Opinion
W.C. No. 4-779-033.
March 16, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated August 11, 2009 that denied the claimant's request to increase her average weekly wage by the amount it would cost to continue coverage following her termination from employment. We affirm.
A hearing was held on the issue of whether the claimant's average weekly wage should be increased by the cost of continuing her health insurance under the Consolidated Omnibus Budget Reconciliation Act (COBRA). Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a work-related injury and after her employment was terminated she received a notice that she was eligible to continue her health care coverage under COBRA. The cost to the claimant of that continued coverage was $302.19 per week. The claimant applied for medical care for herself and her family through Medicaid, and her application was accepted. The claimant did not pay for Medicaid coverage. The ALJ found that the claimant's health insurance provided by the employer expired on January 31, 2009, and that the effective date of her Medicaid coverage was February 1, 2009. The ALJ further found that Medicaid provides "government-funded medical care that is effectively a substitute for health insurance coverage for indigent and low-income individuals and their families." Findings of Fact, Conclusions of Law, and Order at 2, ¶ 5. The ALJ found that the claimant's Medicaid coverage provided to her and her family health benefits that were similar to or lesser than the employer-provided health insurance.
Based upon her findings the ALJ concluded that the claimant's average weekly wage should not be increased by the amount it would have cost to maintain her employer-funded health care coverage. The ALJ therefore denied the claimant's request to increase her average weekly wage.
The claimant appealed and argues that the ALJ erred in denying her request to increase the average weekly wage. Specifically, the claimant argues that the ALJ erred in finding that Medicaid is a "similar or lesser plan" within the meaning of § 8-40-201(19), C.R.S. 2009. We are unpersuaded.
Section 8-40-201(19)(b) 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, and gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns and the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but shall not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of such health insurance coverage, such advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make such payment.
Despite the claimant's argument, we consider this case similar to Schelly v. Industrial Claim Appeals Office, 961 P.2d 547 (Colo. App. 1997). In Schelly the court of appeals held that the cost of Medicare insurance benefits should be included in a claimant's average weekly wage once the continuation of the employer's group health insurance plan terminated. The claimant continued her employer-provided insurance under COBRA for a period of time, after which the continuation period expired and she lost coverage. The claimant elected not to purchase individual coverage after the expiration of the COBRA continuation period; however, she became entitled to coverage under Medicare, which required a premium payment from the claimant. As with the instant case, the claimant in Schelly contended that her average weekly wage, even after she obtained Medicare coverage, should include the cost of the employer-paid health care provided during her employment. The court rejected the claimant's argument, holding that § 8-40-201(19)(b) unambiguously provides that once the continuation of the employer's health plan terminates, "the employee's cost of conversion to a similar or lesser insurance plan" is included in the average weekly wage. In reaching this conclusion, the court noted that if the legislature had wished to include in the average weekly wage the amount the employer paid for health insurance at the time of the injury, it would not have needed to amend the statute in 1989 to include the cost of conversion.
The court stated in Schelly that because "[t]here is no provision excluding Medicare from the phrase `similar or lesser plan'" it would not read such a provision into the statute. Schelly, 961 P.2d at 549. The court therefore held that the cost of the claimant's conversion to Medicare was properly included in her average weekly wage, rather than the cost to the employer of the claimant's health coverage at the time of the injury.
We believe that similar reasoning is applicable here, and we reject the claimant's argument that Medicare and Medicaid are so different in character that Medicaid cannot be considered a "similar or lesser insurance plan," within the meaning of the statute. As previously noted, the ALJ found that the Medicaid program provided a "substitute" for health insurance coverage, and that her coverage under that program provided medical care similar to or lesser than the care under the employer's health insurance plan. We note that the claimant's testimony was undisputed that medical treatment for her, her husband, and her son was being provided by Medicaid, and that she "never lost health insurance coverage" between the time she was employed and the time of the hearing. Tr. at 13.
In reviewing the ALJ's order, we are bound by her factual findings if they are supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo. App. 1995).
However, we review statutory construction questions, such as the proper interpretation of § 8-40-201(19)(b), de novo. People v. Cross, 127 P.3d 71, 73 (Colo. 2006). The purpose of statutory interpretation is to effect the legislative intent. Because the General Assembly is presumed to have intended what it plainly said, 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); Humane Society of the Pikes Peal Region, 26 P.3d 546 (Colo. App. 2001). In the absence of a special statutory definition, a word should be given its dictionary definition. White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo. App. 2000). In construing the Workers' Compensation Act, we should not adopt an interpretation that renders words superfluous, or injects additional terms that contravene the legislature's intent. Lobato v. Industrial Claim Appeals Office, 105 P.3d 220 (Colo. 2006).
Here, in our view, Medicaid is a program that comes within the terms of § 8-40-201(19) as a "similar or lesser insurance plan." Although we have not located an opinion or other authority that has directly addressed the issue presented here, we note that one court has stated that "aside from basing eligibility on need, the benefits provided under the Medicaid program are similar to those provided under Medicare and private health insurance plans." Archer v. Commissioner of Internal Revenue, 73 T.C. 963 (U.S.Tax Ct. 1980) (third party payments made under Medicaid are treated identically to payments made by private insurance and by Medicare for purposes of support computations). The Medicaid program has been described by the United States District Court: "Created by Congress in 1965, Medicaid is a complex, reticulated federal welfare program jointly funded by Congress and participating states providing medical assistance to the poor, the disabled, and other needy individuals. 42 U.S.C. § 1396." Soskin v. Reinertson, 257 F.Supp.2d 1320 (D.C.Colo. 2003) aff d in part, reversed in part Soskin v. Reinertson, 353 F.3d 1242 (10th Cir. 2004). See also Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366 (1977) ("Title XIX establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons."). Courts have referred to the Medicaid program as a form of "insurance," often in conjunction with discussions of Medicare or other public insurance plans. E.g., United States v. Fairlane Memorial Convalescent Homes, Inc., 501 F.Supp. 863 (E.D. Mich. 1980) ("The Medicare/Medicaid Program is a federally funded health insurance plan . . ."); In re Zyprexa Products Liability Litigation, 253 F.R.D. 69, 149 (E.D.N.Y. 2008) ("Sixty-four percent of Medicare recipients had prescription drug coverage through either a commercial or public insurance plan (e.g., Medicaid)"); United States v. Jaramillo, 98 F.3d 591 (10th Cir. 1996) ("Medicare, Medicaid, and CHAMPUS are federally funded health insurance programs.").
Although there are certainly differences between the programs, in our view the Medicare and Medicaid programs are sufficiently similar that under Schelly the latter is a "similar or lesser insurance plan" within the meaning of § 8-40-201(19). Accordingly, we perceive no error in the ALJ's order refusing to include in the claimant's average weekly wage the cost of continuing the employer's health insurance under COBRA. Because it is undisputed that the claimant's Medicaid coverage was provided at no cost to her, the ALJ did not err in refusing to increase her average weekly wage.
Finally, in our view, our reliance upon Schelly in resolving this issue is consistent with the Colorado Supreme Court's opinion in Industrial Claim Appeals Office v. Ray, 145 P.3d 661 (Colo. 2006). In Ray the court held that the definition of wages in § 8-40-201(19) did not require an injured worker to actually purchase health insurance coverage under COBRA in order for the conversion cost to be included in the average weekly wage. However, the court discussed Schelly in some detail and we perceive nothing in the court's discussion overruling the holding in that case, or even disapproving of it. Indeed, as we read Ray, the supreme court approved of its reasoning, stating that the language of § 8-40-201(19) includes both those who purchase coverage and those who do not: "The `cost' of `continuing' health insurance is a broad phrase encompassing both the price of actually purchasing health insurance and the price of what it would cost the employee to purchase health insurance." Ray, 145 P.3d at 668. The court then reasoned that "the `cost' of `continuing' health insurance necessarily means the actual payment of health insurance." Id. The court pointed out that a claimant could "`convert' to another form of health care benefits such as Medicare, for example, without actually purchasing `continuing' coverage as defined by COBRA." Id. Therefore the court concluded that the term "conversion" was not limited by the state version of COBRA to the employer-provided health insurance. If it were, the court noted, the costs of converting to Medicare or even coverage purchased from a different insurer would be excluded. The court concluded that the legislature did not intend such an "arbitrary, unfair" result. We infer from this that Medicaid is another form of health insurance coverage to which an injured worker may "convert."
In any event, as we read Ray, the court approved of the holding in Schelly that the cost of conversion to Medicare was properly included in the claimant's average weekly wage, rather than the cost of the employer-provided health insurance. Since we have concluded that Medicaid qualifies as a "similar or lesser insurance plan" within the meaning of § 8-40-201(19), we affirm the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated August 11, 2009, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Examiner Baird dissents:
As noted by our supreme court, "the `average weekly wage' is the key part of the formula used to calculate compensation for injured workers, and it is based upon the definition of `wages' provided at section 8-40-201(19)." Industrial Claim Appeals Office v. Ray, 145 P.3d 661, 664. Section 8-40-201(19)(b), C.R.S. 2009 includes as wages the employee's cost of converting "to a similar or lesser insurance plan." What constitutes an insurance plan under § 8-40-201(19)(b), C.R.S. 2009 is open to interpretation. However, an injured worker's compensation remains grounded in the contractual aspects of the employment relationship and the calculation of the average weekly wage reflects the parties' understanding as to the terms and conditions of that relationship. See, e.g., Avalanche Industries, Inc. v. Clark, 198 P.3d 589, 592 (Colo. 2008) ("The [average weekly wage] has been the basis for computing benefits since the enactment of the workers' compensation statute in 1919.")
An injured employee's average weekly wage may include the continuation cost for the employer's group health insurance plan "for the duration of the statutory benefit period . . . or until the employee actually purchases a `similar or lesser insurance plan' . . . whichever first occurs." Sears Roebuck Co. v. Industrial Claim Appeals Office, 140 P.3d 336, 339 (Colo. App. 2006). Here, the claimant was not found to have obtained health coverage through either a private insurance plan or Medicare. See Schelly v. Industrial Claim Appeals Office, supra. (adjusting average weekly wage due to claimant's enrollment in Medicare health insurance program); Powell v. Brody, 130 Colo. App. 406, 414, 496 P.2d 328, 333 (1972) ("Payments made for Medicare coverage are analogous to insurance payments.") Instead, the claimant qualified for benefits through Medicaid.
I would not construe Medicaid to be a "similar or lesser insurance plan" under § 8-40-201(19)(b). Medicaid pays for health care services provided to needy individuals, whereas Medicare (found in Schelly to be a plan covered by that statute), provides insurance benefits by making payments to health care providers. Salas v. Grancare, Inc., 22 P.3d 568, 572 (Colo. App. 2001). Thus, the Medicaid program is grounded in the financial status of a recipient who lacks the means to purchase private or public health insurance: "The Medicaid program . . . `provides] federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons.'" Schweiker v. Gray Panthers, 453 U.S. 34, 36 (1981) (quoting Harris v. McRae, 448 U.S. 297, 301 (1980)). In other words, Medicare is a voluntary federal health insurance program while Medicaid is a need-based program that covers certain medical services provided to the indigent. I would therefore reverse the ALJ's decision and adjust the claimant's average weekly wage to reflect the employer-provided health insurance coverage.
OLIVIA WHALEN, LOUISVILLE, CO, (Claimant), EXEMPLA HEALTHCARE, INC., Attn: GOOD SAMARITAN MEDICAL CENTER, LAFAYETTE, CO, (Employer), THE ELLIOTT LAW OFFICES, Attn: MARK D. ELLIOTT, ESQ., ARVADA, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: BRAD J MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
SEDGWICK CMS, Attn: JASON HOUSTON, LEXINGTON, KY, (Other Party).