IN RE BACHAYEV, W.C. No. 4-294-004 (3/11/98)


IN THE MATTER OF THE CLAIM OF ROMAN BACHAYEV, Claimant, v. MARRIOTT, Employer, and CONTINENTAL INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-294-004Industrial Claim Appeals Office.
March 11, 1998

FINAL ORDER

The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which required them to pay medical impairment benefits based upon the maximum temporary total disability benefit rate. We affirm.

It is undisputed that the claimant suffered a compensable injury on March 28, 1996. At the time of the injury, his average weekly wage was $172.57, which results in a temporary total disability rate of $115.05. The claimant reached maximum medical improvement (MMI) on April 11, 1997, with permanent medical impairment of 9 percent of the whole person.

The respondents admitted liability for medical impairment benefits calculated under § 8-42-107(8)(d), C.R.S. 1997. That statute provides that compensation for permanent impairment of the whole person shall be determined by multiplying the claimant’s medical impairment rating by the relevant “age factor” in §8-42-107(8)(e), C.R.S. 1997 and 400 weeks, and “shall be calculated at the temporary total disability rate specified in section 8-42-105.” Accordingly, the respondents admitted liability for medical impairment benefits calculated at the rate of $115.05 per week.

However, because the claimant was age 17 at the time of the injury, the ALJ determined that the claimant’s medical impairment benefits must be calculated in accordance with § 8-42-102(4), C.R.S. 1997. That statute provides that where a minor incurs permanent disability, those benefits “shall be paid at the maximum rate of compensation payable” at the time of MMI.

The ALJ found that the maximum temporary disability rate in effect on April 11, 1997 was $468.44 per week. Therefore, the ALJ ordered the respondents to pay medical impairment benefits calculated at the rate of $468.44 per week.

On review, the respondents contend that the provisions of §8-42-102(4) and § 8-42-107(8)(d) are in direct conflict and cannot be harmonized. The respondents also note that §8-42-107(8)(d) was enacted after § 8-42-102(4). Accordingly, the respondents argue that § 8-42-107(8)(d) governs, and that they correctly calculated the claimant’s medical impairment benefits at the rate of $115.05 per week. We disagree.

As the respondents recognize, we rejected similar arguments in Fluck v. Arkansas Valley Seeds, Inc., W.C. No. 4-245-075
(August 25, 1997). The facts of this claim are essentially indistinguishable from the facts in Fluck. Therefore, the legal issue is identical. The following language from Fluck is pertinent.

Permanent partial disability benefits are intended to compensate a worker for a permanent loss of future earning capacity. Broadmoor Hotel v. Industrial Claim Appeals Office., 939 P.2d 460
(Colo.App. 1996). However, the General Assembly recognized that minors generally earn less than adults, and that minors’ permanent disability extends over a longer working life than that of disabled adults. Williams v. Industrial Claim Appeals Office, 932 P.2d 869
(Colo.App. 1996). Therefore, the legislature enacted § 8-42-102(4) to address the disparity between minors and adults when the worker’s permanent disability benefits are calculated from the average weekly wage. Williams v. Industrial Claim Appeals Office, supra; DeJiacomo v. Industrial Claim Appeals Office, 817 P.2d 552
(Colo.App. 1991). Section 8-42-102(4) reduces that disparity by requiring a minor’s permanent disability benefits to be calculated at the maximum rate of compensation allowed by statute.
Prior to the enactment of Senate Bill 91-218, permanent partial disability benefits for non-scheduled injuries were calculated on a fixed rate of $120. The extent of disability was determined from a variety of factors, including the claimant’s general physical condition, mental training, ability former employment and education. Section 8-42-110(1)(b), C.R.S. (1990 Cum. Supp.). However, unlike the former scheme, or scheduled disability awards, medical impairment benefits under § 8-42-107(8)(d) are not calculated on a fixed rate. Instead, benefits are calculated at the claimant’s temporary disability rate. Broadmoor Hotel v. Industrial Claim Appeals Office, supra. One of the primary purposes of the amendment is to reduce litigation concerning the nature and extent of permanent disability. Colorado AFL-CIO v. Donlon, supra.
Because § 8-42-107(8)(d) expressly provides that medical impairment benefits shall be calculated at the temporary total disability rate specified in § 8-42-105, we conclude that the maximum rate payable for medical impairment benefits is the maximum rate of temporary total disability allowed by § 8-42-105. Section 8-42-105 provides that a claimant’s temporary disability rate is sixty-six and two-thirds percent of the claimant’s average weekly wage up to a maximum of ninety-one percent of the state average weekly wage.

Accordingly, in Fluck we concluded that, in the case of a permanently disabled minor, § 8-42-102(4) requires medical impairment benefits to be calculated at the maximum rate of temporary total disability, or ninety-one percent of the state average weekly wage. This construction gives effect to the legislative intent of both § 8-42-107(8)(d) and § 8-42-102(4), without increasing litigation on the amount of medical impairment benefits. Consequently, we reject the respondents’ argument that the statutes cannot be harmonized, and adhere to our conclusions in Fluck.

Nevertheless, the respondents contend that Fluck was wrongly decided because it failed to recognize that application of the “age factors” listed in § 8-42-107(8)(e), C.R.S. 1997, accomplishes the legislative purpose of § 8-42-102(4). We reject this argument.

In Fluck, we expressly recognized that § 8-42-107(8)(e) provides a graduated rate for the calculation of medical impairment benefits to claimants under age 20. However, we noted that § 8-42-107(8)(e) also provides a graduated rate for all
workers under the age of 60. Therefore, we concluded that §8-42-107(8)(e) may have been adopted to ameliorate the disparate effect of lost earning capacity between injured workers of all ages, not merely injured minors and adults.

Further, the legislature did not abolish § 8-42-102(4) when it enacted § 8-42-107(8)(e). Nor did the General Assembly limit application of § 8-42-102(4) to injuries occurring prior to the effective date of § 8-42-107(8)(e). See Williams v. Industrial Claim Appeals Office, supra. Therefore, we decline to presume that the legislature intended § 8-42-102(4) to be disregarded in the calculation of whole person medical impairment benefits under § 8-42-107(8). Cf. Rauschenberger v. Radetsky, 745 P.2d 640
(Colo. 1987); Dependable Cleaners v. Vasquez, 883 P.2d 583
(Colo.App. 1994) (when General Assembly does not amend statute, it must be presumed that General Assembly has endorsed court’s interpretation of statute).

Moreover, the respondents reliance upon Williams v. Industrial Claim Appeals Office, supra, is misplaced. Unlike the facts of this claim, Williams did not involve a whole person impairment. Rather, the minor in Williams sustained a scheduled injury. Furthermore, the Williams court did not reject application of § 8-42-102(4). Instead, the court held that under § 8-42-107(6), C.R.S. 1997, the maximum rate of compensation payable for scheduled injuries is $150 per week. Therefore Williams does not support the respondents’ argument.

Alternatively, the respondents contend that the claimant is not a “minor.” In support, the respondents cite § 13-22-101(1), C.R.S. 1997, which provides that persons age 18 years or older are adults for certain rights, including the right to sue. The respondents contend that it is inconsistent to treat an 18 year old as an adult for purposes of bringing an action in court, but a minor for purposes of § 8-42-102(4).

The respondents recognize that Casa Bonita Restaurant v. Industrial Commission, 677 P.2d 344 (Colo.App. 1983), stands for the proposition that the definition of the term “minor” for purposes of § 8-42-102(4), is controlled by the statutory language currently codified at § 2-4-401(6), C.R.S. 1997 and not §13-22-101(1). Brown v. Griffis/Blessing, W.C. No. 3-989-015 (July 6, 1992). Section 2-4-401(6) defines minor as “any person who has not attained the age of twenty-one years.” However, the respondents argue that Casa Bonita is outdated and should be revisited.

We are bound by published decisions of the court. C.A.R. 35(f). Consequently, we must follow Casa Bonita Restaurant v. Industrial Commission, supra, until and unless reversed.

In any case, the provisions of § 8-42-102(4) apply to injured workers who are minors at the time of the injury, and not at the time of MMI. See Golden Animal Hospital v. Horton, 897 P.2d 833
(Colo. 1995); Mills v. Guido’s, 800 P.2d 1370 (Colo.App. 1990). Here, it is undisputed that the claimant was a “minor” at the time he sustained the industrial injury. Therefore, the claimant is a “minor” for purposes of § 8-42-102(4), regardless of whether the term “minor” is defined by § 13-22-101(1) or § 2-4-401(6).

IT IS THEREFORE ORDERED that the ALJ’s order dated November 18, 1997, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL ________________________________ Kathy E. Dean ________________________________ Dona Halsey

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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.

Copies of this decision were mailed March 11, 1998 to the following parties:

Roman Bachayev, 1101 South Nome St., Aurora, CO 80012

Ms. Cherry Rizk, Marriott, 5151 Beltline Rd., #510, Dallas, TX 75240

Continental Insurance Co., Marriott Claims Service Co., Gene Cone, Regional Director 5151 Belt Line Road, Ste. 510, Dallas, TX 75240

Karen A. Burns, Esq., 745 Walnut St., Boulder, CO 80302 (For the Claimant)

Laurie Weisman, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)

Division of Workers’ Compensation — IME Coordinator (Interagency Mail)

By: ________________________________