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In the Matter Of. Casas v. Burgers, W.C. No

Industrial Claim Appeals Office
Oct 14, 2011
W.C. No. 4-770-460 (Colo. Ind. App. Oct. 14, 2011)

Opinion

W.C. No. 4-770-460.

October 14, 2011.


FINAL ORDER

The respondents seek review of an order of Administrative Law Judge Edwin L. Felter, Jr. (ALJ) dated March 30, 2011, that increased the claimant's average weekly wage (AWW) for purposes of calculating permanent partial disability (PPD) benefits. We modify and otherwise affirm the order.

A hearing was held on the issue of whether the claimant's replacement cost of health insurance should be included in the AWW for purposes of calculating PPD. The parties stipulated and the ALJ found that the claimant's health insurance benefits were terminated on March 26, 2010 and that the replacement cost of the claimant's health insurance benefits was $213.65 per week. The ALJ found that the claimant was placed at maximum medical improvement (MMI) on April 6, 2010. Based upon these findings, the ALJ concluded that the replacement cost of the claimant's health insurance should be included in the claimant's AWW for purposes of calculating PPD.

I.

The respondents now appeal. The respondents initially contend that the ALJ's MMI finding was a violation of due process because the ALJ addressed issues that were not before him and contrary to stipulated facts. The respondents allege that the correct MMI date is March 23, 2010. The respondents listed March 23, 2010 as the MMI date on the September 8, 2010, final admission. March 23, 2010 was the "Date of Service" noted on Dr. Holthouser's report.

At hearing there was unquestionably some confusion surrounding the date of MMI. At the beginning of the hearing the ALJ stated, "So, there's no dispute as to the MMI date of April 6, 2010?" (Tr. at 4). The claimant's counsel stated that was correct. (Tr. at 4). The respondents did not correct the ALJ's statement. Later, during the course of the hearing, the ALJ stated that March 23, 2010, was the date of MMI and the respondents' counsel agreed. (Tr. at 27-28.) The claimant's counsel did not correct this statement from the ALJ. In the Order, the ALJ incorrectly states that the parties agreed that the claimant's MMI date was March 23, 2010, at the commencement of the hearing. (ALJ Order pg. 4). The ALJ ultimately determined that the date of MMI is April 6, 2010. (ALJ Order pg. 4).

When the MMI date is subject to conflicting inferences, it is up to the ALJ as trier of fact to resolve the issue. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000) (Where DIME's opinion concerning the date of MMI was subject to conflicting inferences, ALJ could resolve the issue as one of fact.) Here, the ALJ's determination that the claimant was placed at MMI on April 6, 2010 is supported by substantial evidence. The M164 Form dated April 7, 2010, filled out by the claimant's treating physician, Dr. Holthouser, states that the claimant's date of MMI is April 6, 2010. The narrative report from Dr. Holthouser dated April 7, 2010, states on page 3, "I believe the patient is at maximum medical improvement today 04/06/2010." Because the ALJ's finding is supported by substantial evidence, we will not disturb it on review. Section 8-43-301(8), C.R.S.

We are not persuaded that the respondents were deprived of due process under the circumstances presented here. Due process requires that parties have an opportunity to present evidence and raise arguments on behalf of their respective positions. See Franz v. Industrial Claim Appeals Office, 250 P.3d 755 (Colo. App. 2010). However, the requirements of due process are not fixed and rigid, and all that is required is the opportunity to be heard at a meaningful time in a meaningful way. Whiteside v. Smith, 67 P.3d 1240 (Colo. 2003).

Here, the respondents had sufficient notice and opportunity to address the ambiguity of the MMI date. The claimant's application for hearing lists MMI as an issue for hearing. In fact, the respondents' response to the application for hearing specifically states, "Claimant was at MMI on April 6, 2010." The respondents' hearing exhibits contain the DIME report from Dr. Hemler which states that Dr. Holthouser placed the claimant at MMI on April 6, 2010 and that Dr. Hemler agreed with this date. (Respondents' Hearing Exhibit A at 5 and 7).

The parties' arguments concerning the contradictory stipulations on the MMI date were presented to the ALJ in the respective position statements filed after hearing. As such, each party had ample opportunity to address the MMI date. The fact that the respondents appear to have taken conflicting positions throughout the hearing process does not equate to a violation of due process. (Tr. at 4, 27-28). Cf. Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo. App. 1993) (respondents cannot complain of confusion in record caused in part by their own contradictions); Jacobs v. Commonwealth Highland Theaters, Inc., 738 P.2d 6 (Colo. App. 1986) (party cannot complain of error it invited ALJ to commit).

II.

In any event, we determine that the ALJ correctly included the replacement cost of the claimant's health insurance in the AWW for purposes of calculating PPD. The panel has previously held that the claimant's replacement cost of health insurance should be included in the AWW for purposes of calculating PPD. Sanchez v. Pueblo County, W.C. No. 4-452-141 (July 1, 2002); Gutierrez v. Plan De Salud Del Valle, Inc., W.C. No. 4-257-435 (January 12, 2001); De La Torre v. Manheim's Denver Auto Auction, W.C. No. 4-395-437 (April 27, 2000). We decline to depart from our prior holdings.

Medical impairment benefits are calculated at the temporary disability rate, which in turn, is based on the AWW. Section 8-42-107 (8)(d), C.R.S. The AWW statute 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." Section 8-40-201(19)(b), C.R.S., (emphasis added). The purpose in determining an AWW 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).

The AWW statute does not distinguish between temporary and permanent benefits for the purposes of including the cost of replacement health insurance and we do not see an appreciable distinction between temporary and permanent benefits in this regard. Although there are different methods for calculating temporary and permanent disability benefits, both compensate for a loss of earning capacity. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo. App. 1995).

The General Assembly chose to incorporate the same definition of AWW in the calculation of temporary and permanent benefits. There is nothing in the statute that suggests a different definition of AWW should be used depending on what type of benefit is at issue. To the contrary, § 8-40-201(19)(a), C.R.S. says that the replacement cost of insurance "shall" be included upon termination. This statute does not afford the ALJ discretion to exclude the employee's cost of continuing group health insurance because the AWW is being used to calculate permanent rather than temporary benefits. Salazar v. Industrial Claim Appeals Office, 10 P.3d 666 (Colo. App. 2000) ("shall" connotes a mandatory requirement). Had the General Assembly wanted to incorporate a different definition of AWW for the calculation of permanent benefits, they could have done so. Consequently, the ALJ correctly included the replacement cost of health insurance in the claimant's AWW for purposes of calculating PPD.

The Mathews v. City of Glenwood Springs, W.C. No. 4-692-272 (June 25, 2010), case cited by respondents does not require a different result. In Mathews, the panel remanded to the ALJ for a determination of the PPD rate because the ALJ failed to specify the AWW to calculate PPD. We do not read the Mathews decision to prohibit including the replacement cost of health insurance in the present case. Although the Mathews decision recognizes the inherent difficulties with a variable AWW after MMI, those concerns are not at issue here.

The respondents also argue in the brief in support that "to the extent the claimant is responsible for the lost fringe benefits, the claimant should not be able to claim the lost benefits as a multiplier to determine medical impairment." (Respondents' Brief at 11). The respondents withdrew this argument at hearing. (Tr. at 20). Assuming for purposes of argument that the respondents did not waive the argument, the panel has previously rejected this argument in Reynolds v. James Miller and Joyce Miller d/b/a Rivers Edge Motel, W.C. No. 4-331-168 (January 16, 1998), and we see no reason to depart from our reasoning in that case. There is nothing in this statutory scheme allowing an ALJ to determine the claimant's wages based on an inquiry into the reason an employer discontinued payment of a fringe benefit. To the contrary, the plain and ordinary meaning of § 8-40-201(19), C.R.S. is that the cost of continuing health insurance shall be included in the AWW if it is discontinued.

III.

On appeal, both parties agree that the ALJ mistakenly used the AWW amount instead of the temporary disability amount to calculate PPD. Section 8-42-107(8)(d), C.R.S. sets forth the formula for calculation PPD. This statute states that medical impairment benefits shall be determined by multiplying the medical impairment rated by the age factor by 400 weeks and " shall be calculated at the temporary total disability rate." Section 8-42-107(8)(d), C.R.S. (emphasis added).

Here, both parties agree that the calculation should have been 21% x 1.18 x 400 x $729.74 for a total of $72,331.83, in PPD benefits, subject to the statutory cap in § 8-42-107.5, C.R.S. We therefore modify the ALJ's order to reflect this stipulation by the parties.

IT IS THEREFORE ORDERED that the ALJ's order issued March 30, 2011 is modified in part, and as modified, affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Brandee DeFalco-Galvin

______________________________ Kris Sanko

ALFREDO CASAS, 5151 BOARDWALK, UNIT I-1, FT. COLLINS, CO, (Claimant).

RED ROBIN GOURMET BURGERS, Attn: AUDRA HICKMAN, 6312 S. FIDDLER'S GREEN CR., #200N, GREENWOOD VILLAGE, CO, (Employer).

CCSMI, Attn: PATTY RICHARDSON, C/O: SR. CLAIMS SPECIALIST, GREENWOOD VILLAGE, CO, (Insurer).

THE FRICKEY LAW FIRM, Attn: ADAM MCCLURE, ESQ., LAKEWOOD, CO, (For Claimant).

HALL EVANS, LLC, Attn: FRANK M. CAVANAUGH, ESQ., DENVER, CO, (For Respondents).


Summaries of

In the Matter Of. Casas v. Burgers, W.C. No

Industrial Claim Appeals Office
Oct 14, 2011
W.C. No. 4-770-460 (Colo. Ind. App. Oct. 14, 2011)
Case details for

In the Matter Of. Casas v. Burgers, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF ALFREDO CASAS, Claimant, v. RED ROBIN…

Court:Industrial Claim Appeals Office

Date published: Oct 14, 2011

Citations

W.C. No. 4-770-460 (Colo. Ind. App. Oct. 14, 2011)