Summary
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).
Summary of this case from In re Chambers v. City and Cty. of Den., W.C. NoOpinion
W.C. No. 3-070-168
September 9, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ), dated April 18, 1997. The claimant contends that the ALJ erred in refusing to award temporary disability benefits based upon the maximum temporary disability rate in effect on May 4, 1995. We disagree, and therefore, affirm.
Generally, temporary total disability benefits are paid at the rate of sixty-six and two-thirds percent of the injured worker's average weekly wage, subject to a maximum rate of ninety-one percent of the state average weekly wage, which is determined annually. The ALJ's order here was entered on stipulated facts. The claimant suffered a compensable injury on December 11, 1990. The respondent filed an admission of liability for temporary disability benefits based upon an average weekly wage of $569.41, entitling the claimant to temporary total disability benefits at the maximum weekly rate, which was $379.61 in December 1990. The claimant attained maximum medical improvement, but his condition subsequently worsened, and the respondent reinstated temporary disability benefits at the weekly rate of $379.61 commencing May 4, 1995.
Relying upon Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), the claimant requested that his temporary disability rate for benefits due after May 4, 1995, be based upon his higher earnings in May 1995. Therefore, the claimant requested a redetermination of his average weekly wage, which he contended would be $690.23. That amount results in a temporary disability benefit rate greater than the maximum rate in effect during the period July 1, 1994 to July 1, 1995, and therefore, the claimant argued that the respondent should pay all temporary disability benefits after May 4, 1995, at the higher maximum rate that was in effect on that date.
In rejecting the claimant's argument, the ALJ recognized that Campbell v. IBM Corp., supra, allows calculation of the temporary disability rate for a later period of disability based on the claimant's average weekly wage at the time of the later disability. However, the ALJ found that there is no statute or case law, including Campbell, which allows an ALJ to award temporary total disability benefits in excess of the maximum benefit rate that was in effect on the date of injury. Therefore, the ALJ determined that the claimant is limited to temporary total disability benefits at the maximum rate in effect in December 1990.
On appeal, the claimant reasserts the arguments he made before the ALJ. The claimant argues that because an ALJ may award benefits based upon the average weekly wage at the time of a subsequent disability, the ALJ may necessarily award benefits based upon the maximum benefit rate in effect at the time of the subsequent disability. We disagree.
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). Similarly, "average 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), C.R.S. (1996 Cum. Supp.). Furthermore, temporary total disability benefits are based upon the average weekly wage of the injured worker.
Nevertheless, under some circumstances, the ALJ may determine a claimant's temporary total disability rate based upon his average weekly wage on a date other than the date of injury. Section 8-42-102(3), C.R.S. (1996 Cum. Supp.); Campbell v. IBM Corp., supra. However, we agree with the ALJ that regardless of his discretion to calculate the pertinent average weekly wage, the ALJ has no discretion to award temporary disability benefits in excess of the maximum temporary disability rate in effect on the date of injury.
Moreover, nothing in Campbell compels a contrary conclusion. As the ALJ expressly recognized, Campbell concerns calculation of the pertinent average weekly wage, and does not address circumstances where the worker's average weekly wage results in a temporary disability benefit rate which exceeds the maximum rate in effect at the time of the injury. Therefore, we do not consider Campbell as supporting the claimant's contention that temporary disability benefits for a subsequent disability may be awarded based upon the maximum rate at the time of the subsequent disability.
The primary goal of statutory construction is to construe statutes in a manner which furthers the legislative intent for which they were enacted. Popke v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1782, August 14, 1997). To discern the legislative intent we must first examine the words of the statute, and if clear and unambiguous, the words must be given their plain and ordinary meaning. Ihnen v. Western Forge, 936 P.2d 634 (Colo.App. 1997). Furthermore, where a statute is part of an overall statutory scheme it must be construed to give consistent, harmonious, and sensible effect to all its parts. Monfort Transportation v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA2275, May 29, 1997).
Section 8-42-105(1), C.R.S. (1996 Cum. Supp.) [formerly § 8-42-105 C.R.S. (1990 Cum. Supp.)], provides that injured workers shall receive temporary total disability benefits equal to:
"sixty-six and two-thirds percent of said employee's average weekly wage so long as such disability is total, not to exceed a maximum of ninety-one percent of the state average weekly wage per week." (Emphasis added).
The term "exceed" is unambiguous. Webster's Seventh New Collegiate Dictionary (1963) defines the word "exceed" to mean "to be greater than" or "to go beyond a limit." Therefore, § 8-42-105 limits the claimant to temporary disability benefits at a rate not greater than ninety-one percent of the state average weekly wage.
Section 8-47-106 C.R.S. (1996 Cum. Supp.) [formerly § 8-47-106 C.R.S. (1990 Cum. Supp.], provides that the Director of the Division of Workers' Compensation (Director) shall annually establish the "state average weekly wage" which shall be applicable to "the ensuing twelve months beginning July 1." This statute is arguably ambiguous because it does not expressly indicate whether the "state average weekly wage" applies to benefits which are payable during the "ensuing twelve months" or injuries which occur during the "ensuing twelve months."
However, we are persuaded by the court's reasoning in Bellendir v. Kezer, 648 P.2d 645, 647 (Colo. 1982), that the state average weekly wage established on July 1 of the year is intended to be the basis for determining the maximum benefit rate for all injuries which occur during the following twelve months. Therefore, the ALJ did not err in refusing to award benefits for the claimant's 1990 injury at the maximum temporary disability rate in effect on May 4, 1995.
In Bellendir, the claimant challenged the constitutionality of the Colorado Workers' Compensation Act (Act) insofar as it failed to provide an escalation of permanent total disability benefit to keep pace with inflation. The facts in that case involved a claimant who was awarded permanent total disability benefits at a rate of $40.65 per week in connection with a 1963 injury. Former § 81-12-2, C.R.S. 1963, the law in effect on the claimant's date of injury entitled claimants to permanent total disability benefits equal to sixty-six and two-thirds percent of the average weekly wage of the injured employee, not to exceed a statutorily prescribed maximum of $43.75 per week. The statutory maximum thereafter increased with changes in the state average weekly wage. By June 1980 the maximum permanent total disability rate had increased to $244.65 per week. However, the claimant continued to receive benefits at the rate of $40.65 per week under former § 81-12-2.
In rejecting the claimant's constitutional challenge, the court expressly acknowledged the claimant's argument that the payment of lifetime benefits based upon a formula in effect on the date of injury may be unfair, and that "a more just system" could be formulated. However, the court concluded that:
"[T]o effectuate the Act's basic goals of speedy and reliable compensation of injured workers, the General Assembly has enacted a formula which calculates awards to an injured worker based on loss of earning power at the time of injury. [citation omitted] The formula allows all parties involved to determine with some degree of certainty the amount of compensation to which the worker is entitled. Not only does this certainty aid the parties in reaching prompt agreement on compensation issues, it also aids the state insurance compensation fund and other insurers in setting employer premiums." (Emphasis in original)
648 P.2d at 647. Therefore, the court concluded that the statutory formula for awarding permanent total disability benefits was rationally related to the furtherance of a legitimate state purpose.
Here, we conclude that if the term "ensuring twelve months" were construed to mean that the state average weekly wage established on July 1 determines the maximum rate for benefits which become due and payable during the following twelve months, a claimant's temporary disability rate would be subject to be change every year. This would lead to uncertainty with regard to the amount of compensation the claimant may receive, and the insurer's liability for disability benefits. Thus, this construction is inconsistent with the basic goals of the Act.
Furthermore, the substantive law at the time of the injury controls the claimant's entitlement to temporary disability benefits. It follows that for purposes of determining a claimant's temporary disability rate, the state average weekly wage at the time of the injury must control. In other words, §§ 8-42-105 and 8-47-106 are consistent and harmonious if § 8-47-106 is construed to mean that the state average weekly wage established on July 1 of the year applies to all injuries which occur during the"ensuing twelve months."
IT IS THEREFORE ORDERED that the ALJ's order dated April 18, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed September 9, 1997 to the following parties:
Jeffrey H. Pubanz, 1597 E. 10th St., Craig, CO 81625
Colorado State Dept. of Law, 110 16th St., Ste. 800, Denver, CO 80202-5210
Colorado Compensation Insurance Authority, Attn: Laurie Schoder, Esq. (Interagency Mail)
J. Keith Killian, Esq. Gregg VanDeMark, Esq., 225 N. Fifth St., Ste. 1010, P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
Eliot J. Wiener, Esq., 999 19th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________________