Opinion
W.C. No. 4-680-008.
August 16, 2010.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Felter (ALJ) dated March 18, 2010, that granted an offset for the employer financed disability retirement pension but at an amount lower than sought by the employer. We affirm.
The claimant sustained an industrial injury on March 7, 2006. The respondent filed a Final Admission of Liability (FAL) dated November 21, 2007 admitting for permanent partial disability benefits based on a 27 percent whole person impairment. Based on the claimant's average weekly wage (AWW), she was entitled to the maximum statutory temporary total disability (TTD) and permanent partial disability (PPD) benefit rate of $697.20.
In the FAL the respondent admitted for TTD benefits at the maximum rate of $697.20. However, the claimant began receiving $336.18 per week from Fire and Police Pension Association (FPPA) on September 1, 2008. The respondent claimed an offset against PPD benefits. In its FAL the respondent admitted for PPD at a rate of $383.07 per week from March 13, 2007 through February 9, 2011 rather than at the maximum rate of $697.20.
At the hearing the respondent took the position that it was entitled to an offset for the amounts the claimant received as FPPA benefits. The respondent further contended that there had been an overpayment of PPD benefits. The ALJ agreed with the respondent that it was entitled to an offset for the FPPA benefits and that there had been an overpayment of PPD benefits. However, the ALJ calculated the offset at a lower amount than argued for by the respondent. Therefore the ALJ found an overpayment but at an amount less than that claimed by the respondent. The respondent brings this appeal, contending that the ALJ erred in his calculation of the overpayment and requesting that the overpayment be recalculated. The claimant did not appeal the ALJ's decision that the respondent was entitled to an offset for the FPPA benefits.
Preliminarily we note that the Workers' Compensation Act (Act) establishes a formula for calculating workers' compensation benefits that proceeds in two steps. See Benchmark/Elite, Inc. v. Simpson 232 P.3d 777 (Colo. 2010). The employee's average weekly wage serves as the basis for computing disability benefits. Section 8-42-102, C.R.S. After the employee's AWW is determined, the statutory limit on workers compensation benefits must be applied and then the rate of the claimant's benefits is calculated. The TTD rate is the lesser of either sixty-six and two-thirds percent of the employee's AWW or ninety-one percent of the state's average weekly wage ("State AWW"). Section 8-42-105 (awards for TTD benefits); § 8-47-106 (statute governing State AWW).
In analyzing the respondent's argument on appeal we first summarize the ALJ's calculation of the offset as follows. The claimant's admitted AWW entitled her to the maximum statutory rate of $697.20. The admitted TTD benefit rate was $697.20. The respondent's FAL admitted for a whole person PPD benefit at a rate of $383.07 per week from March 13, 2007 through February 9, 2011. The respondent's FFPA offset amount was $336.18 per week. The claimant's correct PPD benefit rate was $697.20 less the FFPA offset amount of $336.18 or a net amount of $361.02 per week. The claimant was actually paid $383.07 and thus was overpaid $22.05 per week ($387.07 — $361.02 = $22.05). From September 1, 2008 (the date the claimant was entitled to the FPPA benefits) to the date of the hearing on January 13, 2010 the claimant was overpaid $1,571.85. The ALJ noted the respondent had received a $1,295.04 discount for a four percent discount on the approved lump sum payment. The net overpayment between September 1, 2008 and January 13, 2010 was $276.81 ($1,571.85 — $1,295.04). We note that the respondent did not challenge the ALJ's use of the $1,295.04 discount on the lump sum to reduce the net overpayment amount.
In contrast to the overpayment of $276.81 found by the ALJ the respondent claims a net overpayment of $7,755.75 or $14,814.50. The respondent, citing § 8-42-103(1)(d) C.R.S., contends that the ALJ erred in his calculation of the offset. The respondent points specifically to that part of the ALJ's order containing the following language:
Based on Respondents' conceded FPPA offset amount of $336.18 per week, Claimant's net PPD benefits would have been $361.02 per week, after the FPPA offset, which is $22.05 per week less than the amount admitted in the FAL and paid to the claimant.
The respondent offers two alternative methods of calculating the offset. The respondent citing § 8-42-103(1)(d) C.R.S. argues that the weekly amount of PPD and disability retirement pension benefits must equal one hundred percent of the state average weekly wage applicable to the year in which the weekly disability benefits are being paid. In other words the respondent contends it is required to increase its payout rate of PPD so that the combined amount of PPD benefits and FPPA disability retirement benefits equals 100 percent of the state average weekly wage. The respondent premises its contention on the following specific provisions of the Act.
Section 8-42-103(1)(d)(I) provides:
In cases where it is determined that periodic disability benefits are payable to an employee under the provisions of a pension or disability plan financed in whole or in part by the employer, hereinafter called "employer pension or disability plan", the aggregate benefits payable for temporary total disability, temporary partial disability, permanent partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to such employer pension or disability plan benefits, with the following limitations:
Section 8-42-103(1)(d)(III) provides:
The provisions of this paragraph (d) shall apply to a disability pension paid pursuant to article 30.5 or 31 of title 31, C.R.S.; except that said reduction shall not reduce the combined weekly disability benefits below a sum equal to one hundred percent of the state average weekly wage as defined in section 8-47-106 and applicable to the year in which the weekly disability benefits are being paid.
The respondent contends that these provisions require that the weekly amount of PPD and disability retirement pension benefits equal one hundred percent of the state average weekly wage applicable to the year in which weekly disability benefits are being paid. The respondent contends these provisions require it to increase its weekly payout rate of PPD benefits so that the combined amount of PPD benefits and FPPA disability retirement benefits equals 100 percent of the state average weekly wage at the time the benefits are paid Because the claimant became eligible for her FPPA disability retirement as of September 1, 2008 the respondent argues that the State AWW of $863, that existed in 2008 must be used in calculating the offset rather than the State AWW of $766.15 that existed at the time of the March 7, 2006 accident.
The respondent argues that the offset should be calculated as follows. The $863.93 (State AWW at time of entitlement to FPPA) minus $338.16 (weekly offset for FPPA) equals $525.77 per week. Then from the $697.20 (maximum payout at time of injury) subtract the $525.77 which equals a weekly overpayment of $171.43. The $171.43 is then multiplied time 69.62 weeks for a total offset of $11,934. The 69.62 weeks represents the number of weeks necessary to pay out the remaining PPD under the FAL as of the time the claimant became eligible for the FPPA benefits. Using this method of calculation would indeed increase the offset. However, we are not persuaded that § 8-42-103(1)(d) mandates such a calculation.
In concluding that § 8-42-103(1)(d) does not require calculation of benefits as proposed by the respondent we note that in interpreting statutes, we must give effect to the legislature's intent, and if the statutory language is clear and unambiguous, we must give the words their ordinary meaning and apply the statute as written. See Cochran v. West Glenwood Springs Sanitation Dist, 223 P.3d 123, 125-26 (Colo. App. 2009). In doing so, we must read and consider the statute as a whole and interpret it in a manner giving consistent, harmonious, and sensible effect to all of its parts. Lujan v. Life Care Centers, 222 P.3d 970, 973 (Colo. App. 2009). We should not interpret the statute so as to render any part of it either meaningless or absurd. Id.
We first note that § 8-42-103(1)(d)(III) provides that the reduction of benefits for the disability pension shall not reduce the combined weekly disability benefits below a "sum equal to one hundred percent of the state average weekly wage as defined in section 8-47-106 and applicable to the year in which the weekly disability benefits are being paid." Section 8-47-106 deals with the method of computation of the state AWW. In Bellendir v. Kezer 648 P.2d 645 (Colo. 1982) the court in interpreting § 8-46-133, the predecessor to the present § 8-47-106, while acknowledging that the benefit ceiling continues to be raised over the years held that the benefit level continues to be determined by the employee's actual weekly wage at the "time of the accident."
In our view, the plain and ordinary meaning of the statute is that the applicable "state average weekly wage as defined in section 8-47-106" is the rate that is in effect on the date of the injury. Therefore, there is no need to consider the larger state AWW that was in place at the time the claimant received her FPPA.
Further we view this interpretation as giving consistent, harmonious, and sensible effect to all of its parts of the Workers' Compensation Act (Act). We note that a basic tenet of the Act is 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). "[A]verage 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). 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).
In our view a claimant is limited to the maximum rate in effect at the date of injury. That reasoning also applies to respondents who are limited for purposes of calculating an offset to the maximum benefit rate in effect on the date of the injury. This is consistent with our understanding of Benchmark/Elite, Inc. v. Simpson 232 P.3d 777 (Colo. 2010). We read Benchmark as providing that a claimant is limited to the maximum benefit rate that is in effect on the date of the injury. See Simpson v. Benchmark/Elite, W.C. No. 4-467-097 (August 08, 2007) rev'd Simpson v. Indus. Claim Appeals Office, 219 P.3d 354 (Colo.App. 2009); See Bennett v. City of Colorado Spring W.C. No. 4-295-688 (October 01, 2008) rev'd Bennett v. Indus. Claim Appeals Office, No. 08CA2179(Colo. App. Aug. 13, 2009) (not selected for official publication); see also Bobbett v. Kmart, W. C. No. 4-309-712 (October 12, 2005); Pubanz v. State of Colorado, W.C. No. 3070168 (September 9, 1997).
Moreover, we note that although the respondent contends that the offset must be increased because of the increase in the state AWW it does not appear that they propose a corresponding increase in the underlying total amount of the PPD owed to the claimant. We note by way of explanation that the calculation of a whole person award of PPD benefits is dependent upon the claimant temporary total disability rate, age factor and the medical impairment rating awarded. Sections 8-42-107(8)(d)(e); 8-42-107(8)(e). This determines the total amount payable for PPD benefits. Permanent medical impairment benefits are calculated as follows: Medical impairment rating x age factor x 400 weeks x TTD rate = PPD award.
Here, the respondent apparently contends that the claimant's PPD entitlement is fixed at $78,309.50 because it was based on the statutory maximum disability rate of $697.20, which was in effect at the time of the claimant's industrial injury. However, although its proposal may accelerate the timetable for payment of the total amount due for PPD benefits it does not increase the total amount of PPD due. The respondent's proposed calculation takes the amount of PPD which remained due at the time the claimant received her FPPA which it asserts was $48,539.99 and then divides this amount by $697.20 (the statutory max at time of injury). This yields a figure of 69.62 weeks of benefits owed. Thus, the respondent's method first fixes the underlying PPD amount owed, at the lower statutory maximum available at the time of the injury. The respondent then increases the amount of the offset available by utilizing the larger statutory maximum available at the time the claimant received her FPPA. We do not discern a legislative purpose to freeze the amount owed the claimant at the lower amount available at the time of the injury but at the same time allow the respondent to increase the offset against those benefits by a more generous amount owed based on the time the claimant begins to receive benefits from an employer sponsored disability plan. Therefore, we are not persuaded that the provisions of § 8-42-103(1)(d) require adjustment of the offset depending on State AWW in place at the time the claimant received her FPPA.
Finally even if the respondent's argument was accepted its proposed offset is based on what they maintain the actual PPD rate "should" have been (state AWW as of 9/1/2008 which was $863.93 minus the $338.16 FPPA benefit) not what was actually paid by it. An offset must be calculated on what was actually paid not on what "should" have been paid. We do note that the respondent now apparently argues that its calculation includes a type of reimbursement for an alleged underpayment by it of PPD in the amount of $4,178.25. However, such argument was not made at the hearing and was not clearly set forth in its post hearing position statement. In our view, the argument was not raised by the claimant before the ALJ. Therefore, we shall not consider the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994); Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987). We additionally note that the respondent does not suggest that the higher amount of PPD should be paid beyond the point where the offset is calculated.
IT IS THEREFORE ORDERED that the ALJ's order dated March 18, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
Curt Kriksciun
______________________________
Thomas Schrant
EMMA CHAMBERS, 3974 SOUTH QUEMOY COURT, AURORA, CO, (Claimant).
OFFICE OF THE CITY ATTORNEY — DENVER, Attn: CHRISTIAN M LIND, ESQ., DENVER, CO, (For Respondents).
CITY AND COUNTY OF DENVER, Attn: JACKIE RIDOUT, DENVER, CO, (Other Party).