Opinion
W.C. No. 4-548-600.
June 9, 2005.
FINAL ORDER
The claimant seeks review of an order of summary judgment entered by Administrative Law Judge Stuber (ALJ), which granted the respondents' petition to modify the claimant's average weekly wage (AWW) and temporary disability (TTD) rate. We affirm.
The following facts are undisputed. The claimant suffered an admitted injury in 2002. At the time of the injury, the claimant's AWW was $500, which produced a TTD rate of $333.33. The employer also provided group health insurance at no cost to the claimant.
The claimant was subsequently discharged from the employment and as a result, the group health insurance was discontinued. The respondents filed an amended General Admission of Liability which increased the TTD rate to $371.49 including the COBRA cost of replacement health insurance. However, the claimant did not purchase replacement insurance on grounds he could not afford to pay the monthly premium. Consequently, the respondents petitioned to reduce the AWW by the amount of the COBRA insurance.
The ALJ found no genuine issue of material fact. Further, the ALJ determined the respondents were entitled to summary judgment granting the petition to modify. In support, the ALJ expressly relied on Midboe v. Industrial Claim Appeals Office, 88 P.3d 643 (Colo.App. 2003), and Marsh v. Sunnyrest Health Care, W.C. Nos. 4-536-309; 4-536-314 (April 23, 2004), to find that regardless of the claimant's contention he could not afford the COBRA insurance premium, the failure to purchase replacement health insurance precludes inclusion of the COBRA amount in the AWW. The ALJ also rejected the claimant's contention that Midboe is factually distinguishable because the claimant in Midboe remained employed. Consequently, the ALJ modified the claimant's TTD rate to $333.33 per week effective February 8, 2005.
On review the claimant does not dispute the ALJ's factual determinations. Nevertheless, the claimant argues the ALJ erroneously denied an evidentiary hearing on the issues. The claimant also contends Midboe was wrongly decided, and alternatively renews his contention that Midboe is factually distinguishable. We disagree.
Due process requires that where there are disputed issues of material fact, the parties be afforded a reasonable opportunity in which to present evidence and confront adverse evidence. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, summary judgment is proper where the alleged facts, even if true, would not present a basis for granting the requested relief. Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969); Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995). In other words, summary judgment is proper where the moving party is entitled to judgment as a matter of law. C.R.C.P. 56; Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (C.R.C.P. apply insofar as not inconsistent with the procedural or statutory provisions of the Workers' Compensation Act); Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995).
Here, the record amply supports the ALJ's finding that there were no disputed issues of material fact to warrant an evidentiary hearing. Indeed the ALJ accepted as true, the claimant's contention that he could not afford to spend over $200 of his TTD benefits to purchase replacement health insurance. Further, the undisputed facts support the ALJ's determination that the respondents were entitled to reduce the claimant's AWW.
Section 8-40-201(19)(b), C.R.S. 2004, provides that the term wages shall include:
"the amount of 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."
In Schelly v. Industrial Claim Appeals Office, 961 P.2d 547 (Colo.App. 1997), a panel of the court reasoned that the statute was enacted to insure that disabled claimants would have access to funds for the purchase of `similar or lesser' health insurance when the employer no longer pays part of the premium for such insurance. However, the court expressly refused to consider whether the cost of insurance is included in the AWW if the injured worker does not actually purchase substitute insurance.
The claimant places substantial reliance on the subsequent decision in Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546, 549 (Colo.App. 2001), where the court stated, "the statute does not require proof that the claimant has actually purchased coverage" in order for health insurance to be included in the AWW. However, the Humane Society decision was rendered before Midboe.
The Midboe court concluded that the terms "continuing" and "conversion" in § 8-40-201(19)(b), are specialized terms of art derived from the Consolidated Omnibus Budget and Reconciliation Act of 1985 currently codified at § 10-16-108 C.R.S. 2004. Then based on upon that specialized meaning, the court held that under § 8-40-201(19)(b) "a claimant's AWW includes the cost of health insurance only when a claimant has `continued' the employee's coverage at his or her own expense." 88 P.3d at 646.
Admittedly, the facts in Midboe v. Industrial Claim Appeals Office, supra, were different from the circumstances presented here because the Midboe claimant remained employed with the employer in whose employment he was injured and the employer continued to pay a portion of the insurance. Nevertheless, we agree with the ALJ that Midboe is equally applicable where the claimant is discharged from the employment where the injury occurred.
The Midboe court expressly rejected an argument that Humane Society compelled a contrary result. Instead, the court in Midboe concluded that Humane Society "simply acknowledged" the statutory requirement that the employee's "entire cost" of COBRA including "dependent coverage" was includable in the AWW.
Accordingly, in Ashmore v. Nu Horizon Window Systems, Inc., W.C. No. 4-593-027 (August 25, 2004), we read Midboe to mean that once the issue of "continuation" arises after termination of the employer's plan, the claimant must comply with COBRA by electing and paying for coverage or, as was the case in Midboe, there is no "cost" of "continuation."
Our conclusion is buttressed by Gonzales v. Industrial Claim Appeals Office, (Colo.App. No. 03CA2381, July 22, 2004) (not selected for publication), where a panel of the court upheld our order in Gonzales v. City of Fort Collins, W.C. No. 4-365-220 (November 20, 2003). The Gonzales court concluded the General Assembly was presumably aware when it enacted the statute that inclusion of COBRA coverage in AWW would be dependent on enrollment at the time of termination. Therefore, the court held that the cost of family health coverage, which claimant carried at time of injury, was not includable in the AWW because the family was not enrolled at the time the health insurance was terminated as required by COBRA.
For these reasons, the claimant's arguments do not persuade us to depart from our conclusions in Marsh and Ashmore. Therefore, we disagree the ALJ misapplied the law in granting the petition to modify.
Finally, insofar as the claimant contends § 8-40-201(19)(b) is unconstitutional, we lack jurisdiction to consider that argument. Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated February 8, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Curt Kriksciun
Anthony Trujillo, Pagosa Springs, CO, Hogue's Glass of Pagosa, Inc., Pagosa Springs, CO, Legal Department, Pinnacol Assurance — Interagency Mail Bethiah Beale Crane, Esq., Durango, CO, (For Claimant).
T. Paul Krueger, II, Esq. and Sean M. Knight, Esq., Denver, CO, (For Respondents).