Opinion
W.C. No. 4-532-915
June 16, 2004
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Henk (ALJ) insofar as it awarded 12 weeks of mental impairment benefits. The respondent contends the benefits should have been offset by the claimant's receipt of temporary total disability (TTD) and temporary partial disability (TPD) benefits paid because of the claimant's physical impairment and consequent inability to return to regular employment. We affirm.
The essential facts are undisputed. On February 14, 2002, the claimant sustained a compensable injury to her right lower extremity. Apparently, the wound became infected and the claimant ultimately underwent a skin grafting procedure. The claimant received TTD and TPD benefits from February 14 until August 8, 2002.
The claimant was finally placed at maximum medical improvement on March 10, 2003. The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician assessed a rating of 9 percent impairment of the lower extremity and 3 percent whole person impairment for a psychological component. The ALJ found that none of the temporary disability benefits were paid "as a result of the psychological component of [the claimant's] injury."
The respondent argued that the permanent mental impairment benefits payable for the psychological rating should be totally offset by the TTD and PPD benefits paid to the claimant. However, the ALJ interpreted § 8-41-301(2)(b), C.R.S. 2003, as limiting the offset to temporary benefits "paid as a result of the mental impairment." Consequently, the ALJ held no offset is appropriate and awarded a full twelve weeks of mental impairment benefits.
On review, the respondent reiterates the argument that the "plain meaning" of § 8-41-301(2)(b) is that mental impairment benefits must be limited to twelve weeks inclusive of all TTD and TPD benefits, regardless of the reason such temporary benefits were paid to the claimant. The respondent bases this argument on the statutory language providing that mental impairment benefits "shall be limited" to twelve weeks "inclusive of any temporary disability benefits." The respondent further argues this reading of the statute is consistent with the holding in City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995), and serves the legislative intent of reducing costs associated with claims for mental impairment. We disagree with the respondent's arguments.
We agree with the respondent's contention that the mental impairment statute now applies to claims such as this where the "stimulus" to the permanent psychological disability is a physical injury. Section 8-41-301(2)(a.5), C.R.S. 2003. Subsection (2)(a.5), which became effective July 1, 1999, and applies to injuries on or after that date, represents an expansion of the mental impairment statute which was formerly limited to cases involving a purely "mental stimulus" to psychological injury. 1999 Colo. Sess. Laws, ch. 103 at 300; Chavarria v. Dayton Hudson Corp., W.C. No. 4-492-078 (June 5, 2003).
The pertinent portion of § 8-43-301(2)(b) provides as follows:
Notwithstanding any other provision of articles 40 to 47 of this title, where a claim is by reason of mental impairment, the claimant shall be limited to twelve weeks of medical impairment benefits which shall be in an amount not less than one hundred fifty dollars per week and not more than fifty percent of the state average weekly wage, inclusive of any temporary disability benefits.
The principal objective of statutory construction is to effect the legislative intent. The words and phrases in the statute are the best indicators of legislative intent, and for that reason should be given their plain and ordinary meanings. Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo.App. 2002). However, the words and phrases of the statute cannot be read in isolation, but instead must be read as a whole so as to give them a consistent and harmonious meaning. Department of Labor and Employment v. Esser, 30 P.3d 189 (Colo. 2001). The statute should be liberally construed to effect its beneficent purpose. Davison v. Industrial Claim Appeals Office, 84 P.3d 1023, 1029 (Colo. 2004). Finally, if the courts have interpreted a statute and the General Assembly revisits the statute without modifying the statutory language, it is presumed the General Assembly has endorsed the judicial interpretation. Spanish Peaks Mental Health Center v. Huffaker, 928 P.2d 741 (Colo.App. 1996).
Contrary to the respondent's argument concerning the "plain meaning" of subsection (2)(b), we have previously held that temporary disability paid for reasons not involving mental impairment are not subject to offset against permanent disability benefits payable for mental impairment. Ramos v. Sears Distribution Center, W.C. No. 4-467-734 (January 22, 2004). Central to our holding in Ramos was the Supreme Court's decision in City of Thornton v. Replogle, supra. In Replogle, the court interpreted the predecessor to § 8-43-203(2)(b), which is identical to the current statute in all material respects. The Replogle court stated that the statute means the "the dollar amount of any temporary disability benefits which the claimant receives for any mental impairment must be offset against the weekly dollar amounts authorized for permanent disability benefits under section 8-42-301." 888 P.2d at 785 (Emphasis added). Thus, we stated in Ramos that subsection (2)(b) "contemplates an examination of the reason for the temporary disability benefits and only temporary disability benefits paid on account of mental impairment are subject to the offset against permanent disability benefits."
Although the issue in Replogle was whether § 8-43-301(2)(b) imposes a twelve week limitation on TTD benefits payable for mental impairment, not whether TTD benefits which are paid because of physical disability may be offset against permanent mental impairment benefits, Replogle is instructive concerning the later issue. The Replogle court recognized that "mental impairment benefits" may be paid for both temporary and permanent disability, and are not synonymous with "medical impairment" benefits which are payable for permanent disability only. Id. at 785. Thus, it was logical for the Replogle court to read the statute in its entirety and interpret the phrase "inclusive of any temporary disability benefits" as referring to TTD and TPD benefits payable because of mental impairment. Put another way, subsection (2)(b) establishes a limitation on claims for "mental impairment" benefits payable for permanent disability, and therefore, it is reasonable to conclude that the offset for "any" TTD benefits paid also refers to TTD benefits paid for "mental impairment." We conclude, consistent with the holdings in Replogle and Ramos, that the respondent's proposed reading of subsection (2)(b) too narrowly focuses on individual words of the statute and does not give a consistent and harmonious reading to the entire provision.
Moreover, the General Assembly amended § 8-43-301(2)(b) in 1999. The amendments, which were enacted after the Replogle decision, did not change the statutory language interpreted in Replogle. Thus, we conclude the General Assembly has implicitly endorsed the Replogle court's interpretation of the statute. Spanish Peaks Mental Health Center v. Huffaker, supra.
Finally, we disagree with the respondent that its interpretation of the statute best effects the legislative intent. It is true that one of the primary purposes of subsection (2)(b) is to reduce insurance costs by limiting expenditures for claims based on mental impairment. The General Assembly recognized that such claims can be quite expensive even though the cause of mental impairment may be difficult to prove. Davison v. Industrial Claim Appeals Office, supra (purpose of statute is to reduce frivolous claims for mental impairment by imposing heightened standard of proof); City of Thornton v. Replogle, 888 P.2d at 785 (limitation on mental impairment benefits was cost cutting measure).
However, if it is proven that the temporary disability was caused by a physical inability to perform the pre-injury employment, not an alleged mental impairment, the theoretical basis for a reduction in permanent mental impairment benefits is undermined. If the claimant is temporarily disabled because of a physical inability to perform regular employment, there is no reason to be concerned that the overall benefits will be inflated based on a fraudulent or unprovable claim for mental impairment. Contrary to the respondent's assertion, no "double recovery" of mental impairment benefits occurs in this situation.
We reject the respondent's contention that our interpretation of the statute will encourage claimants to dissemble concerning the cause of their disability. To the extent this is a problem, the adversarial hearing process affords adequate protection. The respondent's remaining arguments are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated December 23, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona HalseyNOTICE
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on June 16, 2004 by A. Hurtado.
Eve Banuelos, 20367 E. 41st Pl., Denver, CO 80249
Debbie Dunst, Safeway, Inc., P. O. Box 5927 T. A., Denver, CO 80217
DIME Unit, Tower 2, #640, Division of Workers' Compensation — Interagency Mail
Neil D. O'Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Eric J. Pollart, Esq., 5600 S. Quebec St., #130-D, Greenwood Village, CO 80111 (For Respondent)