Browne v. Indus. Claim Appeals Office of Colo.
| Decision Date | 17 June 2021 |
| Docket Number | Court of Appeals No. 20CA1475 |
| Citation | 495 P.3d 974,2021 COA 83 |
| Parties | Timothy BROWNE, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and City of Colorado Springs, Colorado, Respondents. |
| Court | Colorado Court of Appeals |
Franklin D. Azar & Associates, P.C., Robert Turner, Colorado Springs, Colorado; The Elliott Law Offices, P.C., Mark D. Elliott, Alonit Katzman, Arvada, Colorado, for Petitioner
No Appearance for Respondent Industrial Claim Appeals Office
Dworkin, Chambers, Williams, York, Benson & Evans, P.C., Gregory K. Chambers, Denver, Colorado, for Respondent City of Colorado Springs
The McCarthy Law Firm, P.C., John D. McCarthy, Arvada, Colorado, for Amicus Curiae Colorado Workers’ Compensation Education Association
Opinion by JUDGE DAILEY
¶ 1 The Workers’ Compensation Act (Act) limits the amount of temporary and permanent partial disability benefits awardable to an injured worker, depending upon an injured worker's "impairment rating." § 8-42-107.5, C.R.S. 2020. In 2016, when this claimant's benefits were calculated, for injuries sustained with impairment ratings of 25% or less, temporary and permanent disability benefits were capped at $86,697.04; for injuries sustained with impairment ratings greater than 25%, temporary and permanent disability benefits were capped at $173,391.90.1
¶ 2 What happens when a worker suffers multiple, compensable work-related injuries that cumulatively — but not individually — produce an impairment rating greater than 25% to the same body part?
¶ 3 The Act mandates an apportionment between injuries: "In cases of permanent medical impairment," a claimant's award or settlement "shall be reduced" by "deduct[ing] from the permanent medical impairment rating for [a] subsequent injury" the "permanent medical impairment rating[s] applicable to the previous injur[ies] to the same body part." § 8-42-104(5)(a), C.R.S. 2020.
¶ 4 The Act does not explicitly articulate how and when the reduced benefits via apportionment should be calculated. The present case asks us to resolve this question: Should the final apportioned impairment rating be calculated first, resulting in the application of the lesser benefits cap, or should the benefit be calculated based on the combined rating and then reduced by subtracting earlier awards?
¶ 5 Because we conclude that an apportioned "impairment rating" should be calculated first, we affirm the decision of the Panel upholding the order of an ALJ limiting the claim to the lower statutory benefits cap.
¶ 6 Claimant, Timothy Browne, worked as a law enforcement officer for the City of Colorado Springs (the City). In 2007, he sustained an injury to his cervical spine
"during defense tactic training." He reached maximum medical improvement (MMI) for that injury in January 2010 with a permanent impairment rating of 6% of the whole person but with no restrictions. The City admitted to the 6% injury and paid claimant permanent partial disability (PPD) benefits having a present value of $31,577.95 for the 2007 injury.
¶ 7 In July 2016, claimant sustained a second work-related injury to the same body part, his cervical spine. He reached MMI for this injury in April 2019. The City filed a final admission of liability (FAL) admitting to an impairment rating of 25% of the whole person based upon the treating physician's impairment rating calculation. Claimant underwent a division-sponsored independent medical examination (DIME). The DIME physician agreed with the treating physician that claimant reached MMI in April 2019, but the DIME physician calculated claimant's impairment rating to be 26% of the whole person.
¶ 8 The City did not file an FAL after the DIME physician issued his report. Instead, a dispute arose between the parties over the apportionment of claimant's injuries and application of the statutory benefits cap. The City took the position that claimant's permanent impairment rating should first be reduced by the 6% impairment attributable to his 2007 injury, leaving him with a net permanent impairment rating of 20% and a disability benefits cap of $86,697.04 for the 2016 injury.
¶ 9 Claimant countered that the City's approach improperly reduced the disability benefits to which he was entitled; according to him, the statutory benefits cap should be based on the DIME physician's total impairment rating of 26%, from which the amount awarded to him for his 2007 injury should be deducted. Under claimant's analysis, the statutory benefits cap — based on an impairment rating of 26% — would be $173,391.90.
¶ 10 The ingredients and sequence of calculation matter. If, as the City argues, claimant's impairment rating is deducted first and the lower benefits cap applied, his resulting net PPD benefit is $30,763.47. But if, as claimant argues, the impairment rating is not deducted first and the award is based on the 26% impairment rating, the higher benefits cap would apply and claimant's net PPD benefit would total $85,880.38. Thus, if claimant's benefits are calculated based on the 20% apportioned impairment rating, he will receive $55,116.91 less than he would if benefits are calculated based on the total 26% impairment rating.
¶ 11 An ALJ who heard the matter concluded that the statute's plain language supports the City's position: the impairment rating should be apportioned first. The ALJ noted that section 8-42-104(5) specifies that "the permanent medical impairment rating" attributable to the older injury "shall be deducted from the permanent medical impairment rating" of the subsequent injury. He reasoned that apportionment "is part of the process" used to determine the overall impairment rating attributable to a specific injury upon which the final award is ultimately based.
¶ 12 The Panel agreed with the ALJ's interpretation. It noted that, contrary to claimant's proposed formula and in contrast to the statutory declaration to subtract the earlier impairment rating from the later injury's impairment rating, the Act does not specify the deduction of a previous award for a prior injury. It found nothing in the Act authorizing such a calculation. It therefore affirmed the ALJ's PPD award of $30,763.47 to claimant.
¶ 13 On appeal, claimant asserts that the Panel and the ALJ misinterpreted the Act. He raises two primary contentions: (1) the plain meaning of the Act mandates that the disability benefits cap be based on total, combined impairment ratings; and (2) interpreting the Act to apportion an impairment rating before applying the benefits cap facially violates the Fourteenth Amendment's guarantee of equal protection under the law because those with impairment ratings of 26% or more from a single injury receive greater benefits than those with combined impairment ratings from multiple injuries that collectively exceed 25%. For the reasons discussed below, we are not persuaded by claimant's arguments.
¶ 14 Claimant first contends that to harmonize the Act's provisions and adhere to the words’ plain meaning, the statutory disability cap should be applied to his combined impairment rating of 26%. Although he concedes the City is entitled to an apportionment between injuries, he argues that (1) the cap must be determined, without regard to apportionment, "as part of the award"; and (2) any apportionment must be taken later. According to him, apportionment (1) "simply explains how to calculate the appropriate offset" after the initial award has been determined; and (2) is accomplished by deducting from the initial award the amount of disability benefits previously awarded in connection with the prior injury.
¶ 15 Adhering to this sequence in the calculation, claimant asserts, achieves both the goal of preventing double recovery and the beneficent purpose of the Act because it would not block claimants from "accessing the second cap of benefits."
¶ 16 We disagree with claimant's reading of the Act.
¶ 17 We review issues of statutory construction de novo. Ray v. Indus. Claim Appeals Off. , 124 P.3d 891, 893 (Colo. App. 2005), aff'd , 145 P.3d 661 (Colo. 2006). Consequently, we are not bound by the Panel's interpretation of the Act or the Panel's earlier decisions. Olivas-Soto v. Indus. Claim Appeals Off. , 143 P.3d 1178, 1180 (Colo. App. 2006).
¶ 18 We interpret the Act "according to its plain and ordinary meaning." Davison v. Indus. Claim Appeals Off. , 84 P.3d 1023, 1029 (Colo. 2004). "[W]e give effect to every word and render none superfluous because we ‘do not presume that the legislature used language idly and with no intent that meaning should be given to its language.’ " Lombard v. Colo. Outdoor Educ. Ctr., Inc. , 187 P.3d 565, 571 (Colo. 2008) (quoting Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist. , 109 P.3d 585, 597 (Colo. 2005) ). "If the statutory language is clear, we apply it as written." Pinnacol Assurance v. Hoff , 2016 CO 53, ¶ 48, 375 P.3d 1214.
¶ 19 However, where an agency's governing statute is subject to different reasonable interpretations, we defer to the agency's interpretation. Keel v. Indus. Claim Appeals Off. , 2016 COA 8, ¶ 31, 369 P.3d 807 ; see Rocky Mountain Cardiology v. Indus. Claim Appeals Off. , 94 P.3d 1182, 1184-85 (Colo. App. 2004) ().
¶ 20 We are concerned here with the interpretation of two statutes: section 8-42-107.5 and section 8-42-104(5).
¶ 21 Section 8-42-107.5 places a cap on the amount of combined temporary and permanent disability benefits a claimant can receive. It divides claims into two categories: (1) those for injuries with an impairment rating of "twenty-five percent or less" and (2) those for...
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