Summary
In Soppe v. City of Colorado Springs, W.C. No. 4-130-885 (February 28, 1997) [copy in record], a panel of the Industrial Claim Appeals Office determined that the statutory phrase "has not charged" is "unambiguous, and means that no charge has been made."
Summary of this case from In re Barnhill, W.C. NoOpinion
W.C. No. 4-130-885
February 28, 1997
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Wells (ALJ) which awarded temporary disability benefits. The respondent contends that the ALJ erroneously failed to allow a credit against the respondent's liability for temporary disability benefits, as provided by § 8-42-124, C.R.S. (1996 Cum. Supp.). We disagree, and therefore, affirm.
In pertinent part, § 8-42-124(2) provides:
"[A]ny employer who is subject to the provisions of articles 40 to 47 of this title and who, by separate agreement, working agreement, contract of hire, or any other procedure, continues to pay a sum in excess of the temporary total disability benefits prescribed by articles 40 to 47 of this title to any employee temporarily disabled as a result of any injury arising out of and in the course of such employee's employment and has not charged the employee with any earned vacation leave, sick leave, or other similar benefits shall be reimbursed if insured by an insurance carrier or shall take credit if self-insured to the extent of all moneys that such employee may be eligible to receive as compensation or benefits for temporary partial or temporary total disability under the provisions of said articles, subject to the approval of the director."
Further, § 8-42-124(8) requires that if the employer seeks an assignment of the temporary disability benefits which are otherwise due the claimant, the employer "shall notify the employee of said request at the same time the employer makes the request of the director or insurance carrier or both."
Here, the claimant suffered compensable injuries in March and April 1992, for which he underwent surgical treatment. As a result of the surgery, the claimant was off work between March 28, 1992 and June 10, 1992. The respondent denied liability for the surgery and the resulting lost time from work. Although the ALJ determined in April 1995 that the surgery and time loss were compensable, the claimant had previously applied for and received his regular wages under the respondent-employer's wage continuation plan. The wages were charged against the claimant's accrued sick leave, and were treated as "ordinary income," for which the claimant paid income tax.
Subsequent to April 1995 the respondent filed a Final Admission Liability for temporary total disability benefits. The Admission stated that the temporary disability benefits were "SUBJECT TO 8-42-124." The respondent also issued a memo directing its payroll department to reinstate the sick leave which had been charged to the claimant.
The ALJ found that the respondent failed to comply the requirements of § 8-42-124 because the respondent had charged the claimant's accrued sick leave. The ALJ further found that the alleged reinstatement of leave was insufficient to satisfy the statute because the respondent failed to provide the claimant with an amended W-2 form so as to make the claimant "whole in regard to tax liability for the income" he received as sick pay in 1992. The ALJ also determined that the respondent did not file a notice which conformed to the requirements of § 8-42-124(8). Consequently, the ALJ ordered the respondent to pay temporary disability benefits in accordance with the Final Admission of Liability, and without taking a credit for the wage continuation payments.
On review, the respondent concedes that the wage continuation payments were initially charged to the claimant's accrued sick leave. However, the respondent contends that it complied with the statute by subsequently reinstating the claimant's accrued sick leave. We disagree.
We conclude that, under these circumstances, the statute does not contemplate compliance by way of a retroactive reinstatement of sick leave. Our conclusion is premised upon the principles of statutory construction which require that statutes be construed in a manner that gives effect to the legislative intent. Public Service Co. v. Johnson, 789 P.2d 487 (Colo.App. 1990). To discern the legislative intent, we must first look to the language of the statute and construe words and phrases according to their plain and ordinary meanings unless the result is absurd. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993); Spanish Peaks Mental Health Center v. Huffaker, 928 P.2d 741 (Colo.App. 1996), cert. denied December 9, 1996; Gianetto Oil Company v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0833, December 27, 1996). Further, where the meaning of the words and phrases is clear and unambiguous, we need not resort to other interpretative rules of statutory construction. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Examination of the plain language of § 8-42-124(2) reveals that a self-insured employer is only permitted to take a credit against its liability for temporary disability benefits if the employer pays the claimant a sum in excess of the claimant's temporary disability rate and "has not charged the employee with any earned vacation leave, sick leave, or other similar benefits." The phrase "has not charged" is unambiguous, and means that no charge has been made. Here, it is undisputed that the respondent initially charged the claimant with sick leave. We therefore agree with the ALJ that the respondent failed to meet the requirements for taking a credit.
We reject the respondent's contention that its reinstatement of the claimant's sick leave was consistent with requirements of subsection 8-42-124(4). That subsection merely provides that where a employer who initially complies with § 8-42-124(2), subsequently ceases paying the claimant a sum in excess of the amount he would otherwise be entitled to receive, the claimant's right to receive the statutory temporary disability benefits is reinstated. Nothing in § 8-42-124(4) suggests that an employer can satisfy the requirements of § 8-42-124(2) by reinstating leave that was previously charged.
This conclusion is consistent with the court's holding in Public Service v. Johnson, supra. The Johnson court held that when read together, subsections 8-42-124(3) (4) provide that:
"an injured employee is entitled to compensation benefits and the employer may not claim a credit against such benefits, if the employer has charged the employee with any earned vacation leave, sick leave or other similar benefits."
Furthermore, the Johnson court stated that the predecessor statute reflects a legislative determination that "an injured employee should not be required to sacrifice earned benefits in order to obtain statutory mandated workmens' compensation benefits," because accrued vacation and sick leave pay are "benefits earned by virtue of past services rendered," which should not be impaired by a subsequent work-related injury. 789 P.2d at 489.
We are also persuaded that § 8-42-124(2) is to be strictly construed in view of the other issues raised in this case. For example, the ALJ determined that tax complications prevented the claimant from being made whole following the respondent's reinstatement of the used sick leave. We also note the claimant's assertion that the retroactive reinstatement of his sick leave had no effect because he had already accrued the maximum allowable sick leave prior to the respondent's offer to reinstate the used sick leave. A holding that the retroactive reinstatement of sick leave is sufficient to satisfy the statute, would inevitably require administrative determinations of whether the claimant has been made whole under countless factual complications that would arise with reinstatement. This would be inconsistent with the legislative declaration that the Workers' Compensation Act "be interpreted so as to assure the quick and efficient delivery of . . . benefits to injured workers . . . without the necessity of any litigation." See § 8-40-102(1), C.R.S. (1996 Cum. Supp.). In this respect, we believe that if the General Assembly had intended the determinative issue be whether the claimant has been made whole, it would have said so.
As a result of this conclusion, we need not determine whether the ALJ erred in finding that the respondent did not comply with subsections 8-42-124(4) (8).
IT IS THEREFORE ORDERED that the ALJ's order dated June 10, 1996, 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. (1996 Cum. Supp.).
Copies of this decision were mailed February 28, 1997 to the following parties:
Kriss R. Soppe, 3630 Point of the Rocks Dr., Colorado Springs, CO 80918
City of Colorado Springs, 701 N. Circle Dr., Colorado Springs, CO 80909-5121
Andrew Martinez, City of Colorado Springs, P.O. Box 1575, Colorado Springs, CO 80901-1575
Carol A. Finley, Esq., 111 S. Tejon St., Ste. 700, Colorado Springs, CO 80903 (For the Respondents)
Steven U. Mullens, Esq., P.O. Box 2940, Colorado springs, CO 80901-2940 (For the Claimant)
BY: _______________________