W.C. No. 4-213-910Industrial Claim Appeals Office.
May 5, 1999.
FINAL ORDER
The claimant seeks review of an order of Chief Administrative Law Judge Felter (ALJ Felter) which was issued pursuant to our Order of Remand. The claimant contends the ALJ erroneously determined he is not entitled to the cost of living adjustment (COLA) provided by § 8-42-111(4), C.R.S. 1998. We affirm.
This appeal concerns the application of § 8-42-111, C.R.S. 1998. Subsection 8-42-111(4), C.R.S. 1998, 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.” (Emphasis added)
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 claimant sustained an industrial injury which is subject to the provisions of § 8-42-111(4). On October 23, 1996, Administrative Law Judge Rumler (ALJ Rumler) entered an order which required the respondents to pay permanent total disability benefits. It is undisputed the claimant’s average weekly wage produced a permanent total disability rate of $432.25 per week, the maximum temporary total disability rate provided by §8-42-105(1) at the time of the injury. On October 24, 1996, ALJ Rumler issued a Supplemental Order which required the respondents to increase the claimant’s permanent total disability rate by 2 percent each year pursuant to § 8-42-111(4).
The respondents subsequently petitioned to reopen the claim on grounds of a mistake or error. The respondents alleged ALJ Rumler erroneously required them to increase the claimant’s permanent total disability benefits by the 2 percent COLA provided by § 8-42-111(4). In a prior order the ALJ determined there was no mistake or error in the Supplemental Order. Therefore, the ALJ denied the petition to reopen. The respondents timely appealed.
In Nelson v. Payless Drugstores, Inc., W.C. No. 4-190-449
(December 30, 1997) and Thompson v. Pool Co., W.C. No. 4-238-099
(April 13, 1998), we concluded that the 2 percent COLA provided by § 8-42-111(4) is subject to the overall benefit ceiling in §8-42-105(1). Expressly relying on Nelson and Thompson we concluded that there was a mistake of law insofar as ALJ Rumler’s Supplemental Order required the respondent to pay permanent total disability benefits in excess of the maximum temporary total disability rate allowed by § 8-42-105(1). Therefore, in an Order of Remand dated October 29, 1998, we set aside the ALJ’s prior order and remanded the matter to the ALJ for a determination of whether the mistake of law justified reopening the claim.
On remand the ALJ determined that the mistake of law justified reopening the claim. Therefore, in an order dated February 24, 1999, the ALJ set aside ALJ Rumler’s Supplemental Order insofar as it required an increase of permanent total disability benefits based upon the 2 percent COLA provided by §8-42-111(4). The claimant timely filed a Petition to Review the February 24 order.
On appeal, the claimant contends that Nelson and Thompson
were wrongly decided. Therefore, the claimant argues that we erroneously set aside the ALJ’s prior order. In support, the claimant reasserts the same arguments which we previously considered and rejected in this matter.
Insofar as the claimant requests that we reconsider our prior conclusions on this issue, we are not persuaded to do so. Therefore, we adhere to our conclusion that the COLA adjustment provided by § 8-42-111(4) is subject to the benefit cap in § 8-42-105(1), C.R.S. 1998, and expressly incorporate the reasoning set forth in our Order of Remand.
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).
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 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),” which in term limits the claimant to the weekly maximum benefit established in §8-42-105(1).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 24, 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 May 5, 1999 the following parties:
Frank J. Salazar, 7375 West 84th Way, #2017, Arvada, CO 80030
Nelson Pipeline Constructors, PO Box 440638, Aurora, CO 80044
Liberty Mutual Inc. Co., Attn: Vicki Sapp, 13111 E. Briarwood Ave., Suite 100, Englewood, CO 80112
Douglas R. Phillips, Esq., 155 S. Madison, Suite 330, Denver, CO 80209 (For the Claimant)
Scott M. Busser, Esq., Zarlengo, Mott, Zarlengo Winbourn, 300 S. Jackson St., Suite 570, Denver, CO 80209 (For the Respondents)
BY: le