W.C. No. 4-166-217Industrial Claim Appeals Office.
March 26, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) which calculated the claimant’s “temporary total disability rate” for purposes of awarding medical impairment benefits under § 8-42-107(8)(d), C.R.S. (1995 Cum. Supp.). We modify the order.
The facts are not in dispute. At the time of the claimant’s injury in November 1992, she earned $389.57 per week. In addition, claimant received fringe benefits which included health insurance valued at $85.31 per week. The employer paid $70.08 per week towards the cost of the health insurance.
Following the claimant’s injury, she was placed on “long term disability.” As an incident of the long term disability plan, the employer continued to pay its share of the health insurance costs.
On February 23, 1995 the respondent filed a Final Admission of Liability admitting liability for medical impairment benefits based upon impairment of twenty-three percent of the whole person and calculated on an average weekly wage of $389.57. The claimant objected the respondents’ Final Admission insofar as it calculated the benefits based upon an average weekly wage of $389.57.
In calculating the claimant’s entitlement to medical impairment benefits under § 8-42-107(8)(d), the ALJ concluded that the claimant’s “temporary total disability rate” should include the employer’s cost of continuing the health insurance. Consequently, the ALJ determined the claimant’s “average weekly wage” was $459.65 per week, not $389.57 per week as admitted by the respondents.
In reaching this conclusion, the ALJ reasoned as follows. She noted that § 8-42-107(8)(d) requires that medical impairment benefits “be calculated at the temporary total disability rate specified in § 8-42-105.” The ALJ then observed that § 8-42-105(1), C.R.S. (1995 Cum. Supp.), provides that in the event of “temporary total disability” the employee “shall receive sixty-six and two-thirds percent of said employee’s average weekly wages so long as such disability is total.” Relying on § 8-42-105(1), the ALJ held that the claimant was to be compensated for her total wage loss which includes the employer’s contribution to the health insurance.
Moreover, the ALJ rejected the respondents’ argument that, under §8-40-201(19)(b), C.R.S. (1995 Cum. Supp.), the employer’s continued payment of the health insurance costs precluded inclusion of the payments in the average weekly wage. The ALJ stated that “actual loss of earnings does not figure into the calculation and determining medical impairment benefits.”
On review, the respondents contend that the ALJ erred in concluding that the employer’s contribution to the health insurance should be included in the claimant’s average weekly wage for purposes of calculating the claimant’s medical impairment benefits. The respondents argue that the plain meaning of § 8-40-201(19)(b) excludes consideration of employer contributions to health insurance if the employer continues to pay the cost of health insurance coverage. We agree with the respondents, and therefore, modify the order.
The principal rule of statutory construction is to give effect to the legislative intent of the statute. Consideration must first be given to the language of the statute, and words and phrases contained in the statute should be given their plain and ordinary meaning, unless the result is absurd. Where language is clear and unambiguous, there is no need to resort to interpretive rules of statutory construction. See Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993).
Here, § 8-42-107(8)(d) provides that medical impairment benefits are to be calculated at the “temporary total disability rate” found in § 8-42-105. The “rate” of temporary total disability found in § 8-42-105(1) is “sixty-six and two-thirds percent of said employee’s average weekly wages.” Contrary to the ALJ’s ruling, § 8-42-107(8)(d) is not concerned with whether or not the claimant’s disability is temporary, total, or partial. Rather, § 8-42-107(8)(d) merely directs that the “rate” for calculating permanent medical impairment benefits be the same as the “rate” for the payment of temporary total disability benefits.
Further, since § 8-42-105(1) refers to “average weekly wages,” we should interpret that term in accordance with the express definitions found in the statute. Section 8-40-201(19)(a), C.R.S. (1995 Cum. Supp.), defines “wages” as the “money rate at which services rendered are recompensed under the contract of hire.” Section 8-40-201(19)(b) goes on to state the following:
“The term `wages’ shall include the amount of the employee’s cost of continuing the employer’s group health insurance plan and, upon termination of the continuation, the employee’s cost of conversion to a similar or lesser insurance plan, . . . If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of such health insurance coverage, such advantage or benefit shall not be included in the determination of employee’s wages so long as the employer continues to make such payment.” (Emphasis added).
The clear and unambiguous effect of § 8-40-201(19)(b) is to exclude from the claimant’s wage calculation the cost of health insurance if the employer continues to pay its share of the cost after the injury. See Aspen Highlands Skiing Corp. v. Apostolou, 854 P.2d 1357, 1361(Colo.App. 1992), aff’d. 866 P.2d 1384 (Colo. 1993) (the value of benefits not described in § 8-40-201(19) may not be included in determining the level of benefits). In view of the unambiguous nature of § 8-40-201(19)(b), we have previously held that it applies to calculations of the “temporary total disability rate” as that term is used in § 8-42-107(8)(d). See Padilla v. K-Mart Apparel Fashions Corp., W.C. No. 4-117-172, November 29, 1994, aff’d., Padilla v. Industrial Claim Appeals Office, Colo. App. No. 94CA2111, September 7, 1995 (not selected for publication). We adhere to our previously stated position.
Under these circumstances, the ALJ’s order must be modified to reflect that the payment of the medical impairment benefits should be based on the claimant’s average weekly wage without regard to the cost of the continuing health insurance. In the event the employer discontinues payment for the health insurance costs, the medical impairment benefits may be modified accordingly.
IT IS THEREFORE ORDERED that the ALJ’s order, dated December 21, 1995, is modified in accordance with the provisions of this order.
INDUSTRIAL CLAIM APPEAL PANEL
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed March 26, 1996 to the following parties:
Evelyn Salas, 4485 London Ln., Colorado Springs, CO 80916
NCR Corporation, Attn: David Wells, 1635 Aeroplaza Dr., Colorado Springs, CO 80916
Liberty Mutual Ins. Co., Attn; Leona Zuffoletto, 13111 E. Briarwood Ave., #100, Englewood, CO 80111
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203
(For the Respondents)
Dale A. Gerlach, Esq., P.O. Box 636, Colorado Springs, CO 80901
(For the Claimant)
By: _____