Opinion
W.C. No. 4-126-069.
February 16, 2010.
FINAL ORDER
The respondents seek review of an order of the Director of the Division of Workers' Compensation (Director) dated September 24, 2009, that awarded a lump sum payment based upon retroactive application of amendments to the statute. We affirm.
The claimant requested a lump sum payment of $60,000. The respondents objected to the request for the additional payment of a lump sum stating that they had previously provided a lump sum of $26, 292. The Director determined that the claimant was entitled to an additional lump payment pursuant to an amendment made to § 8-43-406 C.R.S. 2009. The Director ordered that the total award of all lump sums granted on the claim should be $60,000.
The Director relied upon Nelson v. Industrial Claim Appeals Office 219 P.3d 416 (Colo. App. 2009) (cert. granted Nov. 9, 2009). In Nelson a division of the Colorado Court of Appeals held that an increase in the maximum lump sum payment applied retroactively. The court in Nelson declined to follow the previous opinion by a different division in Eight Thousand West Corp. v. Stewart, 37 Colo. App. 372, 546 P.2d 1281 (1976) which refused to give retroactive effect to an amendment to the lump sum statute.
Here, the Director relied upon C.A.R. 35 and determined that Nelson is the current state of the law and therefore dispositive in the present case. We disagree that the Director was compelled to apply Nelson. When one division of the Court of Appeals disagrees with a published decision issued by another division of the court there is no principle requiring application of the opinion issued later in time. See United States v. United States Vanadium Corporation, 230 F.2d 646 (10 Cir.), cert. denied, 351 U.S. 939, 76 S. Ct. 836, 100 L. Ed. 1466 (1956). One division of the court cannot overrule a decision of another division and, in our view, the Director could have elected to apply either decision. See U.S. v. Chavez, 10 Fed. Appx. 651 (10th Cir. Colo.), 2001. United States v. Hargus, 128 F.3d 1358, 1364 (10th Cir. 1997).
However, Nelson supports the Director's order in this matter and we therefore affirm. There is no suggestion in the Director's order that absent his mistaken view that he was compelled to apply Nelson he would have applied Eight Thousand West Corp. or that he believed Nelson was wrongly decided. Consequently, we infer that the Director's view is that Nelson is the preferable ruling in such cases. Because his order is supported by the applicable law we have no basis on which to set it aside. Section 8-43-301(8), C.R.S. 2009.
IT IS THEREFORE ORDERED that the Director's order dated September 24, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
ROXANE ARMSTRONG, CORTEZ, CO, (Claimant).
TRAVELERS PROPERTY CASUALTY COMPANY, Attn: HOLLY WESTERMAN, ST PAUL, MN, (Insurer).
CRANE TEJADA, PC, Attn: BETHIAH BEALE CRANE, ESQ., DURANGO, CO, (For Claimant).
RAY LEGO ASSOCIATES, Attn: JONATHAN S ROBBINS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
THE TRAVELERS, DENVER, CO, (Other Party).