Opinion
W.C. No. 4-451-420.
June 27, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which granted the respondents' petition to modify benefits by excluding the cost of health insurance from the claimant's average weekly wage (AWW). We affirm.
The ALJ held that because the claimant failed to purchase COBRA health insurance following his termination from employment on May 1, 2002, § 8-40-201(19)(b), C.R.S. 2004, precludes the claimant from including the cost of health insurance in the AWW. The ALJ relied on the holding in Midboe v. Industrial Claim Appeals Office, 88 P.3d 643 (Colo.App. 2003), as authority for this ruling.
On review the claimant contends that the ALJ's ruling is contrary to the plain meaning of § 8-40-201(19)(b), that the ALJ improperly extended the holding in Midboe, and that the ALJ's interpretation is unfair to claimants who cannot afford to purchase COBRA insurance. However, as the respondents argue, we have previously considered and rejected each of these arguments in a series of cases decided since Midboe was announced.
Our order in Crider v. Speedy Hauling, Inc., W.C. No. 4-606-915 (October 12, 2004), contains a succinct statement of why, in our view, the ALJ correctly interpreted § 8-40-201(19)(b), and why that interpretation is compelled by the Midboe decision. The Crider case also explains why we conclude that Midboe is dispositive despite earlier contrary dictum contained in Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001). Nothing in the claimant's arguments persuades us to depart from the reasoning in Crider or any of the other similar cases decided since Midboe. (The respondents' brief contains a comprehensive summary of our decisions on this subject and we incorporate the summary by reference).
We have also rejected the policy argument concerning the prohibitive cost of health insurance to injured workers. We have held that "this problem is a natural, and arguably unfortunate, consequence of the statutory scheme selected by the legislature to compromise competing arguments concerning the value of health insurance when calculating the AWW and we may not presume to substitute our judgment for theat of the General Assembly concerning matters of social policy reflected in lawfully enacted statutes." Carmody v. Quality Services Inc., W.C. No. 4-605-889 (December 3, 2004).
Finally, the claimant argues this interpretation of the statute is unconstitutional. However, we understand the Midboe decision to compel the result reached here, and we lack jurisdiction to declare the court's interpretation of a statute to be unconstitutional. Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995); Crider v. Speedy Heavy Hauling, Inc., supra. IT IS THEREFORE ORDERED that the ALJ's order dated November 10, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Daniel Rivera, Denver, CO, Douglas Roofing, Commerce City, CO, Judy McKimm, Transcontinental Insurance Company/CNA, Denver, CO, Janie C. Castaneda, Esq. and John W. Swanson, Esq., Denver, CO, (For Claimant).
D. Clay Thornton, Esq., Denver, CO, (For Respondents).