W.C. No. 4-475-678Industrial Claim Appeals Office.
March 25, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied additional permanent partial disability benefits. We affirm.
The claimant, who is a Colorado resident, is employed as a flight attendant for United Airlines in Denver, Colorado. On April 17, 1998, the claimant suffered a compensable injury in Maryland. Pursuant to the terms of a collective bargaining agreement, the claimant received temporary total disability benefits in the amount of $38,357.80 under the Illinois Workers’ Compensation Act. The claimant subsequently filed a workers’ compensation claim in Colorado. Dr. Macauley rated the claimant’s permanent medical impairment at 16 percent of the whole person, which results in a permanent disability award of approximately $29,500 under § 8-42-107(8)(d), C.R.S. 2001.
However, § 8-42-107.5, C.R.S. 2001 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.”
Relying on § 8-42-107.5, the respondent filed a Final Admission of Liability for the payment of permanent partial disability benefits of $21,643.20, and temporary disability benefits of $38,357.80, for a total of $60,000 in combined indemnity benefits. The claimant objected to the Final Admission and requested permanent partial disability benefits equal to the full value of the 16 percent rating.
The claimant argued § 8-42-107.5 applied only to indemnity benefits paid under the Colorado Workers’ Compensation Act. The claimant also argued that application of § 8-42-107.5, by inclusion of the amount of temporary disability benefits paid by another state, fails to give effect to the offset provisions in §8-42-103(1)(e), C.R.S. 2001. Further, the claimant contended that § 8-42-107.5 and § 8-42-103(1)(e) are inconsistent, and therefore, she contended the specific offset provisions of § 8-42-103(1)(e) supersede the general provisions of § 8-42-107.5.
The ALJ found no conflict between the provisions of §8-42-107.5 and § 8-42-103(1)(e). Rather, the ALJ determined the offset provisions of § 8-42-103(1)(e) apply by relieving the employer of liability for additional temporary disability benefits where such benefits were already paid by another state. Further, the ALJ found that § 8-42-107.5 creates an overall limit on the amount of combined temporary disability and permanent partial disability benefits the claimant may receive.
The ALJ also determined § 8-42-107.5 contains no explicit restriction on the source of the temporary and permanent partial disability benefits which are subject to the $60,000 cap. Consequently, the ALJ found that the $60,000 limit applies even if temporary disability benefits are paid by another state. Further, the ALJ found the claimant’s construction would allow claimants to avoid the effect of the cap by receiving all temporary disability benefits in another state and then filing a claim in Colorado to receive permanent partial disability benefits. Accordingly, the ALJ approved the respondents’ Final Admission of Liability for permanent partial disability benefits of $21,643.20, and denied the claim for additional permanent partial disability benefits. The claimant timely appealed.
On review, the claimant renews the arguments which were considered and rejected by the ALJ. We agree with the ALJ’s reasoning and adopt it as our own.
The principles of statutory construction require that we construe statutes to give effect to their legislative purpose Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690 (Colo.App. 1997). To discern the legislative intent, we must first give the words in the statute their plain and ordinary meanings. 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., supra. Where the statute is part of a comprehensive legislative scheme, the statute must be considered in relation to the other provisions to effect to the legislative effect of both statutes. Gonzales v. Advanced Components, 949 P.2d 569 (Colo. 1997); DeJiacomo v. Industrial Claim Appeals Office, 817 P.2d 552 (Colo.App. 1991). To the extent that the statutes cannot be harmonized, the statute enacted most recently controls. DeJiacomo v. Industrial Claim Appeals Office , supra.
The claimant does not dispute that § 8-42-103(1)(e) is designed to prevent double recovery. Section 8-42-103(1)(e), which became effective July 1, 1990, [see 1990 Colo. Sess. Laws, ch. 62 at 487], provides that where periodic disability benefits are payable pursuant to a workers’ compensation act of another state “the aggregate benefits payable by the employer for temporary total disability” under § 8-42-103 shall be reduced by an amount equal to the benefits paid pursuant to the other workers’ compensation act. Thus, where the claimant is receiving temporary benefits for the same injury from another state, the employer’s liability for temporary disability benefits under the Colorado Workers Compensation Act is reduced. Cf. Spanish Peaks Mental Health center v. Huffaker, 928 P.2d 741 (Colo.App. 1996) (prohibition against double recovery applies when employer has purchased both sources of benefits).
Section 8-42-103(1)(e) contains no language concerning the application of any limitation or cap to the employer’s liability for combined temporary total and permanent partial disability benefits. Rather, § 8-42-103(1)(e) defines the employer’s liability for each form of indemnity benefits where such benefits are paid by under another state’s laws. In this sense, the statute coordinates benefits where the claimant is entitled to compensation for the same disability from two sources.
Section 8-42-107.5 was enacted by Senate Bill 91-218 and became effective July 1, 1991. See 1991 Colo. Sess. Laws, ch. 219 at 1311. Section 8-42-107.5 creates a limitation on the total amount of combined temporary disability and permanent partial disability an injured worker may receive for an injury which results in permanent impairment of 25 percent or less. Accordingly, there is no conflict between § 8-42-107.5 and §8-42-103(1)(e). See Colorado AFL-CIO v. Donlon, 914 P.2d 396
(Colo.App. 1995).
Had the General Assembly intended to restrict the cap to indemnity benefits paid under the Colorado Workers Compensation Act, the legislature could have adopted language to that effect in § 8-42-107.5. However, the statute does not restrict the cap to benefits paid under the Colorado Workers’ Compensation Act or to benefits which are not subject to any other offset or adjustment under the Act. We may not read non-existent language into the statute. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
Furthermore, the legislature is presumed cognizant of existing statutes in a particular area when it enacts new legislation. See Rauschenberger v. Radetsky, 745 P.2d 640 (Colo. 1987). The legislature did not amend § 8-42-103(1)(e) during the passage of Senate Bill 91-218. Under these circumstances, we must presume the legislature contemplated the application of §8-42-107.5 to circumstances where another state has paid temporary disability or permanent partial disability benefits which combine to meet the $60,000 benefit limit. Consequently, we reject the claimant’s contention that § 8-42-107.5 is inherently limited to indemnity benefits paid under the Colorado Workers’ Compensation Act.
As noted by the ALJ, the claimant’s construction would allow a claimant to avoid the $60,000 cap and receive a double recovery by obtaining temporary disability benefits in another state, and then applying for permanent partial disability benefits under the Colorado Workers’ Compensation Act. This result is inconsistent with the purpose of § 8-42-103(1)(e), and therefore, is not persuasive.
Moreover, the legislative history reveals that the statutory limitation of $60,000 on combined temporary and permanent partial disability benefits was designed to create an overall savings in workers’ compensation costs to employers, while allowing a “more generous” award at levels of impairment over 25 percent. See First Conference Committee on SB 218, May 3, 1991, 8:19 p.m., Rm. 356, Tape 91-32; May 4, 1991 11:22-11:37 a.m. Quackenbush v. Tennant Roofing Inc., W.C. No. 4-218-272 (June 19, 1998). The savings to employers would be eviscerated if § 8-42-107.5 is read to exclude out-of-state indemnity benefits from the $60,000 cap.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 5, 2001, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 25, 2002 to the following parties:
Sally Garrard, P. O. Box 1075, Parker, CO 80138
United Airlines, DIA, 8400 Pena Blvd., Denver, CO 80249-6357
United Airlines, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO 80111
Robert W. Turner, Esq., 1120 Lincoln St., #1001, Denver, CO 80203 (For Claimant)
John H. Sandberg, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondent)
BY: A. Pendroy