispute the figures underlying the ALJ's calculations, or the accuracy of the ALJ's calculations, aside from the ALJ's failure to include the cost of COBRA replacement insurance. Further, the claimant concedes that because he is paid bi-weekly it is difficult to determine his actual earnings for each work week between December 18 and February 5, 2004.
We have reviewed the record. The ALJ's findings are supported by the substantial evidence and the findings are consistent with the applicable law. The parties agreed that the claimant's AWW at the time of the injury was fairly calculated by dividing the claimant's gross earnings by the number of weeks the claimant worked. (Tr. p. 4). Accordingly, the ALJ found the claimant's pre-injury AWW was $518.10 based on evidence the claimant earned $14,580.90 for 197 days of work immediately preceding the industrial injury and through December 23, 2003. Using the same method, the ALJ found the claimant earned $3,428.90 between December 18, 2003, and February 5, 2004 for an AWW of $545.51. Under these circumstances, we cannot say the ALJ's calculation of the claimant's AWW between December 18 and February 5 exceeds the bounds of reason. Moreover, the ALJ's findings support the conclusion the claimant failed to prove any wage loss prior to February 5, 2004. Consequently, the ALJ did not err in denying TPD.
II.
The claimant also contends the Industrial Claim Appeals Panel misinterpreted Midboe in Marsh v. Sunnyrest Health Care, supra, to require the claimant to "continue" health insurance coverage at his own expense before the cost of continuing COBRA coverage may be included in the AWW. The claimant also argues that the Panel's interpretation of Midboe rewards employers who contest liability for temporary disability benefits, and thereby, withhold funds necessary for the claimant to purchase COBRA insurance so that COBRA health insurance may be included in the AWW. We perceive no basis to disturb the ALJ's order.
Section 8-40-201(19)(b), C.R.S. 2004, provides that the term wages shall include:
"the amount of the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan."
In Schelly v. Industrial Claim Appeals Office, 961 P.2d 547 (Colo.App. 1997), a panel of the court reasoned that the statute was enacted to insure that disabled claimants would have access to funds for the purchase of `similar or lesser' health insurance when the employer no longer pays part of the premium for such insurance. However, the court expressly refused to consider whether the cost of insurance is included in the AWW if the injured worker does not actually purchase substitute insurance.
In Midboe v. Industrial Claim Appeals Office, supra, the issue was whether the AWW includes the premium paid by the claimant for group health insurance where the claimant remains employed and the employer continues to pay a portion of the insurance. The court held that under these circumstances, the claimant's wages were not compromised by excluding the cost of health insurance from the AWW. The Midboe court reasoned that the terms "continuing" and "conversion" are specialized terms of art derived from the Consolidated Omnibus Budget and Reconciliation Act of 1985 currently codified at § 10-16-108 C.R.S. 2004. Thus, the court stated that "a claimant's AWW includes the cost of health insurance only when a claimant has `continued' the employee's coverage at his or her own expense." 88 P.3d at 646.
In Marsh v. Sunnyrest Health Care, supra, and Ashmore v. Nu Horizon Window Systems, Inc., W.C. No. 4-593-027 (August 25, 2004), we read Midboe to mean that once the issue of "continuation" arises after termination of the employer's plan, the claimant must comply with COBRA by electing and paying for coverage or, as was the case in Midboe, there is no "cost" of "continuation." Moreover, the Midboe court held that Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001), did not compel a contrary result. Consequently, in Marsh we inferred the Midboe court did not read Humane Society to hold that the claimant is not required to prove the actual purchase of replacement insurance to establish that the cost of replacement insurance be included in the AWW. The claimant's arguments do not persuade us to depart from our conclusions in Marsh.
Moreover, in Ashmore we expressly recognized that in some cases, particularly those involving full contests, this construction imposes a hardship on claimants unable to pay the cost of continuing coverage pending the outcome of the case. We adhere to our conclusion that this problem is a natural, and arguably unfortunate, consequence of the statutory scheme selected by the legislature to compromise the competing arguments concerning the value of health insurance when calculating the AWW and we may not presume to substitute our judgment for that of the General Assembly concerning matters of social policy reflected in lawfully enacted statutes. See Compton v. Industrial Claim Appeals Office, 13 P.3d 844 (Colo.App. 2000). Therefore, we reject the claimant's contention that the application of Midboe to these facts is contrary to public policy. It follows that the ALJ ruled correctly in refusing to increase the claimant's AWW to include the cost of COBRA replacement insurance.
IT IS THEREFORE ORDERED that the ALJ's order dated June 17, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
Shane Carmody, Colorado Springs, CO, Quality Services Incorporated, San Antonio, TX, Commerce Industry, C/O Dawn Chambers, AIG Claim Services, Inc., Phoenix, AZ, William A. Alexander, Jr. Esq., Springs, CO, (For Claimant).
Matthew C. Hailey, Esq., Denver, CO, (For Respondents).