W.C. No. 4-245-075Industrial Claim Appeals Office.
August 25, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ), dated May 27, 1997. The respondents contend that the ALJ erred in ordering them to pay medical impairment benefits at the maximum temporary total disability rate, instead of the claimant’s temporary total disability rate. We disagree and therefore, affirm.
The pertinent facts are undisputed. The claimant suffered a compensable injury on February 1, 1995. At the time of the injury, the claimant’s average weekly wage was $280, which results in a temporary total disability rate of $186.67. The claimant reached maximum medical improvement (MMI) on September 17, 1996, with permanent medical impairment of 9 percent of the whole person under the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides).
Section 8-42-107(8)(d), C.R.S. (1996 Cum. Supp.), 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” listed in §8-42-107(8)(e), and 400 weeks, and “shall be calculated at the temporary total disability rate specified in section 8-42-105.” The respondents admitted liability for medical impairment benefits of $12,096.22 (9% x age factor of 1.8 x 400 x $186.67).
However, because the claimant was a minor at the time of the industrial injury, the ALJ determined that the calculation of the claimant`s medical impairment award under § 8-42-107(8)(d) must also be consistent with § 8-42-102(4), C.R.S. (1996 Cum. Supp.). 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 September 17, 1996, was $468.44. Therefore, the ALJ ordered the respondents to calculate the claimant’s medical impairment benefits at the rate of $468.44, instead of $186.67.
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. Noting that § 8-42-107(8) was enacted after § 8-42-102(4), the respondents therefore argue that § 8-42-107(8)(d) governs the maximum rate of compensation payable to a minor. The respondents further contend that the maximum rate of compensation payable under §8-42-107(8)(d) is the claimant’s temporary total disability rate. Consequently, the respondents argue that the ALJ erred in requiring them to pay benefits at the rate of $468.44. We perceive no error.
The primary goal of statutory construction is to construe statutes in a manner which furthers the legislative intent for which they were enacted. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). Where there is an apparent conflict between two statutory sections, we must attempt to harmonize the statutes in order to give effect to the legislative intent of both statutes. Mountain City Meat Co. v. Oqueda, 919 P.2d 246
(Colo. 1996); DeJiacomo v. Industrial Claim Appeals Office, 817 P.2d 552 (Colo.App. 1991). Only where the statutes cannot be harmonized does the statute enacted last in time control DeJiacomo v. Industrial Claim Appeals Office, supra. The respondents’ arguments notwithstanding, we conclude that §8-42-107(8)(d) and § 8-42-102(4) may be construed in a manner to give effect to the legislative intent of both statutes.
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 a minor’s 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, supra. 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. To accomplish this goal, the General Assembly substituted “medical impairment” for “industrial disability” as the basis for a permanent partial disability award. Further, permanent disability benefits are to be determined based upon the AMA Guides, the claimant’s age, and pre-injury earnings.
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.
It follows 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. Furthermore, this construction gives effect to the legislative intent of § 8-42-102(4), without increasing litigation on the amount of medical impairment benefits.
The respondents do not dispute the ALJ’s finding that the maximum rate of temporary total disability as of September 16, 1996, was $468.44. Therefore, we conclude that the ALJ did not err in ordering the respondents’ to calculate the claimant’s medical impairment benefits at this rate.
In reaching this conclusion, we recognize that §8-42-107(8)(d) allows the first $10,000 of a medical impairment award to be paid in a lump sum, and provides that the remainder of the award:
“shall be paid at the temporary total disability rate but not less than one hundred fifty dollars per week and not more than fifty percent of the state average weekly wage, beginning on the date of maximum medical improvement.”
However, this language pertains to the method medical impairment benefits are paid out, as opposed to the amount of the award. Conversely, courts have consistently held that § 8-42-102(4) governs the “calculation” of a minor’s permanent partial disability benefits, not the rate at which those benefits are paid out to the claimant. See Golden Animal Hospital v. Horton supra; Torres v. Canam Industries, Inc., supra; Williams v. Industrial Claim Appeals Office, supra; DeJiacomo v. Industrial Claim Appeals Office, supra; Mills v. Guido’s, 800 P.2d 1370
(Colo.App. 1990). Consequently, we reject the respondents’ contention that the claimant’s temporary disability rate is the maximum rate of compensation payable for medical impairment benefits.
Nevertheless, the respondents argue that the “age factors” listed in § 8-42-107(8)(e), C.R.S. (1996 Cum. Supp.), ameliorate the wage differential between minors and adults. Therefore, the respondents contend that the enactment of §8-42-107(8)(e) reflects a legislative intent that medical impairment benefits be calculated without regard to §8-42-102(4). We disagree.
The legislature did not abolish § 8-42-102(4) when it enacted § 8-42-102(4). Nor did the General Assembly limit the 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 medical impairment benefits 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 “age factors” listed in § 8-42-107(8)(e) apply across the spectrum to all injured workers over age 19. Therefore, it could be argued that the General Assembly enacted § 8-42-107(8)(e) to ameliorate the disparate effect of lost earning capacity between injured workers of all ages, not merely between injured minors and adults. Accordingly, we are not persuaded that it is inconsistent with the legislative intent of either § 8-42-102(4) or § 8-42-107(8)(d) to conclude that an injured minor is entitled to the benefit of the higher end “age factor” list in § 8-42-107(8)(e), as well as the computation of benefits at the maximum temporary disability rate.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 27, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed August 25, 1997 to the following parties:
Robert J. Fluck, 90 Mimosa Drive, Jackson, TN 38301
Tom Hatfield, Arkansas Valley Seeds, Inc., 4625 Colorado Blvd., Denver, CO 80216-3217
Cynthia Spitz, Mid-Century Insurance Co., P.O. Box 378230, Denver, CO 80237-8230
Michael A. Perales, Esq. Paul D. Feld, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
W. M. Busch, Jr., Esq., 903 N. Cleveland Ave., Ste. A, Loveland, CO 80537 (For the Claimant)
By: _______________________________