Opinion
W.C. No. 4-589-762.
April 3, 2009.
FINAL ORDER
The claimant seeks review of an order by the Director of the Division of Workers' Compensation (Director) dated October 24, 2008, that denied the claimant's request for a lump sum payment of $60,000 for an injury that pre-dated 2007 statutory amendments to § 8-43-406(2). We affirm.
The following facts do not appear to be in dispute. The claimant sustained an industrial injury on June 16, 2006 and was determined to be permanently totally disabled. The respondents made a lump sum payment of $37,560, the maximum allowed at the time by the provisions of § 8-43-406(2). The claimant later requested a lump sum payment of $60,000, the maximum allowed under the current version of § 8-43-406(2), which was amended after the date of the claimant's injury in 2007. The respondents objected to the lump sum request. In his order the Director set for the Division's position that since payment of a lump sum is a method to disburse benefits, but does not increase liability, the increase in the maximum lump sum amount should be applied to this claim. However, noting a prior Panel decision the Director, in order to avoid conflicting results, denied the claimant's request for a lump sum of $60,000.
This issue has been before the Panel on two separate occasions in Nelson v. Specialty Restaurants Corp. W.C. No. 3-987-235 (May 2, 2008) and Tadlock v. Gold Mine Casino W.C. 4-200-716 (August 5, 2008). In those cases the Panel, relying on Eight Thousand West Corp. v. Stewart, 37 Colo. App. 372, 546 P.2d 1281 (1976), determined that the increase in the maximum amount available for lump sum payment that occurred in 2007 was not available to the claimants whose dates of injury preceded the 2007 statutory amendment because the rights and liabilities of the parties are determined by the statute in effect at the time of injury. The claimant's argument notwithstanding, we conclude that the outcome in this matter is controlled by the court of appeals decision in Eight Thousand West. We therefore affirm the Director's order.
I.
The claimant seeks to distinguish Eight Thousand West arguing that the General Assembly in enacting the 1971 statutory increase to the lump sum acted in an entirely different manner than in 2007 when it increased the statutory maximum amount for a lump sum. The claimant argues that in 1971 the General Assembly specified the effective date for the change specifically "This act shall take effect July 1, 1971." Colo. Sess. Laws 1971, ch 225 at 914. In contrast, the 2007 General Assembly did not specify any effective date for the amendment but it was merely noted that it was approved as of May 30, 2007. Colo. Sess. Laws 2007, ch 341 at 1475. The claimant argues that this legislative history establishes that the General Assembly intended the 2007 amendment to apply to injury claims both before and after its adoption on My 30, 2007.
We are not persuaded that because the 1971 amendment specifically provided for the date it became effective and the 2007 amendment became effective upon the Governor's signature that this evidences an intent of the General Assembly for retroactive effect of the 2007 amendment, which would justify our ignoring the reasoning of the court in Eight Thousand West. The claimant has not cited, nor are we aware of any authority that the intent of the General Assembly regarding retroactive effect of an act can be discerned from the effective date being either the date stated in the act or upon the Governor's signature. To the contrary in Tacorante v. People, 624 P.2d 1324 (Colo. 1981) the Colorado Supreme held that the Colorado Constitution permits an act to become effective either on the date stated in the act or upon the Governor's signature. See also, Art. V, § 19, Colo. Const. (acts take effect on date sated or on passage); People v. Boston, ___ P.3d ___, Case No. 08CA0885 (Colo.App. Feb. 19, 2009) (safety clause stating act necessary for immediate preservation of public peace, health, or safety immunizes act from attach through referendum process). The only inference we draw from the 2007 amendment's provision that it was approved on May 30, 2007 is that the approval by the executive was necessary, his signature was the last act, and the date of passage was the date of his approval.
In contrast as the Panel previously noted in Tadlock v. Gold Mine Casino W.C. 4-200-716 (August 5, 2008), § 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. 2008 (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 essentially the same manner that they had in 1971, preceding the decision in Eight Thousand West. Therefore, we are not persuaded to enter an order contrary to the holding in Eight Thousand West.
II.
The claimant also seeks to distinguish Eight Thousand West on the basis that the facts in that case were that the new maximum for a lump sum would affect the insurers' ability to establish insurance rates because of unexpected higher costs but in the present case the Director made a factual determination that there was no increase in the overall amount payable to the claimant in permanent total benefits. However, as we read Eight Thousand West, the court held that the lump sum statute could not be applied retrospectively since the General Assembly did not indicate any such legislative intent. We consider the court's published opinion to control the matter at hand absent legislation to the contrary. See, e.g., U.S. Fidelity Guar., Inc. v. Kourlis, 868 P.2d 1158, 1162 (Colo.App. 1994) (to extend scope of statutory penalty provision requires remedy by General Assembly, not judicial legislation).
The Director's order reflects his disagreement with the court's holding and dicta in Eight Thousand West. Nonetheless, the Director denied the claimant's request for an additional lump sum for the laudable purpose of ensuring a consistent approach to the administration of lump sum applications in light of our previous determinations. The Director does state that there was no increase in the overall amount payable to the claimant in permanent total benefits and that the respondents were not affected at all by the higher lump sum. To the extent that the Director's order can be characterized as having made findings of fact, we note the Director's order was entered without a hearing and was in the nature of summary judgment. Because we view the Director's order as being in the nature of summary judgment, we note that that W.C. Rule of Procedure 17, 7 Code. Colo. Reg. 1101-3 paraphrases the language of C.R.C.P. 56(c) in providing that the moving party must "show that there is no disputed issue of material fact and that the party is entitled to judgment as a matter of law." See Fera v. Industrial Claim Appeals Office of State, 169 P.3d 231 (Colo.App. 2007).
Here, the claimant in her motion did not even allege the facts as apparently found by the Director regarding the financial impact on the respondents of granting the claimant's lump sum request. The respondents in their response to the claimant's request for a lump sum only supplied information relevant to the allegations made by the claimant. The respondents supplied information on the lump sum calculation and object to the request on the basis that the maximum permissible was limited to $37,560 based on the date of injury. Thus, there is no record support for any such factual averments. See § 8-43-301(8), C.R.S. 2008 (order may be set aside if findings of fact not supported by evidence).
The claimant concedes that a statute that is retrospective in its operation violates Article II, Section 11 of the Colorado Constitution. However, the claimant, citing Kuhn v. State of Colorado 924 P.2d 1053(Colo. 1996), argues that legislation is unconstitutionally "retrospective" only when retroactive effect of legislation impairs vested rights acquired under existing laws, or creates new obligation, imposes new duty, or attaches new disability in respect to transactions or considerations already past. The claimant contends that retroactive application here should be permitted because the amendment only effected a change that was merely procedural or remedial in nature.
Under these circumstances, we are not at liberty to find that the 2007 legislation did not impair a vested right or create a new obligation or duty. To the contrary, the court in Eight Thousand West in considering the same type of amendment to the lump sum provisions of the Act as under review here determined exactly the opposite. In Eight Thousand West, the court determined that to interpret the statute retrospectively could create chaos in the operations of the workmen's compensation insurers whose premium rates and loss reserves are computed on their potential liability inherent in the statutory scheme that was in effect upon issuance of the insurance. Policy considerations notwithstanding, we uphold the Director's order in accordance with judicial precedent.
IT IS THEREFORE ORDERED that the Director's order dated October 24, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant ELFIDO NAVARRETE, EDWARDS, CO, (Claimant). PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
SUSAN D PHILLIPS, Attn: SUSAN D PHILLIPS, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: RICHARD J LIBY, ESQ., DENVER, CO, (For Respondents).
DEPARTMENT OF WORKERS' COMPENSATION, Attn: DIRECTOR, C/O: BOB SUMMERS, DENVER, CO, (Other Party).
PINNACOL ASSURANCE, Attn: CHARLES WALKER, C/O: CLAIMS REP, DENVER, CO, (Other Party 2).