W.C. No. 4-606-915.Industrial Claim Appeals Office.
October 12, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) insofar as it determined the claimant’s average weekly wage (AWW) should not include the cost of continuing health insurance. We affirm.
The ALJ, relying on Midboe v. Industrial Claim Appeals Office, 88 P.3d 643 (Colo.App. 2003), and our subsequent decision in Marsh v. Sunnyrest Health Care, W.C. No. 4-536-309
(April 23, 2004), held that the claimant was not entitled to have the cost of health care insurance included in the AWW because he failed to purchase COBRA coverage when the employer’s plan was terminated. The claimant argues that our interpretation o Midboe was incorrect and that this interpretation denies the claimant equal protection of the laws.
Midboe held that in the context of § 8-40-201(19)(b), C.R.S. 2003, the terms “cost of continuing the employer’s group health insurance plan” and “cost of conversion” are terms of art having the same meanings that are used in COBRA. Thus, the court stated that “a claimant’s AWW includes the cost of health insurance only when a claimant has `continued’ the employee’s coverage at his or her own expense.” 88 P.3d at 646. Of course, in Midboe, the right to “continue” health insurance had not yet been triggered because the employer’s plan remained in effect. In Marsh an Ashmore v. Nu Horizon Window Systems, Inc., W.C. No. 4-593-027
(August 25, 2004), we read Midboe to mean that once the issue of “continuation” arises after termination of the employer’s plan, the claimant must comply with COBRA by electing and paying for coverage or, as was the case in Midboe, there is no “cost” of “continuation.” For the reasons stated in Ashmore an Marsh, we adhere to our interpretation of Midboe. It follows that the ALJ ruled correctly.
We note the claimant places substantial reliance on the decision in Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546, 549 (Colo.App. 2001), where the court stated, “the statute does not require proof that the claimant has actually purchased coverage” in order for health insurance to be included in the AWW. In Marsh, we concluded that this statement constituted dictum. We reached this conclusion because, as the Humane Society court itself remarked, the record in that case contained no evidence on whether the claimant had or hadn’t purchased insurance, and the court was merely venturing an opinion on the result if the record had shown the claimant did not purchase insurance. As it was, the record was silent on the matter and the court was unwilling to assume the claimant had not purchased insurance.
In any event, the Humane Society decision was rendered befor Midboe held that the statutory terms “continuation” and “conversion” have technical meanings identical to those used in COBRA. The Humane Society court could not have foreseen these special time-sensitive meanings when it stated, “when and where to purchase coverage is a decision for the claimant.” Cf. Gonzales v. City of Fort Collins, W.C. No. 4-365-220 (November 20, 2003), aff’d., Gonzales v. Industrial Claim Appeals Office,
(Colo.App. No. 03CA2381, July 22, 2004) (not selected for publication) (cost of family health coverage, which claimant carried at time of injury, not included in AWW because family not enrolled at time health insurance was terminated as required by COBRA, and because General Assembly was presumably aware when it enacted the statute that inclusion of such coverage in AWW would be dependent on enrollment at the time of termination).
The claimant contends that the statute, as interpreted b Midboe and amplified by Marsh, violates the claimant’s equal protection rights. However, we consider the holding in Marsh to be compelled by the Midboe court’s interpretation of §8-40-201(19)(b). Where, as here, the court has interpreted the statute as imparting a specific meaning, we lack jurisdiction to declare the statute unconstitutional. Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430, 432 (Colo.App. 2003) (Court of Appeals has original jurisdiction to consider constitutional challenges to Act); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 24, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Gregory Crider, Grand Junction, CO, Marylee LaBaw, Speedy Heavy Hauling, Inc., Rifle, CO, American Home Assurance, c/o Dawn Chambers, AIG Claim Services, Inc., Phoenix, AZ, Christopher Seidman, Esq., Grand Junction, CO, for Claimant.
Matthew C. Hailey, Esq., Denver, CO, for Respondents.