W.C. Nos. 3-986-570 4-215-667Industrial Claim Appeals Office.
November 15, 1996
The Denver Brick Company (Denver Brick), and its insurer, Colorado Compensation Insurance Authority (CCIA, and collectively respondents), seek review of a final order of Administrative Law Judge Rumler (ALJ) which held them liable for the claimant’s permanent total disability benefits. The respondents assert that liability for the permanent total disability benefits should have been apportioned to the Subsequent Injury Fund (SIF), or alternatively, apportioned pursuant to § 8-42-104(2), C.R.S. (1996 Cum. Supp.). We modify the ALJ’s order to provide for the latter apportionment.
The facts in this case are undisputed. The claimant was first injured on July 6, 1990 while employed by Denver Brick. The permanent effects of this injury precluded the claimant from returning to the heavy work which he performed before the injury. Nevertheless, the claimant continued to be employed by Denver Brick.
On June 16, 1994, the claimant sustained a second industrial injury at Denver Brick. This injury caused additional restrictions which precluded the claimant from returning to work at all. The parties stipulated that the claimant is permanently and totally disabled as a result of both injuries.
The matter proceeded to a hearing on whether the respondents are entitled to SIF liability for a portion of the permanent total disability benefits, or alternatively, “apportionment” of permanent total disability benefits under § 8-42-104(2). The ALJ rejected the respondents’ argument that they are entitled to SIF liability. The ALJ concluded that, because the claimant’s second injury occurred after closure of the SIF pursuant to § 8-46-104, C.R.S. (1996 Cum. Supp.), no offset is appropriate.
The ALJ went on to find, based upon the testimony of a vocational expert, that “70% of the claimant’s permanent total disability is attributable to the 1990 injury, and the remaining 30% is attributable to the 1994 injury.” Despite this finding, the ALJ did not apportion liability under § 8-42-104(2), and concluded that the CCIA is “solely liable for the claimant’s permanent total disability benefits.”
I.
The respondents first contend that the ALJ erred in refusing to assess liability against the SIF. The respondents argue that the term “injuries,” as used in § 8-46-104, is “ambiguous,” and should be read to mean that all contributing “injuries” must occur after July 1, 1993. In support of this argument, the respondents cite § 8-46-101(1)(a), C.R.S. (1996 Cum. Supp.), which establishes the conditions for SIF liability. The respondents reason that, because SIF liability is predicated upon the occurrence of multiple industrial injuries which cause permanent partial industrial disability, the term “injuries” in § 8-46-104 means that all injuries which contribute to permanent disability must occur after closure of the SIF. We reject this argument.
The principal rule of statutory construction is that statutes should be interpreted so as to effect the legislative intent for which they were enacted. Thus, words and phrases should be given their plain and ordinary meaning, and when no ambiguity is involved it is unnecessary to resort to rules of statutory construction. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). Moreover, if a statute is “non-specific on a point which, nevertheless, is obvious from the clear statutory scheme involved, no special construction of the statute is required.” Green v. Industrial Claim Appeals Office, 789 P.2d 481(Colo.App. 1990) (term “injuries” was not ambiguous in light of statutory scheme designed to eliminate Major Medical Insurance Fund liability).
To the extent a statute is ambiguous, it is appropriate to resort to legislative history in order to ascertain the legislative intent. McCallum v. Dana’s Housekeeping, ___ P.2d ___ (Colo.App. No. 96CA0459, October 24, 1996). Further, it is proper to consider the problem sought to be solved by the statute, and the state of the law prior to the legislative enactment Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
The respondents’ argument notwithstanding, we perceive no ambiguity or inconsistency between the word “injuries” as it appears in § 8-46-104, and the term “injury” as used in §8-46-101(1)(a). Although it is certainly true that §8-46-101(1)(a) contemplates that the claimant will have sustained multiple industrial injuries causing permanent disability, when the statute uses the word “injury” it is always preceded by the word “subsequent.” Therefore, the specific use of the term “injury” in § 8-46-101(1)(a) refers to the final or last industrial injury which renders the claimant permanently and totally disabled.
It follows that the use of the word “injuries” in § 8-46-104
also refers to final or “subsequent injuries” which occur on or after July 1, 1993. While § 8-46-104 uses the plural form of “injury,” the statute is merely anticipating the many cases which will fall outside the SIF where the last injury occurs after July 1, 1993. Moreover, this interpretation is fully consistent with the obvious statutory purpose of § 8-46-104, which is to “enhance the solvency of the Subsequent Injury Fund for Workers’ Compensation” by closing the fund. 1992 Colo. Sess. Laws, ch. 238 at 1828. Thus, it is apparent from the entire statutory scheme that the General Assembly did not intend the meaning of the word “injuries” which is urged by the respondents. Green v. Industrial Claim Appeals Office, supra.
However, even if we were to conclude that the term “injuries” is ambiguous, we would not adopt the construction urged by the respondents. The legislative history, which was provided as an appendix to the SIF’s brief, reveals that the purpose of §8-46-104 was to remedy a problem involving the solvency of the SIF by limiting the number of cases admitted to the SIF on or after July 1, 1993. If we adopt the interpretation urged by the respondents, SIF liability will be prolonged for decades into the future due to the probability that some young workers, first injured prior to July 1, 1993, will suffer subsequent injuries after that date. Considering the circumstances in which the General Assembly was operating in 1992, we cannot believe it intended such a result.
The respondents also argue that the purpose of SIF liability is to encourage the hiring of partially disabled employees by alleviating the effects of the full responsibility rule. E.g., Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. 1990). The respondents assert that our interpretation of the word “injuries” defeats the beneficent purpose of SIF liability by limiting its applicability.
However, this argument ignores the fact that we are not called upon to interpret the purpose of the statute creating SIF liability. To the contrary, we are called upon to interpret a statute which expressly eliminates SIF liability for “injuries” occurring on or after a date certain. Thus, whatever the merits of SIF liability, it is apparent that the General Assembly considers them to be outweighed by the costs of continuing to provide SIF liability.
Insofar as the respondents make other arguments, we find them to be without merit. It follows that the ALJ correctly concluded that the respondents are not entitled to SIF liability.
II.
The respondents next contend that the ALJ erred in ordering them to pay permanent total disability benefits without regard to apportionment under § 8-42-104(2). The respondents point out that the ALJ expressly found that seventy percent of the claimant’s permanent total disability is attributable to the 1990 injury. Consequently, they reason that the statute requires them to pay only thirty percent of the claimant’s permanent total disability benefits. We agree that is the consequence of the statute, and therefore, modify the ALJ’s order.
As the respondents point out, we have previously addressed this issue in Haislip v. HCC Foothills Care Center, Inc., W.C. No. 4-133-841, et. al., April 4, 1996. (Copy attached to SIF Brief). In that case, the claimant sustained four industrial injuries, the last of which occurred after closure of the SIF. The ALJ determined that a combination of the four injuries rendered the claimant permanently and totally disabled. Under such circumstances, the insurer on the last injury argued that §8-42-104(2) might support “apportionment” of the permanent total disability benefits, and we agreed. Much of our reasoning i Haislip is pertinent, and we adopt it here.
Section 8-42-104(2) provides as follows:
“In case there is a previous disability, the percent of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury. In such cases awards shall be based on said computed percentage. Such computation, when applicable, shall be made in the following types of awards under articles 40 to 47 of this title: Permanent total, permanent partial, including scheduled, working unit, and lump sum; except that, in the event the provisions of § 8-46-101 are applicable, such apportionment shall not be made.” (Emphasis added).
Section 8-42-104(2) was enacted after the Supreme Court’s ruling in Colorado Fuel and Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962). In Colorado Fuel and Iron Corp., the Supreme Court interpreted the Act, as it then existed, to mean that “when an employer hires an employee who, by reason of a pre-existing condition or by reason of a prior injury, is to some extent disabled, he takes the man with such handicap.”379 P.2d at 158. The court’s ruling, which established, or restated, the “full responsibility rule,” was partially predicated on the absence of any “apportionment statute” in the Workers’ Compensation Act.
Subsequently, in 1963, the General Assembly enacted the predecessor to § 8-42-104(2). See 1963 Colo. Sess. Laws, ch. 180 at 641. Thereafter, the statute was interpreted to require apportionment of permanent partial disability benefits to the extent that prior industrial injuries disabled the claimant at the time of the subsequent injury. Colorado Fuel and Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652 (1968).
We have found no case which discusses apportionment of permanent total disability under the provisions of § 8-42-104(2) or it predecessors. However, at least since the creation of the expanded SIF in 1975, apportionment of permanent total disability benefits based on prior industrial injuries has been of no concern since liability was shared between the last employer and the SIF See City and County of Denver v. Industrial Commission, 690 P.2d 199
(Colo. 1984); 2 Larson, Workmen’s Compensation Law, § 59.10 (states may be classified as “full responsibility” states, apportionment states by statute, or SIF states). In such cases §8-46-101 was applicable, and § 8-42-104(2), by its own terms, was inapplicable.
It is true that, in such cases as City and County of Denver v. Industrial Commission, supra, and Subsequent Injury Fund v. Thompson, supra, it has been stated that the SIF was expanded to encourage the hiring of disabled employees by mitigating the effects of the full responsibility rule. However, after the enactment of § 8-42-104(2) in 1963, there was no “full responsibility rule,” at least with respect to preexisting industrial disabilities. Rather, enactment of the expanded SIF could best viewed as an attempt to insure that workers with prior industrial disabilities received permanent total disability benefits on the same basis as workers with preexisting non-industrial disabilities. Cf. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995) (§8-42-104(2) addresses apportionment when the claimant has sustained multiple industrial disabilities).
We note that the legislative history attached to the SIF’s brief indicates that some members of the General Assembly believed that, if the SIF were eliminated, the “last employer” and its insurer would be liable for the entire amount of permanent total disability benefits in the event preexisting industrial disabilities combined with the last injury to produce permanent total disability. However, none of this legislative history addresses the express provisions of § 8-42-104(2), and the statute has not been repealed or, to our knowledge, modified by the force of any other statutory enactment. Consequently, we are not free to depart from the plain and ordinary meaning of § 8-42-104(2) by delving into legislative history which involved the SIF statute and occurred long after the enactment of § 8-42-104(2). Snyder Oil Co. v. Embree, supra. Further, we are not free to engage in judicial legislation by ignoring the statute and reaching some other result. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985).
It follows that the ALJ erred in ordering the CCIA to pay the entire amount of the claimant’s permanent total disability benefits. Section 8-42-104(2), taken with the ALJ’s findings concerning apportionment, establishes that the CCIA is liable for only thirty percent of the claimant’s permanent total disability benefits. Moreover, as we held in Haislip, § 8-42-104 (2) does not permit assignment of liability to any prior employer or insurer which, in this case, would be the respondents themselves. To the contrary, the respondents’ liability is measured by subtracting the percentage of preexisting partial disability from one hundred percent.
We note that the claimant filed a brief in this case, but subsequently withdrew it. Therefore, insofar as the claimant made other arguments in opposition to the respondents’ position, we consider those arguments to have been waived, and do not address them.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 17, 1995, is modified to provide that the respondents are liable for thirty percent of the claimant’s permanent total disability benefits.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed November 15, 1996 to the following parties:
Peter Stevens, 317 E. 7th St., Castle Rock, CO 80104
Denver Brick Company, Companies Agency, Inc., P.O. Box 1600, Castle Rock, CO 80104
Colorado Compensation Insurance Authority, Attn: Timothy Nemechek, Esq. (Interagency Mail)
Subsequent Injury Fund — (Interagency Mail)
Douglas R. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209-3014 (For the Claimant)
Clyde E. Hook, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227
(For the Respondent-Employer)
Roxane D. Baca, Esq., Attorney General’s Office, 1525 Sherman St., 5th Flr., Denver, CO 80203
(For SIF)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701
(For the Respondents)
By: _____________________