W.C. No. 4-154-629Industrial Claim Appeals Office.
May 20, 1999.
FINAL ORDER
The respondents seek review of a Supplemental Order of the Director of the Division of Workers’ Compensation (Director) which required them to reinstate temporary total disability benefits. We affirm.
In 1992 the claimant suffered a compensable injury. The respondents admitted liability for temporary disability benefits. The claimant has not been placed at maximum medical improvement (MMI) since the injury. However, relying on § 8-42-107.5, C.R.S. 1998, the respondents filed a General Admission of Liability which terminated temporary disability benefits effective August 20, 1998, because they have paid $120,000 in temporary disability benefits since November 18, 1992.
Section 8-42-107.5 provides that:
“No claimant whose impairment rating is twenty-five percent or less may receive more than sixty thousand dollars from combined temporary disability payments and permanent partial disability payments. No claimant whose impairment rating is greater than twenty-five percent may receive more than one hundred twenty thousand dollars from combined temporary disability payments and permanent partial disability payments.” (Emphasis added)
The respondents contend that the maximum benefit limitation established by § 8-42-107.5 is triggered by the payment of temporary disability benefits in the amount of $120,000. They argue that since they cannot be required to pay more than $120,000 in combined temporary and permanent partial disability benefits, the statute allows them to automatically terminate temporary disability benefits upon reaching the $120,000 limit.
In an order dated November 13, 1998, the Director rejected the respondents’ arguments and ordered the respondents to reinstate temporary disability benefits retroactive to August 20, 1998. The respondents timely appealed the Director’s order. On March 2, 1999, the Director issued a Supplemental Order.
Relying on Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995) (Murphy), the Director determined that § 8-42-107.5 creates a benefit cap for “combined” payments of temporary and permanent partial disability benefits. Therefore, the Director determined that the statutory cap is not applicable until the claimant reaches MMI and the claimant’s permanent partial impairment is established. The Director also pointed out that § 8-42-107.5 may have no application whatsoever if the claimant is found permanently and totally disabled.
Based on § 8-43-203(2)(d), C.R.S. 1998, the Director also determined that admitted liability for temporary disability benefits may only be terminated in accordance with § 8-42-105
(3)(a)-(d), C.R.S. 1998, or the Rules of Procedure Part IX, 7 Code Colo. Reg. 1101-3 at 32. Because the respondents have not complied with Rule IX or § 8-42-105(3), the Director ordered the respondents retroactively to reinstate temporary disability benefits, and required the payment of ongoing temporary disability benefits until terminated in accordance with Rule IX or further order. The respondents timely appealed the Supplemental Order.
On review the respondents renew the arguments they made to the Director. The respondents contend that § 8-42-107.5 creates an absolute cap on temporary or permanent partial disability benefits. The respondents also contend that the Director erroneously relied on Murphy because that case involved the $60,000 benefit cap while this case involves the $120,000 cap, which is not dependent on any impairment rating. Further, the respondents contend that § 8-43-203(2)(d) and § 8-42-107.5 are irreconcilable, and thus, they argue that the specific provisions of § 8-42-107.5 control. We agree with the Director and reject the respondents’ arguments.
The principles of statutory construction require that we construe the statute to give effect to its legislative purpose BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). To discern the legislative intent we must first give the words in the statute their plain and ordinary meanings, and a forced, subtle or strained construction of the statute should be avoided if the language is simple and the meaning is clear. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993); Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690
(Colo.App. 1997). Furthermore, where the statute is part of a comprehensive legislative scheme the statute must be considered in relation to the other provisions to achieve consistent, harmonious, and sensible effect among all the parts. City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995).
It is undisputed that § 8-42-107.5 creates a limitation on the amount of indemnity benefits payable to an injured worker. The limitation applies to the amount of “combined” temporary and permanent partial disability payments. The word “combined” means the unity, joining or merging of items. Webster’s II New College Dictionary (1995). Thus, the benefit cap created by § 8-42-107.5, applies when the amount paid for temporary disability joined with the amount due for permanent partial disability equals at least $120,000. This conclusion is also supported by the fact that the limit applies to temporary “and” permanent partial disability benefits. City of Thornton v. Replogle, 888 P.2d at 786.
However, § 8-42-107.5 does not purport to limit combined temporary and permanent total disability benefits. Therefore, §8-42-107.5 does not necessarily establish the respondents’ maximum liability for disability benefits.
Further, the existence of permanent total disability cannot be determined until the claimant reaches MMI and his ability to earn “any wages” can be ascertained. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). Hence, application of §8-42-107.5 is premature where the claimant has not reached MMI and continues to be temporarily disabled.
We also reject the respondents’ contention that the Director erroneously relied on Murphy in support of her determination that application of the cap is premature in the absence of MMI. Admittedly the issue in Murphy was whether the claimant was subject to the $60,000 cap where he had permanent medical impairment of less than twenty-five percent. However, the logic in Murphy applies with equal force where the respondents have paid $120,000 in temporary disability benefits, but the claimant remains temporarily disabled. Since it is impossible to determine if the claimant will be permanently and totally disabled prior to MMI, application of the statute limiting combined temporary and permanent partial disability benefits is premature.
Here, it is undisputed that the claimant has not reached MMI. Therefore, § 8-42-107.5 may never apply to this case.
Further, § 8-43-203(2)(d) provides that if liability is admitted, “payments shall continue according to admitted liability.” It is also well established that temporary total disability benefits continue until terminated in accordance with §8-42-105(3)(a)-(d), C.R.S. 1998, and cannot be unilaterally terminated except as provided by Rule IX. Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Subsection 8-42-105(3)(a) terminates temporary disability benefits when the claimant reaches MMI.
It follows that § 8-42-107.5 and § 8-43-203(2)(d) are not irreconcilable. Rather, § 8-42-107.5 provides that the $120,000 benefit cap is not applicable unless temporary disability benefits are properly terminated based upon a finding of MMI. Consequently, we need not consider the respondents’ further contention that the specific provisions of § 8-42-107.5
supersede the general provisions in § 8-43-203(2)(d).
We also reject the respondents’ contention that their unilateral termination of temporary disability benefits is consistent with Gregory v. Crown Transportation, 776 P.2d 1163
(Colo.App. 1989), where the court held that a petition to modify was not a prerequisite to a statutory offset against social security benefits because there was no procedural rule governing the offset. Unlike the issue presented in Gregory, Rule IX explicitly sets forth the procedure for the unilateral termination of temporary disability benefits and this procedure limits the unjustified interruption of benefits. Consequently, the circumstances presented here are legally distinguishable from the facts in Gregory. See Monfort Transportation v. Industrial Claim Appeals Office, supra; Jacquez v. Lilly Transfer Moving Company, W.C. No. 3-948-524 (July 6, 1990).
The respondents do not dispute the Director’s assertion that they have not complied with the requirements of Rule IX or §8-42-105(3)(a)-(d). Therefore, the ALJ did not err in ordering the respondents to reinstate temporary disability benefits retroactive to the date of termination. See Rule IX(H) at 36.01.
IT IS THEREFORE ORDERED that the Director’s Supplemental Order dated March 2, 1999, 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, 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. 1998.
Copies of this decision were mailed May 20, 1999 to the following parties:
Joseph Bowers, 6504 Sugar Creek Pl., Mobile, AL 36695
North American Property Consultants, Inc., 716 6th St., Greeley, CO 80631
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority (Interagency Mail) (For Respondents)
BY: A. Pendroy