Opinion
W.C. No. 4-496-203
December 20, 2002
FINAL ORDER
The claimant and the respondents seek review of a Supplemental Order of Administrative Law Judge Coughlin (ALJ). The claimant challenges the exclusion of health insurance premiums from the average weekly wage (AWW). The respondents filed a general petition to review, but did not file a timely brief in support. We modify the order with respect to the AWW and otherwise affirm the order.
The ALJ initially entered an order on March 28, 2002, finding the claimant sustained a compensable injury and awarding various benefits. The respondents appealed, and on September 9, 2002, the ALJ entered a Supplemental Order again determining the claimant sustained a compensable injury, but modifying the findings and conclusions with respect to calculation of the AWW. The claimant then petitioned to review the Supplemental Order with respect to the AWW issue.
The respondents also filed a petition to review the Supplemental Order. The respondents' petition to review contains general allegations of error, and the assertion that the ALJ erred in admitting evidence over the respondents' objection. However, the respondents did not file a brief in support of the petition to review until approximately one week after the petition to review. Pursuant to the claimant's motion, the ALJ then entered an order striking the respondents' brief because it was not filed with the petition to review as required by § 8-43-301(6), C.R.S. 2002. See also, Rule of Procedure VII(E), 7 Code Colo. Reg. 1101-3 at 20.
I.
Because the respondents' petition to review the Supplemental Order is general in nature, and the respondents failed timely to file a brief, the effectiveness of our review is limited. Indeed, issues not specifically raised are considered to have been waived. See City and County of Denver, __ P.3d __ (Colo.App. No. 02CA0322, September 26, 2002).
We have reviewed the record and the ALJ's findings of fact. The findings are supported by substantial, albeit conflicting, evidence in the record. Consequently, we may not interfere with the findings of fact. Section 8-43-301(8), C.R.S. 2002.
Further, the findings support the award. The ALJ properly found the claimant sustained a compensable injury when she fell in the employer's parking lot. Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 544 P.2d 705 (1976). There was substantial evidence from which the ALJ could infer the claimant sustained a compensable aggravation of her preexisting conditions. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). The evidence, including the claimant's testimony, also supports the ALJ's inference that the injury resulted in temporary total and temporary partial disability. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997).
The evidence further supports the ALJ's finding that the respondents failed timely to designate an authorized medical provider at the time of the injury, and the right of selection passed to the claimant. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). Although the employer attempted a pre-designation of the provider, the ALJ found the designation was inadequate because the provider could not be easily located by resort to ordinary means. (Finding of Fact 3). The effectiveness of a pre-designation is a question of fact for the ALJ, and is dependent on the particular circumstances of the case. Eg. Tolman v. Federal Express Corp., v. W.C. No. 4-347-019 (January 13, 1999); Trujillo v. Oppenheimer Management Corp., W.C. No. 4-143-750 (August 9, 1993). Here, we perceive no error in the ALJ's findings or application of the law.
The respondents' petition to review asserts that error "was committed with the consideration of evidence admitted over respondents' objection." This statement is too broad to indicate the specific basis of the respondents' contention(s), especially in light of the numerous evidentiary objections contained in the transcript. Therefore, we do not consider it.
The argument that the ALJ improperly addressed the issue of "fault" for her termination from Belmar Medical Center is without merit. That issue would have presented an affirmative defense to the claim for temporary total disability benefits, but was not raised. Further, we do not understand the ALJ's order as addressing the "fault" issue with respect to termination from other employments. (Finding of Fact 13, Order paragraphs 2 and 3).
II.
The claimant seeks review of the Supplemental Order insofar as it excluded the value of group health insurance from the AWW. In this regard, the ALJ found the claimant "was able to purchase health insurance at group rates through" the employer. (Finding of Fact 15, emphasis added). However, the ALJ also found the employer deducted the entire monthly premium of $349.36 from the claimant's salary. Under these circumstances the ALJ concluded the employer did not "provide or subsidize health insurance," and the value of such insurance cannot be included in the AWW. We disagree.
Section 8-40-201(19)(b), C.R.S. 2002, provides that the term wages "shall include 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 Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001), the court interpreted the statute as requiring the AWW to include the employee's entire cost of continuation or conversion to another plan, not just the amount the employer contributed to the premium. The court reasoned that the plain meaning of the statute requires the AWW to include the employee's cost of continuing the "group health insurance," and to include the entire cost of conversion upon discontinuation, regardless of the employer's contribution. The court recognized a "potential windfall" to the claimant because the AWW would include the claimant's portion of the insurance premium, "an amount she was not recompensed for her services." However, the court relied on the express language of the statute noting that the purpose of the statute is to make funds available for health insurance, and that the claimant may lose the advantage of group rates when the employer stops insurance contributions. Id. at 549.
The ALJ's order notwithstanding, the statute does not require that the employer make any monetary contribution to the "group health insurance plan" in order for the statute to apply. As recognized in Humane Society, the fact that the employer is able to obtain a group insurance rate may itself represent a "fringe benefit" of employment not available to the general population. Hence, we agree with the claimant that the statute compels the inclusion of the value of the health insurance in the AWW.
We recognize there was evidence that the claimant intended to discontinue the health insurance coverage on March 1, 2001. However, the insurance was still in force on February 21, 2001, the date of the injury. It is the claimant's AWW on the date of injury which determines the claimant's wages. Section 8-40-201(19)(a), C.R.S. 2002; § 8-42-102(2), C.R.S. 2002. For this reason, Callahan v. Smith Brothers Electric, Inc., W.C. No. 4-384-715 (April 30, 2002), cited by the respondents, is distinguishable. In Callahan, the claimant discontinued the employer's group health insurance plan two moths before the injury.
Thus, we conclude the claimant's AWW must be increased by $80.62 per week ($349.36 per month x 12 months divided by 52 weeks). We understand the parties agreed that the value of conversion would be treated as the cost of the insurance itself, if the value of insurance is included in the AWW.
IT IS THEREFORE ORDERED that the ALJ's Supplemental Order dated September 9, 2002, is modified to include an additional $80.62 per week in the claimant's AWW.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 20, 2002 to the following parties:
Brenda J. McMullin, 4582 S. Dudley St., Littleton, CO 80123
Elizabeth Garfias, Belmar Medical Center, 8015 W. Alameda Ave., #30, Lakewood, CO 80226
Rhonda Norris, State Farm Fire Casualty Company, P. O. Box 266004, Littleton, CO 80163-6004
Elsa Martinez Tenreiro, Esq., 700 Broadway, #1101, Denver, CO 80203 (For Claimant)
Clyde E. Hook, Esq., Gary L. Fleming, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
By: A. Hurtado