Opinion
W.C. No. 4-527-450
July 3, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Klein (ALJ) which awarded temporary partial disability (TPD) benefits. The respondents contend the ALJ erred in awarding TPD benefits because the claimant's post-injury earnings exceeded ninety-one percent of the state average weekly wage (AWW), contrary to the plain meaning of § 8-42-106(1), C.R.S. 2002. We affirm.
The pertinent facts are undisputed. The claimant sustained a compensable injury on May 14, 2001. At the time of the injury the claimant's AWW was $973. During the period from May 15, 2001, to November 25, 2001, the claimant was restricted from performing his pre-injury duties. However, he performed modified employment within the restrictions. During this period, the claimant earned $691.35 per week. The ALJ ordered the payment of weekly TPD benefits based on sixty-six and two-thirds percent of the difference between the claimant's pre-injury and post-injury AWW ($973 — $691.35 = $281.65).
The respondents, citing on § 8-42-106(1), argued that because the claimant's post-injury AWW exceeded ninety-one percent of the state AWW ($652.50 at the time of claimant's injury), the claimant is not entitled to TPD benefits. The ALJ rejected this contention reasoning that under the plain meaning of the statutory language the "cap" on TPD benefits applies to the weekly amount of TPD benefits payable, not to the claimant's post-injury AWW.
On review, the respondents reiterate the contention that the plain language of the statutory benefit cap contained in § 8-42-106(1) prohibits the payment of TPD benefits if the claimant's post-injury AWW exceeds ninety-one percent of the state AWW, as it does in his case. In support of this contention the respondents argue that when the General Assembly amended the statute in 1991 by deleting a reference to impairment of "earning capacity," the General Assembly signaled "an intent of the legislature to limit the amount of TPD benefits a person should be eligible to receive, and this intent should be carried over to the application of the 91% limitation." (Respondents' Brief at 5). We reject these arguments.
Section 8-42-106(1) provides as follows:
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, not to exceed a maximum of ninety-one percent of the state average weekly wage per week.
When interpreting a statute we should strive to give effect to the legislative intent. The best indicator of legislative intent is the language of the statute itself. Hence, we must give the words and phrases in a statute their ordinary meanings unless such an interpretation effects an absurd result. Further, the General Assembly is presumed to intend a just and reasonable result. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
The respondents' assertion notwithstanding, the language of the statute does support their position. The plain language of the statute provides that if the claimant is temporarily partially disabled, the claimant "shall receive" as compensation sixty-six and two-thirds percent of the difference between the claimant's pre-injury and post-injury AWW. Price v. Petco Animal Supplies, W.C. No. 4-372-735 (November 22, 2000). As the ALJ held, the qualifying clause appearing at the end of the sentence operates to cap the amount which must be paid each week for TPD benefits, not as a bar to the receipt of any TPD if the post-injury AWW exceeds ninety-one percent of the state AWW. Indeed, if the General Assembly intended the result argued for by the respondents, it presumably would have provided that in no event is the claimant entitled to receive TPD benefits if the post-injury AWW exceeds ninety-one percent of the state AWW. See Freemyer v. Industrial Claim Appeals Office, 32 P.3d 564 (Colo.App. 2000) (if General Assembly intended a particular result it would have employed terminology clearly expressing that intent).
Neither do we find the respondents' proposed interpretation of the statute to be consistent with the legislative purpose of the Act or the 1991 amendments to § 8-42-106(1). Contrary to the respondents' argument, the purpose of all temporary disability benefits, including TPD benefits, is to compensate the claimant for wage loss during the healing period. In this sense the purpose of temporary disability benefits is to compensate for "lost earning capacity." Colorado AFL-CIO v. Donlon, 914 P.2d 396, 403-404 (Colo.App. 1995); Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989). Section 8-42-106(1) does not alter the theoretical underpinnings of temporary disability benefits. Rather, the statute establishes the prescribed method of calculating the amount of benefits to be paid for TPD. See Morgan v. Bear Coal Co., Inc., W.C. No. 3-105-057 (December 1, 1995).
Nothing in the 1991 amendments to § 8-42-106(1) alters this conclusion. In 1991 the General Assembly amended the statutory method of calculating TPD benefits by deleting the reference to "impairment" of the employee's "earning capacity" and substituting the current AWW formula. 1991 Colo. Sess. Laws, ch. 219 at 1306. As indicated by the court in Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, 870 P.2d 634, 636 (Colo.App. 1994), the amendment was intended to modify previous interpretations which held that, under the prior statute, TPD benefits should be calculated without regard to the claimant's actual post-injury earnings if certain factors, such as post-injury wage increases, made it fair to do so. Eg. University Park Holiday Inn v. Brien, 868 P.2d 1164 (Colo.App. 1994); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). The 1991 amendment requires the ALJ, when determining TPD benefits, to calculate the claimant's post-injury AWW based on actual earnings without regard to the claimant's theoretical "earning capacity." See Smith v. A-Reliable Roofing, W.C. No. 4-387-461 (May 6, 1999).
It follows that the 1991 amendment to the method of calculating TPD benefits may not be interpreted as reflecting an intent to alter the fundamental purpose for which TPD benefits are paid. Rather, the purpose of TPD benefits remains the compensation of temporary but partial loss of earning capacity caused by injury-related disability. Colorado AFL-CIO v. Donlon, supra. Consequently, the 1991 amendment does not reflect an unspoken legislative intent to enact a bar to the receipt of any TPD benefits if the claimant's post-injury AWW exceeds ninety-one percent of the state AWW. To the contrary, we view the respondents' argument as undermining the very purpose for which TPD benefits are paid.
Finally, we note that § 8-42-105(1), C.R.S. 2002, pertaining to the calculation of temporary total disability (TTD) benefits contains a provision limiting TTD benefits to sixty-six and two-thirds percent of the claimant's AWW, "not to exceed a maximum of ninety-one percent of the state average weekly wage per week." The respondents' interpretation of § 8-42-106(1) would appear to apply with equal force to § 8-42-105(1), thereby prohibiting awards of TTD benefits in cases where the claimant's pre-injury AWW exceeds ninety-one percent of the state AWW. Presumably, this would disqualify a large number of workers from receiving TTD benefits. We consider such an interpretation to be contrary to the statutory purposes of quickly and efficiently delivering disability benefits to injured workers, and providing a source of income to workers unable to earn wages during the healing period. Section 8-40-102(1), C.R.S. 2002; Lunsford v. Sawatsky, supra. Neither would it be reasonable to ascribe different meanings to the same language found in § 8-42-105(1) and § 8-42-106(1). See Armijo v. CF I Steel, L.P., W.C. No. 4-252-253 (May 27, 1998) (where claimant's AWW results in TTD rate exceeding ninety-one percent of state AWW, TTD benefits are payable at maximum rate of ninety-one percent of state AWW), aff'd. on other issues, Armijo v. Industrial Claim Appeals Office, 989 P.2d 198 (Colo.App. 1999).
IT IS THEREFORE ORDERED that the ALJ's order dated January 22, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ David Cain ___________________________________ Kathy E. Dean
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 3, 2003 to the following parties:
Don L. Yates, P. O. Box 566, North Platte, NE 69103
Shelly Horn, Lafarge Corporation, 1590 W. 12th Ave., Denver, CO 80204
John Shelonko, Lafarge Corporation, 12950 Worldgate Dr., Herndon, VA 20170
Pacific Employers Insurance Company, c/o Carrie Lashbrook, Cunningham Lindsey Claims Management, Inc., P. O. Box 15401, Phoenix, AZ 85060
Regina M. Walsh Adams, Esq., 7251 W. 20th St., #G-1, Greeley, CO 80634 (For Claimant)
Karen G. Treece, Esq., and Matthew C. Hailey, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: A. Hurtado