W.C. No. 4-630-784.Industrial Claim Appeals Office.
January 23, 2006.
FINAL ORDER
The respondents seek review of an order dated September 15, 2005 of Administrative Law Judge Stuber (ALJ) that included in the claimant’s average weekly wage (AWW) the cost for COBRA continuation of the employer’s group health and dental insurance coverage. We affirm.
The essential facts are undisputed. The claimant suffered a disabling industrial injury while employed by U.S. Waste Industries, Inc. At the time of the injury, the employer provided health and dental insurance benefits for the claimant and his family as part of the employer’s group health insurance plan. After the termination of claimant’s employment, the employer ceased to provide dental and health insurance benefits. The employer notified the claimant that the COBRA amount for continuation of his insurance would be $930.06 per month. The claimant made a couple of payments toward continued health insurance coverage, but then ceased to pay premiums because he could not afford it.
Relying on Ray v. Industrial Claim Appeals Office,
___ P.3d ___(Colo.App. No. 04CA2261, July 14, 2005), the ALJ determined that the claimant’s cost of continuing the employer’s group health insurance plan must be included in the AWW and then, at the expiration of the allowed term for continued coverage, the cost of conversion to a similar or lesser plan must be included in the average weekly wage. Consequently the ALJ found the claimant was entitled to inclusion of the COBRA amount of $930.06 per month, or $214.63 per week, in his AWW.
On review the respondents principally rely on Midboe v. Industrial Claim Appeals Office, 88 P.3d 643 (Colo.App. 2003), in contending that the ALJ erred in including the COBRA amount in the claimant’s AWW. The respondents argue that because the claimant did not purchase the COBRA coverage offered by the employer, the ALJ should have refused to include the replacement cost of health insurance in the claimant’s AWW.
The claimant contends, inter alia, that the ALJ correctly decided the issue based upon the court of appeals’ announcement of Ray v. Industrial Claim Appeals Office, supra we agree. I Ray the court concluded that we erroneously determined the AWW could only be increased to include the cost of replacement health insurance only when the record proves the claimant actually continued, converted or replaced the group health insurance previously provided by the employer. The Ray court reasoned that the General Assembly did not define the word “cost” in the Workers’ Compensation Act. Further, the court noted that the ordinary meaning of the term “cost” does not require payment to have been made and can refer to the “stated charge or price for something.”. Therefore, the court held that the “the express statutory language” of § 8-40-201(19)(b) does not require proof that the claimant actually purchased replacement coverage.
Further, the Ray court cited Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546
(Colo.App. 2001), in support of its conclusion that the statute merely seeks to ensure the claimant has funds available to purchase replacement insurance. Consequently, the court held that the amount of the claimant’s cost of continuing employer’s group health insurance plan must be included to determine the AWW and at the expiration of the continued coverage, the amount of the claimant’s cost of conversion to a similar or lesser plan must be included.
In Ray v. Industrial Claim Appeals Office, the court concluded that Midboe did not address the situation where the claimant’s employment has been terminated and the claimant is required to purchase a continuing policy and then convert to an individual health insurance plan. Therefore, the court concluded that Midboe was restricted to its facts. We also note that in two unpublished decisions, the court elected to follow Ray
rather than Midboe under circumstances where the claimant declined to purchase continuing insurance. Ashmore v. Industrial Claim Appeals Office, No. 04CA1870 (Colo.App. July 21, 2005) (not selected for publication); Carmody v. Industrial Claim Appeals Office No. 04CA2672(Colo.App. August 4, 2005) (not selected for Publication).
Here, as in Ray v. Industrial Claim Appeals Office, supra,
the employer terminated the claimant’s group health insurance coverage after discharging the claimant from employment and offered continuing coverage through COBRA. However, the claimant did not pay for COBRA insurance. We are persuaded by the court’s conclusions in Ray that under these circumstances, the ALJ correctly included the cost of continued coverage in the claimant’s AWW. The Supreme Court of Colorado has granted writs of certiorari in Marsh v. Industrial Claim Appeals Office No. 04CA0911 (August 4, 2005) (no selected for publication); and Ray v. Industrial Claim Appeals Office. supra, on this issue. We conclude that as the Court of Appeals directed us in Carmody, supra, and pending further guidance from the Colorado Supreme Court, the rule of Ray should control. We affirm ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 15, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Tom Schrant
Ronald Wantland, Jr., Pueblo, CO, U.S. Waste Industries, Inc., Pueblo, CO, Renee C. Ozer, Esq., Colorado Springs, CO (For Claimant).
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail (For Respondents).