Opinion
W.C. No. 4-126-533
April 12, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which awarded permanent partial disability benefits of $3,588, payable at a rate of $150 per week, based upon a scheduled disability under § 8-42-107(2)(w), C.R.S. (1995 Cum. Supp.). We affirm.
The claimant was a minor at the time he suffered a compensable injury to his hip. The claimant's primary care physician rated the claimant's impairment as 11.5 percent of the lower extremity. Neither party disputed the impairment rating, and the respondents admitted liability for the payment of scheduled disability benefits in the amount of $3,588 payable at a rate of $150 per week.
The sole issue before the ALJ was the proper calculation of the claimant's permanent partial disability benefits. The ALJ determined that the claimant is entitled permanent partial disability benefits of $3,588, which he computed by multiplying the claimant's impairment by 208 weeks and multiplying that number by $150 per week.
On appeal, the claimant contends that the ALJ's computation is contrary to § 8-42-102(4), C.R.S. (1995 Cum. Supp.). That statute provides that where a claimant who was a minor at the time of an industrial injury, sustains permanent disability, benefits for permanent disability "shall be paid at the maximum rate of compensation payable under said articles." (Emphasis added). The claimant argues that the term "maximum rate of compensation payable under said articles" means the maximum amount payable for a scheduled disability. Therefore, the claimant contends that he is entitled to permanent partial disability benefits in the amount of $31,200 which represents the maximum amount payable under the schedule of disabilities. We reject this argument.
The meaning of the term "maximum rate of compensation payable under said articles" was resolved by the court in DeJiacomo v. Industrial Claim Appeals Office, 817 P.2d 552 (Colo.App. 1991). Therefore, we conclude that DeJiacomo is dispositive of the claimant's argument.
As stated in DeJiacomo, § 8-42-102(4) was enacted to address the disparity created between young workers and adults when an injured worker's disability benefits are calculated from the injured worker's average weekly wage. Specifically, the legislature recognized that minors generally earn less than adults, and that a minor's permanent disability extends over a longer working life than that of disabled adults. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995); Mills v. Guido's, 800 P.2d 1370, 1372 (Colo.App. 1990). Therefore, the General Assembly intended to minimize the disparity by requiring that disability payments to minors be paid at the maximum rate allowed by law. Golden Animal Hospital v. Horton, supra; Mills v. Guido's, supra.
The injured minor in DeJiacomo suffered permanent partial disability of 6 percent of the whole person. The claim was governed by former § 8-42-110(1)(b), C.R.S. (1990 Cum. Supp.), [repealed and reenacted with amendments at § 8-42-107 effective July 1, 1991], which provides for an award of permanent partial disability benefits up to $37,560, calculated by multiplying the claimant's life expectancy by $120 per week and multiplying that number by the percentage of permanent disability the claimant sustained.
In the context of permanent disability benefits, the DeJiacomo court concluded that the phrase "maximum rate of compensation payable under the articles" referred to the maximum rate payable for permanent partial disability benefits. The court noted that former § 8-42-110(1)(b) did not provide a "maximum rate of compensation." Instead, the statute provided for a standardized fixed rate of $120 per week. Therefore, the DeJiacomo court concluded that the "maximum rate of compensation payable" under § 8-42-110(1)(b) was $120 per week.
Here, the ALJ expressly recognized that the applicable statute provides only one "rate" of compensation for all scheduled disabilities, and that rate is $150 per week. Therefore, we agree with the ALJ that the claimant is limited to scheduled disability benefits calculated at a rate of $150 per week.
In reaching this conclusion, we recognize the claimant's argument that the DeJiacomo construction treats minors who suffer scheduled disabilities differently than minors who sustain "whole person" impairment which is compensated under § 8-42-107(8), C.R.S. (1995 Cum. Supp.). However, § 8-42-102(4) does not require that all minors be treated the same. Rather, the purpose of § 8-42-102(4) is to reduce the disparity between benefits paid to injured minors and injured adults.
Furthermore, the DeJiacomo court noted that where the statute provides for a fixed rate of compensation there is no disparity is between benefits paid to minors and adults because both are paid at the same rate. 817 P.2d at 554; Golden Animal Hospital v. Horton, supra. However, to the extent that a "fixed rate" of compensation to minors is inconsistent with, and cannot be harmonized with the goal of § 8-42-102(4), the DeJiacomo court stated that the statute most recently enacted controls. 517 P.2d at 554, citing Peterson v. Kester, 791 P.2d 1185 (Colo.App. 1989).
Section 8-42-102(4) was originally enacted in 1943. See 1943 Colo. Sess. Laws, ch. 132 at 419; Mills v. Guido's, supra. In contrast, § 8-42-107(6) was adopted in 1988. See 1988 Colo. Sess. Laws, ch. 51, § 8-51-104 at 289. Therefore, § 8-42-107(6), which requires the payment of scheduled disability benefits payable at a rate of $150 per week, governs the rate of compensation payable to the claimant.
Our conclusion necessarily rejects the claimant's argument that he is entitled to benefits equal to the maximum amount payable for the impairment of a lower extremity. Contrary to the claimant's argument, the term "rate" does not refer to the aggregate amount of benefits allotted by statute, but the rate at which benefits are paid. Golden Animal Hospital v. Horton, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated July 31, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed April 12, 1996 to the following parties:
George Williams, 18 Old Ironside Way, Charlestown, MA 02129
Black Roofing Co., P.O. Box 440638, Aurora, CO 80044-0638
Colorado Compensation Insurance Authority, Attn: P. Tochtrop, Esq. (Interagency Mail)
Margaret D. Keck, Esq., 1873 S. Bellaire St., Ste. 1400, Denver, CO 80222 (For the Respondents)
Roger D. Fraley, Esq., 3113 E. Third Ave., Ste. 200, Denver, CO 80206 (For the Claimant)
BY: _______________________