W.C. No. 4-270-378Industrial Claim Appeals Office.
October 1, 1997
CORRECTED ORDER
Pursuant to § 8-43-302(1)(b), C.R.S. 1997 we issue this corrected order to correct a mistake in our order dated September 22, 1997. The last paragraph of our order inadvertently states that the ALJ’s order is “affirmed,” and should read that the ALJ’s award of medical impairment benefits is reversed. Accordingly, we reissue our order in its entirety to correct the error, and afford the parties their full appellate rights.
The claimant and respondents petitioned separately for review of an order of Administrative Law Judge Gandy (ALJ), which awarded medical impairment benefits, offset by the claimant’s receipt of social security disability benefits (SSDI). We reverse the award of medical impairment benefits.
The pertinent facts are undisputed. As part of her degree program, the Colorado State University placed the claimant as an unpaid student intern with the McKee Medical Center. On October 26, 1994, the claimant suffered injuries arising out of and in the course of her duties as a student intern, and sustained permanent medical impairment of twelve percent of the whole person.
Section 8-42-107(8)(d), C.R.S. 1997, provides that medical impairment benefits for whole person impairment shall be calculated at the temporary total disability rate. Under §8-42-105(1), C.R.S. 1997, a claimant’s temporary disability rate is sixty-six and two-thirds percent of the claimant’s average weekly wage.
Because the claimant earned no wages as a student intern, the respondents argued that the claimant is entitled to zero medical impairment benefits. In contrast, the claimant argued that she is entitled to medical impairment benefits calculated in accordance with § 8-40-202(1)(a)(VI), C.R.S. 1997.
In pertinent part, § 8-40-202(1)(a)(VI) provides that:
“The rate of compensation for a person placed pursuant to subparagraph (IV) of this paragraph (a) . . . . shall be based upon the wages normally paid in the community . . . for the type of work in which the person is engaged at the time of such injury.”
However, the respondents argued that the claimant is exempt from § 8-40-202(1)(a)(VI), because the claimant is not a person “placed pursuant to subparagraph (IV)” of §8-40-202(1)(a), and instead, is a student intern placed pursuant to § 8-40-203(7), C.R.S. 1997.
Section 8-40-302(7) provides that:
“(a) Any employer, as defined in section 8-40-203, who enters into a bona fide cooperative education or student internship program sponsored by an educational institution for the purpose of providing on-the-job training for students shall be deemed an employer of such students for the purposes of workers’ compensation and liability insurance pursuant to the articles 40 to 47 of this title.
(b) If the student placed in an on-the-job training program does not receive any pay or remuneration from the employer, the educational institution sponsoring the student in the cooperative education or student internship program shall insure the student through the institution’s workers’ compensation and liability insurance or enter into negotiations with the employer for the purpose of arriving at a reasonable level of compensation to the employer for the employer’s expense of providing workers’ compensation and liability insurance while such student is participating in on-the-job training with said employer. This paragraph (b) shall not apply to a student teacher participating in a program authorized pursuant to article 62 of title 22, C.R.S.
(c) As used in this subsection (7), “cooperative education or student internship program” means a program sponsored by an educational institution in which a student is taught through a coordinated combination of specialized in-the-school instruction provided through an educational institution by qualified teachers and on-the-job training provided through a local business, agency, or organization or any governmental agency in cooperation with the educational institution.”
Further, § 8-40-202(1)(a)(IV) states that:
“Except as provided in section 8-40-301(3) and section 8-40-302(7)(a), any person who may at any time be receiving training under any work or job training or rehabilitation program sponsored by a . . . . college and who, as part of any such work or job training or rehabilitation program . . . . is placed with any employer for the purpose of training or learning trades or occupations shall be deemed while so engaged to be an employee of the . . . . college sponsoring such training or rehabilitation program.”
The ALJ rejected the respondents’ argument and concluded that § 8-40-302(7) only addresses the identity of the claimant’s “employer” and the allocation of liability for workers’ compensation insurance. Furthermore, the ALJ found that § 8-40-302(7) does not expressly limit the type or amount of disability benefits a student intern may receive. Similarly, the ALJ determined that the phrase “except as provided by §8-40-203(7)(a)” in § 8-40-202(a)(IV) creates an exception to the identity of the employer of a person receiving training in a program sponsored by a college, and does not purport to preclude a student intern from receiving disability benefits. Therefore, the ALJ concluded that the claimant is entitled to medical impairment benefits calculated at the rate provided by §8-40-202(a)(VI), offset by the claimant’s receipt of SSDI benefits.
I.
On review the respondents contend that the ALJ misconstrued § 8-40-202(1)(a)(VI). We agree.
In Greenswift-Eikenberg v. Poudre Valley Hospital District, W.C. No. 4-230-056, April 21, 1997, we upheld an order denying temporary disability benefits to a claimant who was injured while working as an intern at the Poudre Valley Hospital, as part of an educational program sponsored by the Community College of Denver. Because the claimant was not paid any wages during the internship, the ALJ determined that the claimant had no wage loss and thus, was not entitled to temporary disability benefits. Based upon the rules of statutory construction, we concluded that § 8-40-202(1)(a)(IV) excludes unpaid student interns from the provisions of § 8-40-202(1)(a)(VI). Therefore, we upheld the ALJ’s order.
The claimant contends that Greenswift-Eikenberg was wrongly decided or is factually distinguishable. We disagree, and thus, are not persuaded to depart from our conclusions in that case.
The following language from Greenswift-Eikenberg is pertinent:
“The primary task in construing a statute is to give effect to the intent of the General Assembly. The plain language of the statute should first be considered, and if there is an ambiguity, rules of statutory construction may then be applied. Mountain City Meat Co. v. Oqueda, 919 P.2d 246
(Colo. 1996). Here, we agree with the claimant that § 8-40-302(7) only explicitly addresses the respective liabilities between employers and educational institutions. We also note that § 8-40-302 is entitled `Scope of the term `employer.’ See L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994) (title of a statute is relevant to the determination of legislative intent). However, these factors are not dispositive of the issue before us. When two or more statutes address the same subject matter, they should be construed together. See Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987); People in Interest of M.K.A., 182 Colo. 172, 511 P.2d 477 (1973).”
The plain language of § 8-40-202(1)(a)(IV) and §8-40-203(7) reflects that these statutes are intended to apply to distinctly different employees. Section 8-40-202(1)(a)(IV) governs any “any person” who is receiving training under a work or job training or rehabilitation program, “except” as provided by sections 8-40-203(7) and 8-40-301(3) . . . Section 8-40-203(7) pertains to “students” receiving training pursuant to a “bona fide cooperative education or student internship program,” and § 8-40-301(3) pertains to inmates confined to a city or county jail, or department of corrections facility, and performing labor or participating in a training or rehabilitation or work release program.
In the context of § 8-40-202(1)(a)(IV), the term “except” is unambiguous. Webster’s II Seventh New College Dictionary (1995), defines the term “except” to mean “with the exclusion of.” Similarly, Black’s Law Dictionary
(1968) defines “except” to mean “exclude from an enumeration.” It follows that a “student” who is receiving job training as part of a student internship defined in § 8-40-302(7), is not “any person” receiving training under § 8-40-202(1)(a)(IV).
We acknowledge that, as the ALJ determined, the exclusionary language of § 8-40-202(1)(a)(IV) could be read to mean that the employer-employee relationship of student interns is to determined in accordance with § 8-40-302(7)(a), rather than as provided in § 8-40-202(1)(a)(IV). However, this construction still does not permit us to conclude that student interns are entitled to compensation at the rate provided by § 8-40-202(1)(a)(VI), because subsection 8-40-202(1)(a)(VI) is expressly limited to those placed pursuant to subparagraph IV, and clearly, the claimant was placed pursuant to §8-40-302(7), which does not include a special provision for compensation.
Further, were we to adopt the construction that the exclusionary language only pertains to the manner of determining the “employer” of student interns, this would be inconsistent with the accompanying exclusion for inmates. We believe that the General Assembly intended to exclude inmates from receiving compensation, and it would be absurd to conclude that the same exclusionary provision applies to student interns only for the limited purpose of determining the employer, but applies comprehensively to inmates.
See Martin v. Montezuma-Cortez School District RE-1, 841 P.2d 237 (Colo. 1992) (forced or strained construction of statutes are disfavored).
In reaching this conclusion, we also recognize that §8-40-202 broadly defines the term “employee,” and establishes a statutory “rate of compensation” for certain unpaid employees. However, it does not expressly guarantee a rate of compensation for all unpaid “employees.” Rather, § 8-40-202(1)(a) reflects a legislative intent to ensure compensation only to the unpaid workers specifically enumerated.
Since unpaid student interns are not covered by §8-40-202(1)(a)(VI), and § 8-40-203(7) does not contain a statutory compensation rate for unpaid student interns, we conclude that such interns are subject to the general rules concerning their compensation rate. See Parker Fire Protection District Poage, 843 P.2d 108 (Colo.App. 1992) [the “rate of compensation” for volunteer firefighters in §8-40-202(1)(a)(II), C.R.S. 1997, is an exception to the general rule which requires lost wages in order to receive temporary disability benefits]. Furthermore, only the dissenting opinion i Poage suggested that the ALJ may “fairly” determine the average weekly wage of an unpaid employee pursuant to his discretionary authority under § 8-42-102(3), C.R.S. 1997. Under these circumstances, we are not persuaded that an ALJ is authorized to assign an average weekly wage to an unpaid student intern based upon the normal wages paid for the type of work the intern performed.
However, the claimant argues tha Greenswift-Eikenberg is distinguishable because it involved a claim for temporary disability benefits and this claim involves permanent partial disability benefits. We reject this argument.
We are mindful of the fact that temporary disability benefits are intended to compensate an actual wage loss, whereas permanent partial disability benefits are intended to compensate a future loss of earning capacity. See Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996). Nevertheless, medical impairment benefits for impairment of the whole person are paid at the temporary total disability rate, and that rate is based upon the claimant’s average weekly wage. Thus, the pertinent issue in this claim for permanent partial disability benefits, is essentially identical to the issue presented in Greenswift-Eikenberg.
We recognize the claimant’s argument that this construction creates disparate treatment between unpaid student interns who suffer permanent impairment to the whole person, and unpaid student interns who suffer scheduled disabilities which are compensated at a rate of $150 per week. See §8-42-107(6), C.R.S. 1997. However, the asserted inequity presents an issue for the General Assembly and not this forum. See Duran v. Industrial Claim Appeals Office, 883 P.2d 477
(Colo. 1994); Avis Rent-A-Car System v. Allstate Insurance Co., 937 P.2d 802 (Colo.App. 1997).
Here, there is no factual dispute that the claimant was injured while working as an unpaid student intern pursuant to a “bona fide cooperative education or student internship program.” Therefore, the claimant is entitled to medical impairment benefits based upon the rate of benefits she would receive if she suffered temporary total disability. However, the claimant concedes that her average weekly wage as a student intern was zero. Therefore, the claimant’s temporary disability rate is zero and the claimant is not entitled to any medical impairment benefits. Consequently, the ALJ erred in awarding medical impairment benefits and the award must be reversed.
II.
The claimant contends that the ALJ erred in granting a SSDI offset because she was awarded SSDI benefits for a pre-existing medical condition unrelated to the October 1994 industrial injuries. Because we reverse the award of benefits, any error in allowing a SSDI offset is harmless, and will be disregarded. Section 8-43-310 C.R.S. 1997 ; A R Concrete Construction v. Lightener, 759 P.2d 831 (Colo.App. 1988); see also Duran v. Industrial Claim Appeals Office, supra (if resolution of issue cannot have any effect upon an existing controversy issue is moot).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 20, 1996, is set aside insofar as it awards medical impairment benefits.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Bill Whitacre for Dona Halsey
NOTICE
This Order is final unless an action to modify orvacate this Order is commenced in the Colorado Court of Appeals,2 East 14th Avenue, Denver, CO 80203, by filing a petition forreview with the court, with service of a copy of the petitionupon 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 October 1, 1997 to the following parties:
Amy Kinder, 1110 Cypress Dr., Ft. Collins, CO 80521
Colorado State University, Attn: Sandra Trissell, 122 Johnson Dr., Ft. Collins, CO 80523-0001
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail)
Kyle L. Maus, Esq., 2629 Redwing Rd., Ste. 330, Ft. Collins, CO 80526 (For the Respondents)
Stephen J. Jouard, Esq., 215 West Oak St., 10th Flr., P.O. Drawer J, Ft. Collins, CO 80522 (For the Claimant)
BY: _______________________