Opinion
W.C. No. 4-257-435
January 12, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ). The order calculated the claimant's average weekly wage to include the claimant's cost of continuing dependent health insurance coverage. The order also held it was proper to modify the claimant's average weekly wage after maximum medical improvement (MMI), for purposes of calculating the claimant's medical impairment benefits. We affirm.
I.
Section 8-40-201(19)(b), C.R.S. (2000), defines the term "wages" to include "the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan." Here, the ALJ held that the term "employer's group health insurance plan" includes employer health insurance which encompasses the claimant's dependents, as well as the claimant herself. The respondents contest this interpretation of the statute, and they argue it creates a "windfall to the claimant."
As the respondents recognize, we have previously rejected a similar argument. In Osinski v. The Humane Society of the Pikes Peak Region, W.C. No. 4-378-187 (May 15, 2000), we held the plain meaning of § 8-40-201(19)(b) incorporates the cost of health insurance coverage provided to the claimant's dependents in cases where the employer's "health insurance plan" allows such coverage. We reasoned that if the General Assembly wished to limit the statute to the cost of health insurance provided solely to the claimant, it could have used such limiting language. See Freemeyer, P.C. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA0814, December 7, 2000). The respondents advance no argument which persuades us to depart from Osinski, and we adopt its reasoning here.
Further, we reject the respondents' assertion that this interpretation results in a "windfall" to the claimant. The purpose of the statute is to ensure the claimant has sufficient funds to purchase health insurance. See Schelley v. Industrial Claim Appeals Office, 961 P.2d 547 (Colo.App. 1997). Where, as here, a portion of the claimant's compensation package includes dependent health insurance coverage at group rates, the General Assembly could reasonably conclude that loss of dependent coverage should be compensated by the workers' compensation system.
II.
The respondents next contend the ALJ erred because he adjusted the claimant's average weekly wage, for the purpose of calculating medical impairment benefits, after the claimant reached maximum medical improvement (MMI). The respondents argue that changes in the claimant's cost of obtaining similar or lesser health insurance should not affect the calculation of permanent disability benefits.
We have previously rejected the argument advanced by the respondents. In Steele v. City of Thornton, W.C. No. 4-304-067 (December 2, 1998), and Kenney v. BI Incorporated, W.C. No. 4-276-317 (October 9, 1998), we held that because the claimant's average weekly wage is a factor used in calculating temporary total disability benefits under § 8-42-105(1), C.R.S.(2000), and, therefore, permanent medical impairment benefits under § 8-42- 107(8)(d), C.R.S. 2000, post-MMI changes in the average weekly wage caused by changes in the claimant's cost of procuring health insurance must be considered in calculating medical impairment benefits. In Kenney, we observed that Schelly v. Industrial Claim Appeals Office, supra, involved a post-MMI change in the claimant's permanent total disability benefits based on a change in the claimant's cost of procuring health insurance. In Schelly, the post-MMI change in the average weekly wage benefited the respondents because the claimant became eligible for Medicare coverage, which was substantially less expensive than private health insurance. Further, this conclusion is consistent with the concept that the purpose of determining the average weekly wage is to fairly approximate the claimant's wage loss, and such determinations may change with the passage of time. Campbell v. IBM Corp. 867 P.2d 77 (Colo.App. 1993). We decline to depart from the holdings in the Steele and Kenney cases.
We are not persuaded by the respondents' attempt to distinguish between adjustments in the average weekly wage for purposes of temporary disability benefits and adjustments for purposes of permanent disability benefits. Although there are differences in the statutory methods used for calculating these benefits, temporary disability and permanent disability benefits are both designed to compensate for the claimant's loss of earning capacity. See Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Because the General Assembly has seen fit to incorporate the claimant's average weekly wage, and hence the cost of procuring health insurance, into calculation of both types of benefits, we see no basis for creating a different method of determining the average weekly wage when the issue involves temporary rather than permanent disability benefits. Cf. Moses v. Digital Equipment Corp., W.C. No. 4-336-048 (April 15, 1999) (applying changes in average weekly wage to medical impairment benefits).
IT IS THEREFORE ORDERED that the ALJ's order dated March 13, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
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. 2000. 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 January 12, 2001 to the following parties:
Mary E. Gutierrez, P. O. Box 545, LaSalle, CO 80645
Plan De Salud Del Valle, Inc., 1115 2nd St., Ft. Lupton, CO 80621-1745
Curt Kriksciun, Esq., Pinnacol Assurance (CCIA) — Interagency Mail (For Respondents)
Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)
David Krivit, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy