W.C. No. 4-203-123Industrial Claim Appeals Office.
June 4, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which concluded the claimant is not entitled to an increase of permanent total disability benefits based on the two percent cost of living adjustment (COLA) provided by §8-42-111(4), C.R.S. 1998. We affirm.
Section 8-42-111(4) states that:
“For injuries occurring on or after July 1, 1991, and before July 1, 1994, the average weekly wage of injured employees used for computing compensation paid for awards pursuant to subsection (1) of this section shall be increased by two percent per year effective July 1 of each year, and such increased compensation shall be payable for the subsequent twelve months.”
Subsection 8-42-111(1), C.R.S. 1998, provides as follows:
“In cases of permanent total disability, the award shall be sixty-six and two-thirds percent of the average weekly wages of the injured employee and shall continue until death of such person so totally disabled but not in excess of the weekly maximum benefit specified in this article for injuries causing temporary total disability.”
Temporary disability benefits are calculated under §8-42-105(1), C.R.S. 1998, which provides that:
“In case of temporary total disability of more than three regular working days’ duration, the employee shall receive sixty-six and two-thirds percent of said employee’s average weekly wages so long as such disability is total, not to exceed a maximum of ninety-one percent of the state average weekly wage per week.” (Emphasis added).
The pertinent facts are undisputed. The claimant suffered an admitted injury on February 4, 1994. The claimant’s average weekly wages produces a temporary total disability rate in excess of the maximum benefit allowed by § 8-42-105(1). The respondent admitted liability for temporary total disability benefits at the rate of $432.25 per week, the maximum rate allowed by §8-42-105(1) at the time of the claimant’s injury, less a social security offset of $132.12.
The ALJ awarded the claimant permanent total disability benefits at the admitted rate for temporary total disability benefits. The ALJ also determined that permanent total disability benefits are subject to the benefit limitations provided in §8-42-105(1). Because the claimant’s temporary total disability rate is the maximum rate allowed by § 8-42-105(1), the ALJ determined the claimant is not entitled to the 2 percent COLA provided by § 8-42-111(4).
On appeal, the claimant contends that the provisions of §8-42-111(4) are mandatory and that the only reasonable construction of the statute requires that the claimant’s average weekly wage be increased by 2 percent per year resulting in an actual increase in permanent total disability benefits above the limitations provided by § 8-42-105(1). Further, the claimant contends that if the General Assembly had intended the 2 percent COLA to only apply to claimants receiving less than maximum permanent total disability benefits it could have done so. Therefore, the claimant argues the ALJ erroneously concluded that he is not entitled to the 2 percent COLA benefit.
The claimant recognizes that we rejected similar arguments i Thompson v. Pool, W.C. No. 4-238-099 (April 13, 1998) and Nelson v. Payless Drugstores, Inc., W.C. No. 4-190-447 (December 30, 1997), where we concluded that the 2 percent COLA increase provided by § 8-42-111(4) is subject to the overall benefit ceiling in § 8-42-105(1). However, the claimant argues tha Thompson and Nelson were wrongly decided.
We are not persuaded to depart from our conclusions i Thompson and Nelson. Furthermore, we made a similar holding i Salazar v. Nelson Pipeline Constructors, W.C. No. 4-213-910
(October 29, 1998). The following language from Nelson v. Payless Drugstores, Inc., supra, is pertinent.
“In interpreting § 8-42-111(4), we must seek to effect the legislative intent. In so doing, we apply the rule that words and phrases in statutes should be given their plain and ordinary meanings. If the statutory language is clear and unambiguous, we need not resort to other rules of statutory construction. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). Further, a comprehensive statutory scheme should be construed in a manner which gives consistent, harmonious, and sensible effect to all parts of the statute. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
Here, the plain language of § 8-42-111(4) provides that the two percent per year `increase’ is applied to the claimant’s `average weekly wage,’ not the total compensation itself. It is true that an increase in the average weekly wage may yield a higher compensation rate. However, subsection (4) expressly states that compensation is computed `pursuant’ to § 8-42-111(1), which provides that the `maximum’ benefit payment for permanent total disability benefits is subject to the same limitation as the maximum benefit payable for temporary total disability under § 8-42-105(1).
If the General Assembly had intended for the COLA to apply regardless of the benefit ceiling, it would have stated that the `compensation rate of injured employees’ shall be increased by `two percent per year effective July 1 of each year.’ However, the General Assembly did not do so, and we decline to read such a provision into the statute. See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985).”
Furthermore, the predecessor statute provided for the payment of permanent total disability benefits equal to sixty-six and two-thirds percent of the claimant’s average weekly wage “not in excess of the weekly maximum benefits” for temporary total disability. Section 8-42-111(1), C.R.S. (1990 Cum. Supp.). Had the General Assembly intended all claimants to receive a 2 percent increase in benefits without regard to the maximum benefit limitation in § 8-42-105(1), it would have repealed the phrase beginning “not in excess of” in § 8-42-111(1), at the same time it enacted § 8-42-111(4). See United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994). The legislature did not repeal this limitation when it created §8-42-111(4). See 1991 Colo. Sess. Laws, ch. 219, at 1313. Thus, we must presume that the legislature intended to retain the overall cap on permanent total disability benefits. Consequently, we reject the claimant’s contention that § 8-42-111(4) increases the maximum rate of permanent total disability benefits established by § 8-42-111(1). Rather, § 8-42-111(4) provides that overall awards are computed “pursuant to subsection (1).”
Section 8-42-105(1) provides that a claimant’s temporary disability rate shall not “exceed a maximum of ninety-one percent of the state average weekly wage per week.” The term “exceed” is unambiguous. Webster’s Seventh New Collegiate Dictionary (1963) defines the word “exceed” to mean “to be greater than” or “to go beyond a limit.” Therefore, § 8-42-105 limits the claimant to temporary disability benefits to a rate not greater than ninety-one percent of the state average weekly wage.
Here, there is no dispute that the claimant’s average weekly wage without the 2 percent COLA yields a temporary disability rate in excess of ninety-one percent of the state average weekly wage. Consequently, the ALJ did not err in refusing to award the claimant the 2 percent COLA benefit provided by § 8-42-111(4).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 4, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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, with service of a copy of the petition upon 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. 1998.
Copies of this decision were mailed June 4, 1999 the following parties:
Raymond O. Reeb, 2000 E. Ramar Rd., #202, Bullhead, AZ 86442
Northwest Transport Service, Inc., Attn: Brenda Clark-Dandridge, PO Box 710, Denver, CO 80201-0710
Helmsman Management Service, Inc., Attn: Dawn Thornton, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
W. M. Busch, Jr., Esq., 903 N. Cleveland Ave., Suite A, Loveland, CO 80537 (For Claimant)
John M. Connell, Esq., 1675 Larimer St., Suite 710, Denver, CO 80203 (For Respondents)
BY: A. Pendroy