W.C. No. 4-238-099Industrial Claim Appeals Office.
April 13, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ), which awarded permanent total disability benefits. The respondents contend that the ALJ erred insofar as he required them to pay a two percent annual cost of living allowance (COLA) under § 8-42-111(4), C.R.S. 1997. We agree, and therefore, reverse.
On appeal it is undisputed that the claimant is permanently and totally disabled as a result of several industrial injuries, the last of which occurred in 1992 during his employment for the Pool Company. The respondents stipulated that Pool Company and its insurer, Reliance National Indemnity Company, are liable for 38 and 1/3 percent of the claimant’s permanent total disability and the Subsequent Injury Fund is liable for 61 and 2/3 percent of the disability.
At the time of the 1992 injury, the claimant’s average weekly wage was $644, which results in a temporary disability rate exceeding the maximum rate allowed by § 8-42-105 C.R.S. 1997. As of August 24, 1997, when the claimant reached maximum medical improvement, the maximum temporary disability rate was $395.71.
The ALJ ordered the respondents to pay permanent total disability benefits at the rate of $395.71 per week apportioned in accordance with their stipulation. The ALJ also required the respondents to increase the claimant’s benefits in accordance with § 8-42-111(4), which states:
“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.”
Section 8-42-111(1), C.R.S. 1997, 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)
Section 8-42-105(1), C.R.S. 1997, concerning temporary total disability benefits, provides as follows:
“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)
Initially, we reject the respondents’ contention that the COLA increase was not properly before the ALJ for adjudication. We consider the application of the 2 percent COLA increase inherent to the ALJ’s determination of the amount of permanent total disability benefits payable to the claimant. Cf. Ryan v. Safeway Inc., W.C. No. 4-127-950 (December 8, 1997) (SIF offset inherent in issue of liability for permanent total disability).
However, the respondents further argue that § 8-42-111(1) operates as a cap on the amount of benefits which the claimant can receive under § 8-42-111(4). Accordingly, the respondents contend that where, as here, the claimant’s average weekly wage entitles him to the maximum rate of disability benefits, the claimant is not entitled to the COLA adjustment.
In contrast, the claimant contends that § 8-42-111(1) only limits the “base-line” for permanent total disability benefits, and that the COLA increases apply to the base-line rate and serve to reduce the inflationary erosion of the base-line benefit rate. Alternatively, the claimant argues that § 8-42-111(1) and §8-42-111(4) are in direct conflict and cannot be reconciled. Therefore, the claimant argues that § 8-42-111(4), which was enacted after § 8-42-111(1), controls. We are not persuaded by these contentions, and agree with the respondents.
In Nelson v. Payless Drug Stores, Inc., W.C. No. 4-190-449
(December 30, 1997), we concluded that the COLA increase provided for in § 8-42-111(4) is subject to the overall benefit ceiling for permanent total disability benefits. We stated:
“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).”
The claimant’s arguments do not persuade us to reconsider our conclusions in Nelson. Consequently, we reject the claimant’s contention that § 8-42-111(4) increases the maximum rate of permanent total disability benefits allowed by § 8-42-111(1). We also necessarily reject the claimant’s contention that §8-42-111(1) and § 8-42-111(4) are in direct conflict.
Section 8-42-105(1) limits compensation for temporary total disability benefits to ninety-one percent of the state average weekly wage. Thus, it follows that the maximum permanent total disability rate is ninety-one percent of the state average weekly wage.
Here, there is no dispute that the claimant’s average weekly wage without the COLA increase yields a temporary disability rate in excess of ninety-one percent of the state average weekly wage. The claimant also concedes that the maximum temporary total disability rate as of August 24, 1994 was $395.71. Therefore, the maximum compensation rate for permanent total disability benefits as of August 24, 1994, was also $395.71, and the ALJ erred in requiring the respondents to pay any COLA increase which would exceed that amount.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 17, 1997, is reversed insofar as it requires the respondents to increase the claimant’s permanent total disability benefits as provided by § 8-42-111(4).
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 13, 1998 to the following parties:
Raymond E. Thompson, Sr., 24998 County Road F, Cortez, CO 81321-9534
Pool Company, c/o Eliot Wiener, Esq., 999 18th St., Ste. 3100, Denver, CO 80202
Reliance National Indemnity Co., c/o Lindsey Morden Claims Service, 7430 E. Caley Ste. 110, Englewood, CO 80111
Special Funds Unit, Attn: Barbara Carter (Interagency Mail)
Bethiah Beale Crane, Esq., 575 E. College Dr., Durango, CO 81301 (For the Claimant)
Eliot Wiener, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
Roxane D. Baca, Esq., Office of the Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
BY: _______________________