Opinion
W. C. No. 4-631-629.
January 16, 2007
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated July 27, 2006 that denied the claimant's request to increase her average weekly wage by the amount of her health insurance premium. We affirm.
A hearing was held on the sole issue of whether the claimant's average weekly wage should be increased by the amount of her health insurance premiums. 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 compensable injury on October 2, 2004, and the insurer admitted liability for an average weekly wage of $580. On December 8, 2005 the claimant was placed on an unpaid leave of absence, without being terminated from her employment. Prior to that time she was covered by the employer's group health insurance plan. Both the claimant and the employer paid portions of the premium. During the leave of absence the claimant and the employer continued to pay the premium jointly, and the claimant's coverage under the plan continued. The claimant's monthly cost was $126.80 and the ALJ found that she was not put to any additional expense in order to continue the coverage.
Based upon his factual findings, the ALJ concluded that the claimant's cost of continuing coverage under the health insurance plan during the leave of absence should not be included in her average weekly wage. The claimant appealed the ALJ's order and argues that the ALJ erred and that the statute and applicable case law, including Industrial Claim Appeals Office v. Ray, 145 P.3d 661 (Colo. 2006) requires that the average weekly wage be adjusted by the amount of the claimant's weekly contribution for the premium. We disagree that the ALJ erred and therefore we affirm his order.
Section 8-42-102, C.R.S. 2006 provides that the average weekly wage of an injured employee shall form the basis for the computation of compensation. In calculating the applicable average weekly wage, § 8-40-201(19)(b), C.R.S. 2006 provides a definition of "wages" that states 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. . . .
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.
The issue presented to the ALJ in this case was whether a temporarily disabled claimant is entitled to an increase in her average weekly wage by the amount of her portion of the health insurance plan premium, where the employer continued to contribute the same amount as during the claimant's employment and continued to provide coverage contingent on the claimant's paying her portion. We agree with the ALJ that the Act does not provide for an increase in the average weekly wage under these circumstances.
We reached a similar conclusion, and the same result, in Salas v. NCR Corp., W.C. No. 4-166-217 (March 26, 1996). In Salas, the employer provided group health insurance and paid a portion of the premium. After the injury, the employer placed the claimant on long term disability but continued paying its portion of the health insurance premiums. Nevertheless, the ALJ held the AWW should include the employer's portion of the premium. However, citing the last sentence of § 8-40-201(19)(b), we stated that the "unambiguous effect" of the statute "is to exclude from the wage calculation the cost of health insurance if the employer continues to pay its share of the cost after the injury."
The basis of the holding in Salas is that the last sentence of the statute provides that an advantage or benefit "enumerated" in the statute is to be excluded from the average weekly wage if the employer continues to pay any of the advantage or fringe benefit, including the cost of health insurance. Because the legislature is presumed to mean what it said, we must give the term "any" its plain and ordinary meaning unless some absurdity results. Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo.App. 2002). The plain and ordinary meaning of the word "any"is "one, some, every, or all without specification." The American Heritage College Dictionary (Third Edition 1993). See White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000) (in absence of statutory definition word will be given its dictionary meaning). Thus, if the employer continues to pay "some" of the cost of the claimant's health insurance, health insurance is excluded from the average weekly wage calculation until the employer discontinues payment. We reached the same conclusion regarding that particular issue in Midboe v. State of Colorado, W.C. No. 4-495-463 (January 6, 2003), which was affirmed by the court of appeals in Midboe v. Industrial Claim Appeals Office, 88 P.3d 643 (Colo.App. 2003). We adhere to our conclusions reached in Salas and affirmed in Midboe regarding the particular question presented here.
We do not read the supreme court's opinion in Industrial Claim Appeals Office v. Ray as mandating a different result. We are mindful, of course, that the court in Ray overruled Midboe "to the extent that it is inconsistent with this opinion." Industrial Claim Appeals Office v. Ray, 145 P.3d at 669. However, in overruling Midboe the supreme court also noted that the court of appeals' analysis in that case was "dicta, unnecessary for its holding, and erroneous." Id., 145 P.3d at 667. The court clarified that:
The narrow issue in Midboe was simply whether the amount a claimant pays as his share of the premium for group health and dental insurance coverage must be included in the calculation of his average weekly wage when the employer continues to pay its share of the premium. Section 8-40-201(19)(b) expressly answers that question in the negative, and there was no need for the court of appeals to seek out alternate meanings of `continuing' or `conversion.'
Id. (emphasis in original). The court's holding in Ray was that § 8-40-201(19)(b) does not require claimants who lose their jobs to purchase continuing or converted health insurance under the Consolidated Omnibus Budget Reconciliation Act of 1985 in order for their average weekly wage to be increased by the cost of continued health insurance. However, that holding does not resolve the question presented here, which is whether the claimant's share of the premium for continued coverage is included in the average weekly wage when the employer continues to pay its share. As noted, the court in Ray expressly stated that the answer to that question is in the negative. Accordingly, we conclude that the ALJ did not err in refusing to increase the claimant's average weekly wage under the circumstances of this case.
IT IS THEREFORE ORDERED that the ALJ's order dated July 27, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Laura Plute.
American Home Assurance, c/o Sedgwick CMS, Benton Morely.
The Frickey Law Firm, Janet Frickey, Esq., (For Claimant)
Dworkin, Chambers Williams, P.C., David Dworkin (For Respondents).