Opinion
W.C. No. 4-387-461
May 6, 1999.
FINAL ORDER
The claimant seeks review of an order of former Administrative Law Judge Wells (ALJ) which awarded temporary partial disability benefits. We affirm.
The essential facts are undisputed. The claimant suffered a compensable injury on July 13, 1998. Based on salary and commissions, the claimant's average weekly wage at the time of the injury was $801.31. Following the injury, the claimant resumed his regular employment, but suffered reduced commission earnings due to the industrial injury. The commission earnings also varied from week to week.
Section 8-42-106, C.R.S. 1998, provides that:
"In case of temporary partial disability, the employee shall receive sixty-six and two-thirds percent of the difference between said employee's average weekly wage at the time of the injury and said employee's average weekly wage during the continuance of the temporary partial disability. . . ." (Emphasis added)
Expressly relying on § 8-42-102(3), C.R.S. 1998, the ALJ determined that the claimant's post-injury average weekly wage, and resulting compensation rate for temporary partial disability, is fairly calculated by adding the claimant's gross weekly earnings for four weeks and dividing that amount by four. The ALJ found that the claimant earned an average of $702.06 for the first four-week period after the injury. Therefore, the ALJ ordered the respondents to pay temporary partial disability benefits of $66.17 per week for those four weeks, and directed that the claimant's temporary partial disability compensation rate for each subsequent four-week period be similarly calculated.
On review, the claimant argues that § 8-42-102 does not apply to the calculation of his post-injury average weekly wage, and that the ALJ therefore erred in exercising the discretionary authority provided by § 8-42-102(3). The claimant further contends that even though the ALJ's calculation may be "fair," the 1991 amendments to § 8-42-106 were intended to eliminate the ALJ's consideration of "fairness" and require "mathematical precision" in calculating temporary partial disability benefits. The claimant also argues that the ALJ's calculation violates Rule of Procedure IV(E)(2), 7 Code Colo. Reg. 1101-7 at 5, which requires that temporary disability benefits to be paid every two weeks. We are not persuaded by these arguments.
The principles of statutory construction require that statutes be given their legislative intent. Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998). Where the legislative intent is not clear from the plain meaning of the words in the statute it is proper to consider the legislative history to determine the legislative intent. Baylog Inc., v. Industrial Claim Appeals Office, 923 P.2d 361 (Colo.App. 1996). Furthermore, where the General Assembly does not amend a statute following a judicial interpretation it must be presumed that General Assembly has endorsed the court's interpretation. City of LaMar v. Koehn, 968 P.2d 164 (Colo.App. 1998); Dependable Cleaners v. Vasquez, 83 P.2d 583 (Colo.App. 1994).
Former § 8-53-103, C.R.S. (1986 Repl. Vol. 3B), provided that a claimant is entitled to temporary partial disability benefits equal to sixty-six and two-thirds percent of the "impairment of [the claimant's] earning capacity." In Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1078 (Colo.App. 1990), the court held that the claimant's actual post-injury earnings were not dispositive of the claimant's impaired earning capacity. Instead, the court held that the ALJ may consider a variety of factors in an attempt to achieve a "fair and equitable basis of comparison" between the claimant's pre-injury and post-injury earnings. See also State Compensation Insurance Fund v. Lyttle, 380 P.2d 62 (1963) ; University Park Holiday Inn v. Brien, 868 P.2d 1164 (Colo.App. 1994).
Former § 8-47-101 C.R.S. (1986 Repl. Vol. 3B) [currently § 8-42-102] provided various methods for determining "average weekly wage" at the time of the injury. Under subsection 8-47-101(4) the ALJ was afforded wide discretion to compute average weekly wage by "such other method" as would "fairly determine" the claimant's average weekly wage." In Elliott v. El Paso County, 860 P.2d 1363 (Colo. 1993), the court held that the ALJ may exercise the discretionary authority provided by former § 8-47-101(4) in calculating the claimant's post-injury earnings.
In 1991 the General Assembly amended § 8-53-103 by eliminating the term "impairment of earning capacity" and substituting a requirement that temporary partial disability benefits be based on the difference between the claimant's average weekly wage at the time of the injury and the claimant's "average weekly wage during the continuance" of temporary partial disability. See 1991 Colo. Sess. Laws, ch. 219 at 1304; Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, 870 P.2d 634 (Colo.App. 1994). However, the General Assembly did not explicitly establish a method for determining the claimant's post-injury "average weekly wage."
It is undisputed that the statutory provisions currently codified at § 8-42-102 are applicable to calculation of the average weekly wage "at the time of the injury." However, the predecessor statute contained similar language, and the court in Elliott v. El Paso County, supra, nevertheless held that the statute applied to the determination of the claimant's post-injury earnings for purposes of calculating temporary partial disability benefits.
The General Assembly amended § 8-42-102 at the same time § 8-42-106 was amended. 1991 Colo. Sess. Laws ch. 219 at 1304. However, the legislature did not explicitly create a distinction between the method for determining "average weekly wage" at the time of the injury and "average weekly wage" during the continuance of temporary partial disability. Neither did the legislature enact language inconsistent with the holding in Elliott. Under these circumstances, we are not persuaded that the General Assembly intended to preclude the ALJ from calculating the claimant's post-injury "average weekly wage" by the same methods applicable to calculating the claimant's pre-injury "average weekly wage." Therefore, we conclude the ALJ did not err in exercising the discretionary authority provided by § 8-42-102(3) in determining the claimant's post injury "average weekly wage."
In any event, the ALJ's determination is based on the claimant's actual weekly wages. Therefore, insofar as § 8-42-106 contemplates that the claimant's post-injury "average weekly wage" is based on the claimant's actual wages, the ALJ's order is not inconsistent with the statute.
Furthermore, the claimant does not dispute the wage figures used by the ALJ, and does not contend that his temporary partial disability award would be different if calculated weekly instead of every four weeks. In fact, using the undisputed gross wages for the first four-week period after the injury, the ALJ's award of temporary partial disability benefits is essentially identical to the total amount due if the benefit rate is calculated weekly. Therefore, the claimant has failed to demonstrate any prejudice from the ALJ's calculation of the amount of benefits. Cf. A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded)
Finally, insofar as the ALJ's order does not require the weekly payment of temporary partial disability benefits, the ALJ's order is consistent with the authority provided by § 8-42-105(2)(a), C.R.S. 1998, and does not violate the Rule of Procedure IV(E), 7 Code Colo. Reg. 1101-3 at 5. Rule IV(E)(2) provides that benefits for admitted liability are "due on the date of the admission and payable once every two weeks thereafter." However, this case involves an order awarding temporary partial disability benefits, not "admitted liability," and therefore, it is governed by Rule IV(E)(1). That rule provides that benefits awarded "are due on the date of the order" but does not specify the frequency of payment. Therefore, the ALJ's order is not inconsistent with Rule IV(E).
The claimant's remaining arguments do not persuade us there was any error in the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated December 10, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, 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. 1998.
Copies of this decision were mailed the following parties:
Gary M. Smith, 2114 Essex, Colorado Springs, CO 80909
A-Reliable Roofing, 3614 E. St. Vrain St., Colorado Springs, CO 80909
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Michele Stark Carey, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903
BY: le