IN THE MATTER OF THE CLAIM OF MARK ABEYTA, Claimant, v. ART C. KLEIN CONSTRUCTION, INC., Employer, and CALIFORNIA INDEMNITY INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-242-754Industrial Claim Appeals Office.
October 21, 1996

FINAL ORDER

The claimant seeks review of an order of the Director of the Division of Workers’ Compensation (Director) which calculated his lump sum award. We affirm.

The record reflects that the claimant sustained a permanent medical impairment of twenty-eight percent of the whole person, which entitled him to medical impairment benefits of $76,459.26. Pursuant to § 8-42-107(8)(d), C.R.S. (1996 Cum. Supp.), the claimant requested that the insurance carrier pay $10,000 of this amount in a lump sum. This request was granted, and the insurer filed a Final Admission of Liability stating that the remaining benefits would be paid over three hundred fourteen and one-seventh weeks at the rate of $243.19 per week (fifty percent of the state average weekly wage).

The claimant thereafter filed with the Director a request for a lump sum payment under § 8-43-406(1), C.R.S. (1996 Cum. Supp.). The Director granted this request in the amount of $27,560. After appropriate discounts and deductions were taken, the balance owed the claimant for medical impairment benefits was $33,400.57.

The Director determined that the residual amount owed the claimant should be paid at the weekly rate of $127.35 per week. A “Claims Manager” wrote a letter to the claimant explaining the Director’s calculation as follows:

“The amount of benefits remaining ($33,400.57) divided by the time remaining for the award to be paid out to be put into your file (314.4142 weeks less 52.14 weeks paid) equals $127.35 per week to be paid for the remaining length of the award.”

On review, the claimant contends that the Director erred in determining the weekly rate of payment for the residual benefits. Relying on § 8-42-107(8)(d), the claimant contends that the Director should have awarded the benefits to be paid at the rate of “fifty percent of the state average weekly wage,” or $243.19 per week for one hundred and thirty-seven weeks. We are not persuaded.

Section 8-43-406(1) provides that the Director “may order payment of all or any part of the compensation awarded in a lump sum, or in such manner as the director may determine to be for the best interests of the parties concerned.” Further, the statute provides that “the Director’s order shall be final and not subject to review.” Thus, we are precluded from interfering with the Director’s lump sum order unless it is predicated on a factor having no relation to the best interests of the parties, or is in excess of the authority granted by the statute. See Warren v. Southern Colorado Excavators, 862 P.2d 966
(Colo.App. 1993).

The objective of statutory construction is to effect the legislative intent. Consequently, words and phrases in a statute should be given their plain and ordinary meaning, and it is not necessary to resort to rules of statutory construction if a statute is not ambiguous. See Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993).

To the extent a statute is ambiguous, we should construe the entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Further, we should give deference to the interpretation of the Director because she is the executive official charged with administration of the lump sum provision. See Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo. 1984); Metro Glass Glazing, Inc. v. Orona, 868 P.2d 1178 (Colo.App. 1994).

The claimant’s argument notwithstanding, we see nothing in § 8-42-107(8)(d) which compels the result for which he argues. Rather, that portion of § 8-42-107(8)(d) which provides for payment of residual medical impairment benefits at “not more than fifty percent of the state average weekly wage” applies if the employee elects to receive a $10,000 lump sum payment as provided in the statute. The statute does not, on its face, purport to decide the rate at which residual benefits should be paid if the claimant also elects to apply for a additional lump sum under the provisions of § 8-43-406(1).

Moreover, there is no statutory right to receive a lump sum payment under § 8-43-406(1). Rather, the Director has discretion to determine whether a lump sum payment is in the best interest of the parties, and if a lump sum is not awarded periodic payments continue in the manner otherwise provided by the Act. Warren v. Southern Colorado Excavators, supra.

Thus, we view § 8-43-406(1) as a statutory provision which is independent of the provisions of § 8-42-107(8)(d), and not subject to the payment provisions established in subsection (8)(d). Rather, § 8-43-406(1) is a discretionary provision which permits the Director to determine not only whether to award a lump sum, but the “manner” in which the lump sum is to be paid.

Here, the Director has established a method for awarding the lump sum, and the manner in which the residual benefits are to be paid out. We cannot say her decision is contrary to the provisions of § 8-43-406(1), nor necessarily in conflict with the provisions of § 8-42-107(8)(d). For these reasons, we defer to the Director’s interpretation of the statutes, and conclude that there is no basis for interfering with the Director’s award. Warren v. Southern Colorado Excavators, supra.

IT IS THEREFORE ORDERED that the Director’s order dated March 28, 1996, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

________________________________ David Cain ________________________________ Dona Halsey

NOTICE

This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).

Copies of this decision were mailed October 21, 1996 to the following parties:

Mark Abeyta, 3390 Foxridge Dr., Colorado Springs, CO 80916

California Indemnity Ins. Co., Attn: Kathleen M. Bebee, P.O. Box 6597, Englewood, CO 80155-6597

Paul H. Haller, Esq., P.O. Box 636, Colorado Springs, CO 80901 (For the Claimant)

By: _________________________