W.C. No. 4-178-942Industrial Claim Appeals Office.
July 19, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ) which denied his claim for temporary total disability benefits during a period in which he was incarcerated. We reverse.
Insofar as pertinent, the record reflects that the respondents admitted liability for temporary total disability benefits from June 27, 1993 through September 9, 1993. Further, the parties stipulate to the following facts. The claimant was arrested on September 3, 1993 and remained incarcerated until February 1, 1995. On May 17, 1994, the claimant pled guilty to second degree burglary and was sentenced to two years in the Department of Corrections. Claimant was given credit for 258 days served while awaiting trial.
The sole issue before the ALJ was whether § 8-42-113 C.R.S. (1994 Cum. Supp.) precluded the claimant from receiving temporary disability for his period of confinement prior to the conviction. Section 8-42-113 states that:
“[N]otwithstanding any other provision of law to the contrary, any individual who is otherwise entitled to benefits under articles 40 to 46 of this title shall neither receive nor be entitled to such benefits for any week following conviction during which such individual is confined in a jail, prison, or any department of corrections facility.” (Emphasis added).
The ALJ was persuaded by the respondents’ argument that the phras “following conviction” means any imprisonment attributed to a conviction. Consequently, the ALJ concluded that the statute precluded the claimant from receiving temporary total disability benefits for the period of confinement prior to the conviction which subsequently credited against the sentence imposed following a conviction.
The claimant argues that § 8-42-113 is clear and unambiguous, and thus, contends that the statute is controlled by its plain and ordinary meaning. We agree.
The principles of statutory construction require that we construe statutes in such a manner as to further the legislative intent. Snyder v. Embree, 862 P.2d 259 (Colo. 1993). In discerning the intent of the General Assembly, we are first required to examine the language of the statute. Farmers Group, Inc. v. Williams, 805 P.2d 419, 422 (Colo. 1991). In so doing, we must give the words and phrases the effect of their plain and ordinary meaning unless the result is absurd. Colorado Department of Social Services v. Board of City Commissioners, 697 P.2d 1, 18 (Colo. 1985). Furthermore, if the statutory language is clear and unambiguous, the interpretative rules of statutory construction are inapplicable Husson v. Meeker, 812 P.2d 731 (Colo.App. 1991).
Webster’s Seventh New Collegiate Dictionary (1963) defines the wor following to mean “after” or “subsequent to.” The application of this definition to § 8-42-113 indicates that the phrase following conviction
precludes benefits for any week of incarceration after or subsequent to conviction.
Contrary to the respondents’ argument, this construction is not inconsistent with the court’s interpretation of the predecessor statute to § 8-42-113. In Wood v. Beatrice Foods Co., 813 P.2d 821, 822 (Colo.App. 1991), the court held that former § 8-52-104.5 C.R.S. (1986 Repl. Vol. 3B), was to be given its plain meaning, and concluded that the statutory language suspended “all benefits to prisoners following conviction.”
Further, we reject the respondents’ argument that our construction does not further the legislative intent for which the statute was enacted. In so doing, we recognize the language in Wood that the legislative history of former § 8-42-113 reflects an intent to:
“remedy the perceived unfairness of requiring employers and insurance carriers to pay benefits as compensation for lost earning capacity to persons who have no earning capacity because their imprisonment has removed them from the work force.”
However, had the statute been solely designed to relieve employers of paying compensation to persons who have no earning capacity due to imprisonment, the words “following conviction” would have been unnecessary. Instead, the General Assembly could have adopted language which precluded benefits during all periods of confinement. Further, if the General Assembly had intended to extend the preclusion to confinement prior to a conviction, where such confinement is subsequently credited against a sentence imposed as a result of a conviction, it could have adopted language which precluded benefits for any week in which the claimant was incarcerated in connection with a conviction.
The legislature did not expressly adopt such language, and we have no authority to infer the existence of such language. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985); see also City County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984) (where legislature did not extend SIF liability to include prior nonindustrial impairments to further goal of enhancing employment opportunities for disabled workers, court will not do so by judicial legislation). Therefore, the fact that the specific language enacted by the legislature may have been tailored more precisely to accomplish its intent does not compel the conclusion that giving the statute its plain meaning creates an absurd result. See Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Sup.Ct. 1994). Consequently, the statute is controlled by its plain meaning, and the ALJ erred in denying the claim for temporary disability benefits during the period of the claimant’s confinement prior to conviction.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 17, 1994, is reversed. The respondents shall pay the claimant temporary total disability benefits from September 10, 1993 through May 17, 1994.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1994 Cum.Supp.).
Copies of this decision were mailed July 19, 1995 to the following parties:
Carl Parham, 1470 Grant St., #201, Denver, CO 80203
Excaliburs, Inc./Barrett Properties, Inc., 2340 S. Chambers Rd., Aurora, CO 80013-2502
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq., (Interagency Mail)
Colorado Compensation Insurance Authority, Attn: Larry E. Lowe (Interagency Mail)
Joseph W. Ruppert, Esq. and Glen B. Goldman, Esq., 950 S. Cherry St., #1400, Denver, CO 80222 (For the Claimant)
BY: _______________________