W.C. No. 4-341-950Industrial Claim Appeals Office.
March 9, 2000
FINAL ORDER
The claimant seeks review of a Supplemental Order of the Director of the Division of Workers’ Compensation concerning a lump sum award of permanent partial disability benefits. The claimant alleges the Director erred in refusing to order that the balance of permanent partial disability benefits be paid at the rate of $257.38 per week. We disagree, and therefore, affirm.
The record reveals a Final Admission of Liability for the payment of permanent partial disability benefits of $62,058.32, commencing December 28, 1998, and continuing through August 11, 2003, at the rate of $257.38 per week. The respondent-insurer made a $10,000 lump sum payment pursuant to § 8-42-107(8)(d), C.R.S. 1999, and additional periodic payments in the amount of $5,735.13.
Thereafter, the claimant applied for a lump sum award under section § 8-43-406(1), C.R.S. 1999. On July 16, 1999, the Director issued a lump sum award for $27,560 and ordered the respondent-insurer to pay the balance of permanent partial disability benefits at the rate of $88.57 per week. The claimant timely appealed.
On December 6, 1999, the Director issued the Supplemental Order affirming the July 16 lump sum award. The claimant filed a timely petition to review for review of the Supplemental Order, which alleged the Director abused her discretion in allowing the respondents to pay the remaining permanent partial disability at the rate of $88.57 per week. The claimant argues that under §8-42-107(8)(d), the remaining benefits must be paid at the rate of $257.38 per week. The claimant contends that there is no statutory authority which allows the Director to determine the weekly rate at which benefits are to be paid, and the Director’s findings of fact are inadequate to support her calculation of the lump sum award. We disagree.
§ 8-43-406(1) provides that the Director:
“may order payment of all or any part of the compensation awarded in a lump sum, or in such manner as the director may determine to be for the best interests of the parties concerned.”
Subsection 8-43-406(2) states that in the case of permanent partial disability, the claimant may receive a lump sum award not to exceed $37,560 based on the present worth of the aggregate award considering interest of 4 percent per annum.
There is no statutory right to receive a lump sum award under § 8-43-406(2). Rather, the Director has discretion to determine whether a lump sum payment is in the best interests of the parties. See Warren v. Southern Colorado Excavators, 862 P.2d 966
(Colo.App. 1993). The statute allows the Director to determine not only whether to award a lump sum but also the “manner” in which the lump sum is to be paid.
§ 8-43-406(2) also provides that the Director’s order “shall be final and not subject to review.” This provision has been interpreted to mean that the Director’s order may not be modified on appellate review in the absence of an abuse of discretion, as where the order is predicated on a factor having no relation to the best interests of the parties, or is in excess of the authority granted by the statute. See Warren v. Southern Colorado Excavators, supra. The standard on review of an alleged abuse of discretion is whether the Director’s order exceeds the bounds of reason, such as where it is not supported by the evidence or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Here, the Director calculated the lump sum award based on the present day value of the aggregate liability for permanent partial disability benefits. The Director also determined that requiring the balance of benefits to be paid at the rate of $257.38 per week would require the respondent-insurer to pay benefits prior to the due date without any discount. The Director determined that in view of the two lump sum awards granted to the claimant, which equal the maximum lump sum payments available to the claimant, it was not in the best interests of the parties to order the payment of further permanent partial disability benefits prior to the due date. Therefore, the Director distributed the respondent-insurer’s liability for all further permanent partial disability benefits over the period of time the benefits are payable under the Final Admission of Liability.
The claimant’s arguments notwithstanding, the Director’s order reflects her consideration of the relevant factors and does not exceed the bounds of reason. Therefore, we cannot say the Director abused her discretion in refusing to order that the unpaid balance of benefits be paid at a higher rate.
Moreover, we disagree with the claimant’s contention that the Director’s order is contrary to the requirements of §8-42-107(8)(d). We rejected a similar argument, in Abeyta v. Art C. Klein Construction Inc, W.C. No. 4-242-754 (October 21, 1996).
§ 8-42-107(8)(d) provides that medical impairment benefits shall be paid at the temporary total disability rate. The statute also provides that up to $10,000 of a permanent partial disability award shall “automatically” be paid in a lump sum upon request to the insurer. Under subsection 8-42-107(8)(d) the remaining periodic payments of any such award shall be “paid at the temporary total disability rate but not less than one hundred fifty dollars per week and not more than fifty percent of the state average weekly wage.”
In Abeyta v. Art C. Klein Construction Inc., supra, we concluded that the statutory language in § 8-42-107(8)(d) concerning the payment rate for the “remaining periodic payments of such award,” pertains to the payment of the balance of medical impairment benefits less any lump sum requested and paid under subsection (8)(d). However, the statute does not purport to dictate the rate of payment where the claimant subsequently requests a lump sum award from the Director under § 8-43-406(1). Accordingly, in Abeyta, we concluded that § 8-43-406(1) is independent of § 8-42-107(8)(d) and is not subject to the payment provisions in § 8-42-107(8)(d).
We are not persuaded by the claimant’s arguments to depart from our conclusions in Abeyta. Therefore, we conclude the Director did not err in refusing to order the respondent-insurer to pay all remaining permanent partial disability benefits at the rate of $257.38 per week.
IT IS THEREFORE ORDERED that the Director’s Supplemental Order dated December 6, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 9, 2000 to the following parties:
David A. Turner, 526 Willow Valley, Lamar, CO 81052
Mark Garner, d/b/a Expert Painting, 4732 Sweetgrass Lane, Colorado Springs, CO 80922-2216
Michael W. Sekar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For Claimant)
Laurie A. Schoeder, Esq., Legal Dept., Colorado Compensation Insurance Authority (Pinnacol Assurance) — Interagency Mail
BY: A. Pendroy