Opinion
W.C. No. 4-265-495
October 24, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ), which required them to pay medical impairment benefits calculated at the maximum temporary total disability rate instead of the claimant's temporary total disability rate. We affirm.
The matter was submitted to the ALJ on stipulated facts. Specifically, the claimant suffered a compensable injury in 1995. At the time of the injury, the claimant was a minor. The claimant reached maximum medical improvement (MMI) on June 12, 1996, and sustained permanent medical impairment of 7 percent of the whole person under the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides).
Section 8-42-107(2), C.R.S. 1997, provides that where the claimant suffers impairment of the whole person, medical impairment benefits shall be determined under § 8-42-107(8), C.R.S. 1997. Under § 8-42-107(8)(d), permanent partial disability benefits for impairment of the whole person shall be calculated by multiplying the claimant's medical impairment rating by the relevant "age factor" listed in § 8-42-107(8)(e), and 400 weeks, and "shall be calculated at the temporary total disability rate specified in section 8-42-105."
The claimant's temporary total disability rate is $45.25. At the time of MMI the maximum temporary total disability rate was $451.22.
The respondents admitted liability for permanent partial disability benefits based upon 7 percent whole person impairment, calculated at the rate of $45.25 per week, and payable at the rate of $227.50 per week. The claimant objected and sought an award calculated at the rate of $451.22.
The ALJ determined that because the claimant was a minor at the time of the industrial injury, medical impairment benefits must be calculated in accordance with § 8-42-102(4), C.R.S. 1997. That statute provides that the permanent disability benefits awarded to a minor "shall be paid at the maximum rate of compensation payable" at the time of MMI. Consequently, the ALJ ordered the respondents to compute the claimant's medical impairment benefits at the rate of $451.22 per week.
On review, the respondents contend that the provisions of § 8-42-102(4) and § 8-42-107(8) are in direct conflict and cannot be harmonized. Noting that § 8-42-107(8) was enacted after § 8-42-102(4), the respondents argue that § 8-42-107(8) governs the claim.
The respondents further argue that the "age factors" set forth in § 8-42-107(8)(e) fulfill the legislative purpose of § 8-42-102(4). Therefore, the respondents contend that the claimant's medical impairment award should be calculated without regard to § 8-42-102(4).
Alternatively, the respondents assert that § 8-42-102(4) and § 8-42-107(8)(d) can be harmonized if § 8-42-102(4) is construed to refer to the weekly rate benefits are paid out and not the weekly rate used to compute the aggregate award. Accordingly, the respondents contend that the claimant is entitled to permanent partial disability benefits calculated at her temporary total disability rate, and paid out at the maximum rate allowed under § 8-42-107(8)(d), which is 50 percent of the state average weekly wage.
In Fluck v. Arkansas Valley Seeds Inc., W.C. No. 4-245-075, August 25, 1997, we rejected similar arguments by the respondent-insurer. As a result, we upheld an ALJ's order which required the respondent-insurer to calculate an injured minor's award of medical impairment benefits for the whole person at the maximum temporary total disability rate in effect on the date the injured minor reached MMI.
The respondents' arguments do not persuade us to depart from our reasoning in Fluck. Consequently, we adhere to our conclusions in Fluck.
Moreover, the circumstances presented here are essentially identical to the facts in Fluck. Accordingly, we perceive no basis to reach a contrary result here. Therefore, we reject the respondents' argument that the ALJ erred in requiring them to pay the claimant medical impairment benefits calculated at the rate of $451.22 per week.
As stated in Fluck, the primary goal of statutory construction is to construe statutes in a manner which furthers the legislative intent for which they were enacted. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). Where there is an apparent conflict between two statutory sections, we must attempt to harmonize the statutes in order to give effect to the legislative intent of both statutes. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996); DeJiacomo v. Industrial Claim Appeals Office, 817 P.2d 552 (Colo.App. 1991). Only where the statutes cannot be harmonized does the statute enacted last in time control. DeJiacomo v. Industrial Claim Appeals Office, supra.
Permanent partial disability benefits are intended to compensate a worker for a permanent loss of future earning capacity. Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996). However, the General Assembly recognized that minors generally earn less than adults, and that a minor's permanent disability extends over a longer working life than that of disabled adults. Williams v. Industrial Claim Appeals Office, 932 P.2d 869 (Colo.App. 1996). Therefore, the legislature enacted § 8-42-102(4) to address the disparity between minors and adults when the worker's permanent disability benefits are calculated from the average weekly wage. Williams v. Industrial Claim Appeals Office, supra; DeJiacomo v. Industrial Claim Appeals Office, supra. Section 8-42-102(4) reduces that disparity by requiring a minor's permanent disability benefits to be calculated at the maximum rate of compensation allowed by statute.
Prior to the enactment of § 8-42-107(8)(d), permanent partial disability benefits for non-scheduled injuries were calculated on a fixed rate of $120. The extent of disability was determined from a variety of factors, including the claimant's general physical condition, mental training, ability former employment and education. Section 8-42-110(1)(b), C.R.S. (1990 Cum. Supp.).
However, unlike the former scheme, or scheduled disability awards, medical impairment benefits under § 8-42-107(8)(d) are not calculated on a fixed rate. Instead, benefits are calculated at the claimant's temporary disability rate. Broadmoor Hotel v. Industrial Claim Appeals Office, supra. One of the primary purposes of § 8-42-107(8) is to reduce litigation concerning the nature and extent of permanent disability. Colorado AFL-CIO v. Donlon, supra. To accomplish this goal, the General Assembly substituted "medical impairment" for "industrial disability" as the basis for a permanent partial disability award. Further, permanent disability benefits are to be determined based upon the AMA Guides, the claimant's age, and pre-injury earnings.
The legislature did not abolish § 8-42-102(4) when it enacted § 8-42-107(8). Nor did the General Assembly limit the application of § 8-42-102(4) to injuries occurring prior to the effective date of § 8-42-107(8). See Williams v. Industrial Claim Appeals Office, supra. Therefore, we decline to presume that the legislature intended § 8-42-102(4) to be disregarded in the calculation of medical impairment benefits. Cf. Rauschenberger v. Radetsky, 745 P.2d 640 (Colo. 1987); Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994) (when General Assembly does not amend statute, it must be presumed that General Assembly has endorsed court's interpretation of statute).
Furthermore, § 8-42-107(8)(d) and § 8-42-102(4) may be construed in a manner to give effect to the legislative intent of both statutes. Section 8-42-107(8)(d) expressly provides that medical impairment benefits shall be calculated at the temporary total disability rate specified in § 8-42-105. Thus, the maximum rate payable for medical impairment benefits is the maximum rate of temporary total disability allowed by § 8-42-105. Section 8-42-105 provides that a claimant's temporary disability rate is sixty-six and two-thirds percent of the claimant's average weekly wage up to a maximum of ninety-one percent of the state average weekly wage.
It follows that in the case of a permanently disabled minor, § 8-42-102(4) requires medical impairment benefits to be calculated at the maximum rate of temporary total disability, or ninety-one percent of the state average weekly wage. This construction gives effect to the legislative intent of § 8-42-102(4), without increasing litigation on the amount of medical impairment benefits.
Moreover, the "age factors" listed in § 8-42-107(8)(e) apply across the spectrum to all injured workers over age 19. Therefore, as stated in Fluck, it could be reasonably argued that the General Assembly enacted § 8-42-107(8)(e) to ameliorate the disparate effect of lost earning capacity between injured workers of all ages, not merely between injured minors and adults. Under these circumstances, it is not inconsistent with the legislative intent of either § 8-42-102(4) or § 8-42-107(8) to read § 8-42-107(8)(d) as allowing the injured minor to the benefit of the higher end "age factor" list in § 8-42-107(8)(e), as well as the computation of benefits at the maximum temporary disability rate.
We also note that insofar as § 8-42-107(8)(d) states that benefits shall be paid at a rate "not more than fifty percent of the state average weekly wage," the limitation pertains to the rate medical impairment benefits are paid out, as opposed to calculation of the aggregate benefits. Conversely, the courts have consistently held that § 8-42-102(4) governs the "calculation" of a minor's permanent partial disability benefits, not the rate at which those benefits are paid. See Golden Animal Hospital v. Horton, supra; Torres v. Canam Industries, Inc., ___ P.2d ___ (Colo.App. No. 96CA1514, July 10, 1997) ; Williams v. Industrial Claim Appeals Office, supra; DeJiacomo v. Industrial Claim Appeals Office, supra; Mills v. Guido's, 800 P.2d 1370 (Colo.App. 1990). Consequently, we decline to read § 8-42-102(4) as requiring that medical impairment benefits to an injured minor shall be calculated at the minor's temporary disability rate, but paid at a rate equal to fifty percent of the state average wage.
IT IS THEREFORE ORDERED that the ALJ's order dated January 28, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Dona HalseyNOTICE 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. 1997.
Copies of this decision were mailed October 24, 1997 to the following parties:
Emilia D. Quiroz, 163 S. Knox Ct., Denver, CO 80219
Robert Symonds, R.G.S. Enterprises, Inc., 5989 S. Gilpin Ct., Littleton, CO 80121
Paul Finamore, Mid Century Insurance, P.O. Box 378230, Denver, CO 80237
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For the Claimant)
Michael A. Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: ________________________________________