Broadmoor Hotel and Continental Ins. Co. v. Industrial Claim Appeals Office of State of Colo.
| Citation | 939 P.2d 460 |
| Decision Date | 22 August 1996 |
| Docket Number | No. 96CA0104,96CA0104 |
| Parties | BROADMOOR HOTEL AND CONTINENTAL INSURANCE COMPANY, Petitioners, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Laura Stinson, Respondents. . II |
| Court | Colorado Court of Appeals |
Ritsema & Lyon, P.C., Karl A. Schulz, Colorado Springs, for Petitioners.
No appearance for Respondent Industrial Claim Appeals Office of the State of Colorado.
Gerlach & Weddell, P.C., Dale A. Gerlach, Colorado Springs, for Respondent Laura Stinson.
Opinion by Judge MARQUEZ.
In this workers' compensation case, petitioners, Broadmoor Hotel and Continental Insurance Company, seek review of a final order of the Industrial Claim Appeals Panel which calculated the medical impairment benefits awarded to Laura Stinson (claimant) based upon claimant's wages from concurrent employment. We affirm.
This case was submitted to the Administrative Law Judge (ALJ) for a ruling on the issues of average weekly wage and permanent partial disability based upon stipulated facts.
Claimant was concurrently employed by the Broadmoor and the United States Army when she injured her neck and back on August 24, 1993, while working for the Broadmoor. As a result of her injuries, claimant lost time from work at the Broadmoor, but continued to receive her regular wages from the Army. The parties stipulated that her average weekly wage from the Broadmoor was $88.11 and $425.65 from the Army. Petitioners admitted liability for four days of temporary total disability benefits based upon claimant's wages from the Broadmoor.
In resolving the issues, the ALJ made the following findings. Claimant reached maximum medical improvement in July 1994, and her treating physician permanently restricted her to sedentary work. These restrictions severely limited the types of jobs that claimant was able to perform and she was not able to return to her position at the Broadmoor. In addition, although the permanent restrictions would not have forced her out of the Army, they would have impacted claimant's career in the Army because they would have limited her advancement possibilities.
The ALJ also determined that claimant suffered permanent impairment of 27% to the whole body. She also found that claimant had consistently worked two jobs for the fifteen years preceding her injury and that claimant was used to having the income that two jobs produced. Therefore, the ALJ concluded that to determine a fair average weekly wage, the wages from both the Broadmoor and the Army should be combined. Thus, the ALJ calculated claimant's average weekly wage by combining the weekly earnings from both the Broadmoor and the Army and determined that her average weekly wage was $513.80 per week. On review, the Panel affirmed.
Petitioners contend that the Panel erred in considering wages from concurrent employment to determine the "temporary total disability rate" for calculation of claimant's medical impairment when she suffered no temporary wage loss from the concurrent employment. We disagree.
Pursuant to § 8-42-107(8)(d), C.R.S. (1995 Cum.Supp.), medical impairment benefits are calculated by multiplying the medical impairment rating by an age factor and by 400 weeks, and such benefits are to be determined at the "temporary total disability rate" specified in § 8-42-105, C.R.S. (1995 Cum.Supp.).
The "temporary total disability rate" under § 8-42-105(1) is sixty-six and two-thirds percent of a claimant's average weekly wage. Average weekly wage is calculated pursuant to § 8-42-102, C.R.S. (1995 Cum.Supp.) and varies depending upon differences in the frequency and manner of payments. When a worker is concurrently employed, the ALJ may, in order to achieve fairness, include all such wages in the computation of average weekly wage. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App.1988); St. Mary's Church & Mission v. Industrial Commission, 735 P.2d 902 (Colo.App.1986).
Petitioners do not dispute these rules. However, petitioners in essence equate the temporary total disability rate to be applied in determining medical impairment with the actual receipt of temporary total disability benefits. Thus, because the claimant here received temporary total disability benefits based solely upon her wages from the Broadmoor, petitioners reason that claimant's medical impairment benefits may only be calculated upon the wages from the Broadmoor.
However, the determination of a claimant's average weekly wage is based upon the claimant's wages at the time of the injury. Section 8-40-201(19)(a), C.R.S. (1995 Cum.Supp.); Campbell v. IBM Corp., 867 P.2d 77 (Colo.App.1993). Furthermore, § 8-42-107(8) does not restrict the calculation of medical impairment benefits to claimants who actually receive temporary total disability benefits. Nor does it restrict the calculation to the actual amount of the temporary total disability benefits awarded.
Thus, we conclude that § 8-42-107(8) requires that payment of medical impairment benefits be based upon the temporary total disability rate that claimant would have received if the claimant had been temporarily and totally disabled for more than three working days, even if the claimant had not lost any wages and had not actually received temporary disability benefits. Accordingly, the ALJ here properly calculated claimant's medical impairment based upon a temporary total disability rate that included her wages from both the Broadmoor and from the Army.
This conclusion is reasonable and fair because there is a qualitative difference in the nature of awards for...
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