Opinion
W.C. No. 4-200-716.
August 5, 2008.
FINAL ORDER
The respondents seek review of a lump sum order of the Director of the Division of Workers' Compensation (Director) dated March 27, 2008, ordering the respondents to pay a lump sum in the amount of $60,000. We reverse and vacate the order.
The record transmitted to us by the Director reflects that on August 6, 2007, the claimant filed an application for a lump sum with the Director's office and shortly thereafter the respondents filed an Unopposed Motion to Extend Time to File a Lump Sum Calculation, which was granted by the Director. On September 12, 2007, the respondents filed an unopposed motion to hold the lump sum payment "in abeyance" until the resolution of the calculation of an overpayment that apparently existed in this matter, which was granted on September 25, 2007. On December 10, 2007, the parties executed a stipulation that the overpayment was $7,088.21, and on December 19, 2007, the Director entered an order approving that stipulation. On January 28, 2008, the claimant filed a motion with the Director for payment of a lump sum of $60,000, noting that the respondents had paid a lump sum of $37,560, but that the respondents asserted that the amendments to § 8-43-406 increasing the lump sum to $60,000 were not applicable to this case, given that the claimant's date of injury was prior to the statutory amendments raising the lump sum amount to $60,000. The respondents also filed a motion to recuse the Director from adjudicating the lump sum issue, which was opposed by the claimant and subsequently denied by the Director. On March 27, 2008, the Director then entered the order under review here, granting the claimant's request for a lump sum of $60,000 and ordering payment of that amount by the respondents.
The respondents appealed the Director's order and make three arguments in support of the appeal. First, they argue that the Director erred in concluding that the amendments to 38-43-406 were retroactive and that the lump sum of $60,000 applied to this case. Second, they argue that in any event the Director never had jurisdiction to grant or deny a lump sum in this case. Third, they argue that if the Director did have jurisdiction he should have recused himself. We conclude that the Director erred in ordering the respondents to pay a lump sum in the amount of $60,000. Because we reverse the Director's order on that basis, it is unnecessary for us to address the question of the Director's jurisdiction or whether he erred in not recusing himself.
We note that the procedural history surrounding this lump sum order is somewhat complicated by the fact that on April 15, 2008, a hearing was held before Administrative Law Judge Friend (ALJ) on issues relating to the lump sum payment. On December 20, 2007, the respondents filed an application for hearing with the Office of Administrative Courts (OAC) on the issues of the retroactivity of the amendments to 38-43-406, and whether the claimant is entitled to a lump sum payment greater that $37,560. The specific issues endorsed for hearing were whether the amendments to the lump sum statute, 38-43-406, C.R.S. 2007, are retroactive, whether the Director had jurisdiction to determine the amount of the lump sum, and whether the Director's order awarding the lump sum is final. Following the hearing the ALJ entered findings of fact that were based upon the stipulation of the parties regarding the facts, and that essentially summarized the procedural history of the case recited above. The ALJ also noted that the respondents moved for summary judgment on March 11, 2008, and that on March 27, 2008, the Director issued an order to the respondents requiring them to pay the requested $60,000 lump sum. A subsequent motion to reconsider was denied. ALJ Cain then entered an order denying the respondents' motion for summary judgment, concluding that the respondents were not entitled to judgment as a matter of law. ALJ Cain concluded that an issue of fact existed regarding whether the respondents invoked the jurisdiction of OAC before the Director asserted jurisdiction.
Based upon the stipulated facts, ALJ Friend ruled that "[t]he Director . . . has ruled in this matter" and that there was no provision in the law permitting an OAC ALJ to review and reverse an order of the Director. He concluded that jurisdiction to review the Director's order did not lie with OAC, but rather with the Industrial Claim Appeals Office. The ALJ also concluded that the proper lump sum payable in this case was $60,000, because the final admission was filed after the effective date of the amendments to 38-43-406. The order stated that "[i]t is therefore ordered that the Directors' (sic) determination of the lump sum to be paid is not set aside." Findings of Fact, Conclusions of Law, and Order at 6.
We note that the respondents also appealed ALJ Friend's order and we are adjudicating that appeal in a separate order. Because of our resolution in this matter, in which we reverse the Director's order to pay a lump sum of $60,000, we concluded in the other proceeding that the appeal of ALJ Friend's order is moot and we dismissed the petition to review his order.
Here, we conclude that the Director's order requiring payment of a lump sum of $60,000 is contrary to applicable law. Section 8-43-406(2) presently provides that "[t]he aggregate of all lump sums granted to a claimant who has been awarded compensation shall not exceed sixty thousand dollars." The statute was amended in 2007 to increase the maximum lump sum amount from $37,560 to the present $60,000. The issue at bottom in this case is whether the amendments raising the lump sum amount apply here, where the claimant's injury admittedly occurred prior to the effective date of the legislative change. In his order awarding the larger amount, the Director stated that the payment of a lump sum is "only a disbursement of already awarded or admitted benefits." Thus, he reasoned that the lump sum order merely "modifies the disbursement" and does not increase any benefit.
However, in our view, the applicable case law compels us to reverse the Director's order. In Eight Thousand West v. Stewart, 37 Colo. App. 372, 546 P.2d 1281 (1976) the claimant was awarded permanent total disability benefits and subsequently submitted three successive requests for compensation in a lump sum. These requests were granted. In 1975, the claimant made an additional request for a lump sum payment, which would exceed the statutory limit for lump sum payments for permanent total disability in effect at the time of the injury. However, as here, the statute permitting lump sum payments had been amended since the claimant's injury to permit the larger amount. The court of appeals in Eight Thousand West rejected the claimant's argument that the larger lump sum was authorized in his case and that, essentially, the amendments to the statute should be given retroactive effect. The court held that, in the absence of a specific legislative directive, it would not give retrospective effect to an amendment so as to alter "civil liabilities already incurred." The factual circumstances presented and the legal dispute resolved by the court in Eight Thousand West were virtually identical to those of the present case. Therefore, in our view, there is no meaningful way to distinguish Eight Thousand West from the present case. And, of course, we are bound by the published decisions issued by the court of appeals.
As noted, § 8-43-406 was amended by Senate Bill 07-258, effective May 30, 2007, to increase the aggregate total of benefits received in lump sum to $60,000. Colo. Sess. Laws 2007, ch 341 at 1475, C.R.S. 2007. As apparently was the case in Eight Thousand West Senate Bill 07-258 does not contain any express legislative statement concerning the date of applicability, and the statute was amended without any express reference to the date of injury. The legislature is presumed to be aware of the judicial precedent in an area of law when it legislates in that area. See Vaughan v. McMinn 945 P.2d 404 (Colo. 1997); Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1054 (Colo. 1995). In addition, the legislature is presumed to adopt the construction which prior judicial decisions have placed on particular language, when such language is employed in subsequent legislation. See Vaughan v. McMinn supra; People v. Cooke, 150 Colo. 52, 62, 370 P.2d 896, 901 (1962). Therefore, the general assembly here was presumably aware of the court's interpretation in Eight Thousand West, that absent an express legislative provision, the repeal of a statute will not operate retroactively to modify vested rights or liabilities. See Section 2-4-202, C.R.S. 2007 (legislation presumed prospective). See also Taylor v. Public Employees' Retirement Association, 189 Colo. 486, 542 P.2d 383 (1975) (amendment to a statute is not retroactively applied if the amendment covers the same subject matter as the original statute and if the person claiming under the amendment had a continuing status under the original statute and the amendment); Kirby of Southeast Denver v. Industrial Commission, 732 P.2d 1232 (Colo.App. 1986) (amendment not given retroactive application unless a contrary result is clearly manifested). The General Assembly in 2007 chose to increase the aggregate total of benefits that could be received in a lump sum in the same manner that they had in 1971, preceding the decision in Eight Thousand West. Therefore, the Director's determination, which is contrary to the holding in Eight Thousand West, must be reversed and the order that the respondents pay additional amounts in a lump sum is set aside. Section 8-43-301(8), C.R.S. 2007.
As noted, because of our resolution of this issue, it is unnecessary for us to address the respondents' arguments that the Director lacked jurisdiction to order a lump sum payment and that, in any event, he should have recused himself in this particular case.
IT IS THEREFORE ORDERED that the Director's order dated March 27, 2008, is reversed and vacated.
INDUSTRIAL CLAIM APPEALS PANEL
_____ Curt Kriksciun
_____ Thomas Schrant
MITZIE M TADLOCK, ALBUQUERQUE, NM, (Claimant)
GOLD MINE CASINO, GOLDEN, CO, (Employer)
WESTERN GUARANTY FUND SERVICES, Attn: MICHAEL KRAMISH, 1720 S, BELLAIRE ST, DENVER, CO, (Insurer)
SULLIVAN SULLIVAN AND MCGUIRE PC, C/O: PETER H. MCGUIRE, ESQ., 1325 S, COLORADO BLVD, DENVER, CO, (For Claimant)
MCELROY, DEUTSCH, MULVANEY CARPENTER LLP, Attn: KRISTIN A. CARUSO, DENVER, CO, (For Respondents)
RELIANCE INSURANCE CO, Attn: CLAIRE BENNETT, ENGLEWOOD, CO, (Other Party)
DIRECTOR, Attn: BOB SUMMERS, C/O: DIVISION OF WORKERS' COMPENSATION, DENVER, CO, (Other Party 2)