Opinion
W.C. No. 4-345-998
April 16, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Atencio (ALJ). The claimant contends the ALJ erroneously failed to increase his temporary total disability benefits as provided by § 8-43-408(1), C.R.S. 1998. We agree, and modify the ALJ's order accordingly.
Section 8-43-408(1) provides that if at the time of the injury the employer is uninsured for workers' compensation "the amounts of compensation or benefits provided in said articles shall be increased fifty percent." In this context, the term "compensation" refers to disability benefits. Jacobson v. Doan 136 Colo. 496, 319 P.2d 975 (1957); Industrial Commission v. Hammond, 77 Colo. 414, 236 P. 1006 (1925).
Here, the essential facts are undisputed. The claimant suffered a compensable injury and as a result, became temporarily disabled commencing July 18, 1997. The claimant's average weekly wage is $756, which results in a temporary total disability compensation rate of $468.44, the maximum rate allowed by § 8-42-105(1), C.R.S. 1998, at the time of the claimant's injury. The respondent did not have workers' compensation insurance at the time of the injury.
In an order dated February 23, 1998, the ALJ awarded temporary partial and temporary total disability benefits for various periods commencing July 18, 1997. Further, the ALJ determined that the claimant is entitled to a fifty percent increase of temporary partial disability benefits because of the respondent's failure to comply with the mandatory insurance requirements of the Workers' Compensation Act (Act). However, because the claimant's temporary total disability rate is the maximum rate allowed by 8-42-105(1), the ALJ determined that the fifty percent increase does not apply to the temporary total disability award. The claimant timely appealed.
Thereafter, the ALJ issued a series of corrected orders, which provided for a fifty percent increase of temporary total disability benefits. However, the ALJ ultimately reinstated the original order. See Order dated May 14, 1998.
Section 8-42-105(1) provides that a claimant is entitled to temporary total disability benefits equal to sixty-six and two-thirds percent of the average weekly wage up to a maximum of ninety-one percent of the state average weekly wage. The claimant argues that the benefit cap in § 8-42-105(1) does not preclude a fifty percent increase for the employer's failure to carry workers' compensation insurance. In support, the claimant relies on Merchant Oil, Inc., v. Anderson, 897 P.2d 895 (Colo.App. 1995), in which the court upheld an order for a maximum permanent partial disability award increased fifty percent under § 8-43-408(1). Further, the claimant contends that permanent partial and temporary total disability benefits should not be treated differently.
The respondent contends that § 8-43-408(1) and § 8-42-105(1) are irreconcilable, and that under these circumstances § 8-42-105(1) controls. Consequently, the respondent contends that where, as here, the claimant is receiving temporary disability benefits at the maximum rate allowed by § 8-42-105(1), the benefits may not be increased fifty percent on account of the employer's failure to carry workers' compensation insurance. We disagree with the respondent.
Initially, we reject the respondent's contention that the claimant's Brief in Support of the Petition to Review was untimely filed and thus, should be stricken. The briefing schedule was established in a letter dated September 16, 1998. Although both parties filed petitions for review, the briefing scheduled directed the respondent to file an opening brief within the following twenty days. The respondent did not file an opening brief. Instead, on October 6, 1998, the respondent withdrew his petition to review. Within twenty days of the date the respondent's appeal was withdrawn, the claimant filed a Brief in Support of the Petition to Review. Under these circumstances, we consider the claimant's brief timely filed. Cf. Converse v. Zinke, 635 P.2d 882 (Colo.App. 1981) (where district court judge erroneously misled the parties regarding the time provided for filing post-trial motions, the untimely filing of a motion did not deprive the court of jurisdiction).
In any case, the sole issue on review is whether the claimant's temporary total disability award should be increased pursuant to § 8-43-408(1). The claimant's March 19, 1998, Petition to Review expressly asserted that the increase is compelled by Merchants Oil, Inc., v. Anderson, supra. Consequently, the claimant's appellate argument is clear even without consideration of his supporting brief.
Section 8-43-408(1) is designed to encourage cooperation with the mandatory insurance requirements of the Act and provide additional compensation above the amounts already provided where the employer fails to carry insurance. Eachus v. Cooper, 738 P.2d 383 (Colo.App. 1986). In Merchants Oil Inc., v. Anderson, supra, the court concluded that statutory limitations on permanent partial disability benefits do not preclude a fifty percent increase of permanent partial disability benefits where the employer has failed to obtain workers' compensation insurance.
The facts in Merchants Oil involved a claimant who suffered a 21 percent working unit disability which entitled him to permanent partial disability benefits of $37, 560, the maximum amount allowed under former § 8-42-110 C.R.S. (1990 Cum. Supp.). Because the employer did not comply with the mandatory insurance requirements of the Act, the court held that the ALJ properly increased the claimant's permanent partial disability award to $56,340.
Moreover, in Merchants Oil the court expressly rejected an argument that former § 8-42-110 and § 8-43-408(1) are irreconcilable. Applying the principles of statutory construction, the court held that implicit in the plain language of § 8-43-408(1) is the "recognition that there are statutory limitations on various types of workers' compensation," including temporary total disability benefits. The court concluded that § 8-43-408(1) is a provision for " additional compensation, above the amounts already provided" by the Act. Merchants Oil Inc. v. Anderson, 897 P.2d at 896 (emphasis in original). Accordingly, the court found no irreconcilable conflict between the statutes. Rather, the court concluded that former § 8-42-110(1) limited permanent partial disability benefits where the employer has complied with the mandatory insurance requirements of the Act and § 8-43-408(1) establishes the benefit limit where the employer has not complied with the mandatory insurance requirements. Merchants Oil Inc. v. Anderson, 897 P.2d at 896.
We are persuaded by the court's reasoning in Merchants' Oil Inc. v. Anderson, supra, that § 8-43-408(1) and § 8-42-105(1) are not irreconcilable. Rather § 8-42-105(1) limits the temporary total disability compensation rate where the employer has complied with the mandatory insurance requirements of the Act and § 8-43-408(1) establishes the temporary total disability compensation rate where the employer is uninsured. Thus, the statutes can be harmoniously construed.
Furthermore, we know of no rational basis to treat temporary disability benefits differently from permanent partial disability benefits for purposes of § 8-43-408(1), and the respondent does not suggest any basis for a distinction. In fact, creating a distinction would defeat the legislative intent of § 8-43-408(1) in cases where the claimant suffers no permanent impairment. Therefore, we conclude that the fifty percent compensation increase provided by § 8-43-408(1) is applicable even if the claimant's temporary total disability rate is the maximum rate allowed by § 8-42-105(1). It follows that the ALJ erred in failing to grant a fifty percent increase of temporary total disability benefits under § 8-43-408(1), and we modify the ALJ's order accordingly.
IT IS THEREFORE ORDERED that the ALJ's order dated May 14, 1998, is modified to provide that all temporary total disability benefits due and owing on account of the claimant's injury shall be paid at the rate $702.66 per week.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean ______________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed April 16, 1999 to the following parties:
John Cavallo, 9122 West Nichols Dr., Littleton, CO 80123
Todd Aurit d/b/a T L Transportation Inc., 46248 Needle Leaf Lane, Parker, CO 80134
Greg S. Russi, Esq., 1777 S. Harrison St. #906, Denver, CO 80210 (For Claimant)
John W. McKendree, Esq. Elizabeth McKendree, Esq., 1244 Grant St., Denver, CO 80203 (For Respondent)
BY: AP