Kinder v. Industrial Claim Appeals Office of State of Colo.

• Decision Date: 28 May 1998
• Docket Number: No. 97CA1762,97CA1762
• Citation: 976 P.2d 295
• Parties: 134 Ed. Law Rep. 595, 98 CJ C.A.R. 2729 Amy KINDER, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO; Director, Executive Department, State of Colorado; Colorado State University and Colorado Compensation Insurance Authority, Respondents. . IV
• Court: Colorado Court of Appeals

Page 295

976 P.2d 295

134 Ed. Law Rep. 595, 98 CJ C.A.R. 2729

Amy KINDER, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO; Director, Executive Department, State of Colorado; Colorado State University and Colorado Compensation Insurance Authority Respondents.

No. 97CA1762.

Colorado Court of Appeals, Div. IV.

May 28, 1998.

Rehearing Denied July 2, 1998.

Dwyer, Huddleson & Ray, P.C., Stephen J. Jouard, Fort Collins, for Petitioner.

No Appearance for Respondent Industrial Claim Appeals Office.

Colorado Compensation Insurance Authority, Curt Kriksciun, Denver, for Respondents Colorado State University and Colorado Compensation Insurance Authority.

Opinion by Judge CASEBOLT.

Amy Kinder (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) that denied her claim for medical impairment benefits against Colorado State University (college) and the Colorado Compensation Insurance Authority (collectively CCIA). She also challenges the constitutionality of those portions of the Workers' Compensation Act (Act) as construed by the Panel when it determined that, as an unpaid student intern, she was not entitled to such benefits. We set aside the order.

As part of a degree program, the college placed claimant as an unpaid student intern with a sponsoring employer. During the course of her duties, claimant was injured and sustained permanent medical impairment of 12% of the whole person. Upon the completion of her education, she was hired by the sponsoring employer into the same position she had held as an intern.

The college provided workers' compensation coverage for claimant during the internship and CCIA admitted liability for medical benefits. However, because claimant earned no wages as an unpaid student intern, CCIA denied liability for medical impairment benefits.

Concluding that claimant was entitled to such benefits, the Administrative Law Judge (ALJ) calculated them by imputing an average weekly wage based upon claimant's actual wages earned from the sponsoring employer after the completion of her internship. The Panel interpreted the applicable statutes differently, concluded that claimant was not entitled to an imputed average weekly wage, and set aside the award of medical impairment benefits. This appeal followed.

Claimant contends the applicable statutes should be interpreted to provide that unpaid student interns placed with a sponsoring employer for training should have an average weekly wage imputed to them so that medical impairment benefits may be calculated and awarded. We agree.

Medical impairment benefits for a whole person impairment are based, indirectly, upon a claimant's average weekly wage. Section 8-42-107(8)(d), C.R.S.1997, provides that medical impairment benefits for whole person impairment shall be calculated at the temporary total disability rate, and under § 8-42-105(1), C.R.S.1997, the temporary disability rate is sixty-six and two-thirds percent of the claimant's average weekly wage.

The general rule is that a worker who has no wage loss is not entitled to temporary disability benefits because the temporary disability rate is based upon lost wages. However, § 8-40-202(1)(a), C.R.S.1997, creates certain exceptions to the usual measure of calculating temporary disability benefits. See Parker Fire Protection District v. Poage, 843 P.2d 108 (Colo.App.1992) (construing § 8-40-202(1)(a)(II), C.R.S.1997, which creates such an exception for certain volunteer and unsalaried workers such as firefighters and other workers involved in potentially dangerous activities). The sole issue here is whether claimant comes within the terms of this statute.

The imputed wage provision, § 8-40-202(1)(a)(VI), C.R.S.1997, states:

The rate of compensation for a person placed pursuant to subparagraph (IV) of this paragraph (a) if accidentally injured or, if killed, for dependents of such person shall be based upon the wages normally paid in the community in which such person resides or in the community where said work or job training or rehabilitation program is being conducted for the type of work in which the person is engaged at the time of such injury or death, as determined by the director ....

(emphasis added)

The question, then, is whether a student intern is "a person placed pursuant to subparagraph (IV) of this paragraph (a)." If the intern is such a person, then he or she should receive the imputed wage. Conversely, if not, then the imputed wage statute does not apply.

That portion of § 8-40-202(1)(a)(IV), C.R.S.1997, applicable here states that:

Except as provided in section 8-40-301(3) and section 8-40-302(7)(a), any person who may at any time be receiving training under any work or job training or rehabilitation program sponsored by any ... college and who, as part of any such work or job training or rehabilitation program of any ... college, is placed with any employer for the purpose of training or learning trades or occupations shall be deemed while so engaged to be an employee of the respective ... college sponsoring such training or rehabilitation program .... (emphasis added)

Section 8-40-302(7), C.R.S.1997, to which § 8-40-202(1)(a)(IV) refers, addresses the respective liabilities for coverage between sponsoring employers and the educational institutions. It provides that:

(a) Any employer ... who enters into a bona fide cooperative education or student internship program sponsored by an educational institution for the purpose of providing on-the-job training for students shall be deemed an employer of such students for the purposes of workers' compensation and liability insurance pursuant to articles 40 to 47 of this title.

(b) If the student placed in an on-the-job training program does not receive any pay or remuneration from the employer, the educational institution sponsoring the student in the cooperative education or student internship program shall insure the student through the institution's workers' compensation and liability insurance or enter into negotiations with the employer for the purpose of arriving at a reasonable level of compensation to the employer for the employer's expense of providing workers' compensation and liability insurance while such student is participating in on-the-job training with said employer .... (emphasis added)

Section 8-40-302(7)(c), C.R.S.1997, further provides the definition of a "cooperative education or student internship program." There is no dispute that the program in which claimant was enrolled falls within this definition.

Our primary task in construing these statutes is to give effect to the intent of the General Assembly. The plain language of the statutes should first be considered, and only if there is an ambiguity should other rules of statutory construction then be applied. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo.1996).

When two or more statutes address the same subject matter, they should be construed together...