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

• Decision Date: 09 February 1995
• Docket Number: No. 93CE0021,93CE0021
• Citation: 894 P.2d 42
• Parties: Caroline R. McKINNEY, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO and J.C. Penney Company, Inc., Respondents. . II
• Court: Colorado Court of Appeals

Page 42

894 P.2d 42

Caroline R. McKINNEY, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO and J.C. Penney Company, Inc., Respondents.

No. 93CE0021.

Colorado Court of Appeals,

Div. II.

Feb. 9, 1995.

Rehearing Denied March 23, 1995.

Norton Frickey & Associates, P.C., Janet L. Frickey, Lakewood, for petitioner.

No appearance for respondent Indus. Claim Appeals Office.

Ritsema & Lyon, P.C., Cindy Slevin, Denver, for respondent J.C. Penney Co., Inc.

Douglas A. Thomas, Denver, for amicus curiae Colorado Compensation Ins. Authority.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, for amicus curiae Workers Compensation Educ. Ass'n.

Opinion by Judge CRISWELL.

In this workers' compensation case, the issue presented is whether the definition of permanent total disability contained in § 8-40-201(16.5)(a) (1994 Cum.Supp.) disqualifies a claimant from receiving permanent total disability benefits if the claimant is capable of earning wages in "any" amount. We conclude that it does, and therefore, we affirm the order of the Industrial Claim Appeals Office (Panel).

The claimant, Caroline R. McKinney, age 60, worked for 18 and 1/2 years for J.C. Penney Co., Inc. As a result of her employment, she developed bilateral shoulder and knee problems and is now unable to return to any occupation for which she has previous training and experience. The parties stipulated that claimant's injury is governed by the 1991 amendments to the Workers' Compensation Act, Colo.Sess.Laws 1991, ch. 219 at 1291 to 1342.

The claimant is restricted from lifting, repetitive motions, stooping, crawling, and prolonged standing or walking. A high school graduate, claimant is below average on finger dexterity and verbal reasoning and is only at the 25th percentile on clerical tasks.

However, the Administrative Law Judge (ALJ), with record support, found that claimant can engage in modified sedentary activities for 4-6 hours per day and that she can obtain part-time, entry-level, unskilled work for approximately $5-6 per hour. Specifically, the ALJ found that "many telemarketing, receptionist clerk, teacher's aide, and home companion jobs will be within claimant's abilities on at least a part-time basis." Accordingly, he concluded that claimant had failed to prove that she is permanently and totally disabled under § 8-40-201(16.5)(a).

On review, the Panel affirmed. The Panel ruled that, in 1991, the General Assembly purposefully adopted a strict definition of permanent total disability (PTD) under § 8-40-201(16.5)(a) so as to lessen the fiscal impact of such benefits on employers. Under the Panel's interpretation, an injured worker is automatically disqualified from PTD benefits if he or she is capable of earning wages in "any" amount.

I.

Before 1991, the Workers' Compensation Act (Act) provided little guidance for determining PTD. Under former § 8-51-107(2), C.R.S. (1986 Repl.Vol. 3B), a worker was presumptively permanently and totally disabled if he or she suffered:

[t]he loss of both hands or both arms or both feet or both legs or both eyes or of any two thereof ... except ... where the employer or the division obtains suitable employment for such disabled person....

In addition to this standard, the courts had developed a test for assessing permanent disability which required a balancing of various factors, see Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App.1993), and a determination whether the claimant "retained or would regain efficiency is some substantial degree as a working unit in the fields of general employment". Byouk v. Industrial Commission, 106 Colo. 430, 434, 105 P.2d 1087, 1089 (1940); see also Prestige Painting & Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo.App.1991); Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210 (Colo.App.1990).

The amendments repealed the presumption of PTD under former § 8-51-107(2) for the loss of both hands, both arms, both feet, both legs, both eyes, or any two such body parts. See Colo.Sess.Laws 1991, ch. 219, § 8-42-111(2) at 1313. Cf. § 8-40-201(16.5)(b), C.R.S. (1994 Cum.Supp.) (presumption reenacted with modifications.)

In addition, PTD was, for the first time, specifically defined under the definitional section of the amended Act as follows:

'Permanent total disability' means the employee is unable to earn any wages in the same or other employment. The burden of proof shall be on the employee to prove that he is unable to earn any wages in the same or other employment.

Colo.Sess.Laws 1991, ch. 219, § 8-80-201(16.5) at 1293 (emphasis added). It is the foregoing definition which the Panel and ALJ relied upon in denying PTD benefits to claimant.

Identical language was used in another subsection requiring a permanently disabled employee, who is "capable of rehabilitation" that would enable the employee to "earn any wages in the same or other employment," to accept any employment offered "by the same or other employer." Section 8-42-111(3), C.R.S. (1994 Cum.Supp.).

In addition, however, a new provision was added allowing PTD awards to be reopened if a recipient earns in excess of $4,000 annually, or if he or she regains the ability to return to employment:

In cases where a claimant is determined to be permanently totally disabled, any such case may be reopened at any time to determine if the claimant has returned to employment. If the claimant has returned to employment and is earning in excess of four thousand dollars per year or has participated in activities which indicate that the claimant has the ability to return to employment, such claimant's permanent total disability award shall cease and the claimant shall not be entitled to further permanent total disability benefits....

Section 8-43-303(3), C.R.S. (1994 Cum.Supp.).

Finally, the amendments enacted a cost of living allowance for PTD periodic payments, a benefit not previously authorized under the Colorado Act. See Bellendir v. Kezer, 648 P.2d 645 (Colo.1982). Under this provision the average weekly wage used to compute a claimant's PTD periodic benefit was to be increased by two percent annually, effective each July 1. Colo.Sess.Laws 1991, ch. 219, § 8-42-111(4) at 1313. Cf. § 8-42-111(4), C.R.S. (1994 Cum.Supp.) (restricting the cost-of-living allowance to injuries sustained between July 1, 1991, and July 1, 1994.)

II.

Claimant contends that, because she is permanently precluded from working full-time and is unable to earn her pre-injury rate of pay, or to return to any occupation for which she has previous training and experience, she is entitled to an award for PTD. Claimant and amicus curiae Workers Compensation Education Association (WCEA) argue that the Panel's statutory construction is too narrow because it looks solely to § 8-40-201(16.5)(a) without considering other provisions in the Act which need to be harmonized or reconciled with that statutory section.

A.

Claimant and WCEA first argue that the term "any wages" under § 8-40-201(16.5)(a) must be read in conjunction with the definition of "wages" contained in another subsection of the definitional statute, § 8-40-201(19)(a), C.R.S. (1994 Cum.Supp.). That subsection provides:

'Wages' shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury, either express or implied.

The primary goal in construing a statute is to determine and give effect to the intent of the General Assembly. Monfort, Inc. v. Gonzalez, 855 P.2d 19 (Colo.App.1993). If the meaning of a statute is unclear, the court may consider legislative history in interpreting the statute, including comments by legislators and others during discussions of the proposed legislation. Hurst Construction Co. v. Ramey, 821 P.2d 858 (Colo.App.1991).

Because the term "wages" has a technical definition under the Act and it is unclear whether the phrase "any wages" in § 8-40-201(16.5)(a) was meant to encompass this technical definition, it is appropriate to resort to legislative history. And, if a strict, literal, or technical interpretation of the words of a statute would lead to a result that is inconsistent with the legislative purpose as reflected in that history, the more restrictive meaning must yield to an interpretation that effectuates the legislative intent. Frohlick Crane Service, Inc. v. Mack, 182 Colo. 34, 510 P.2d 891 (1973); see also Rocky Mountain General v. Simon, 827 P.2d 629 (Colo.App.1992).

The pertinent amendment significantly altered the law governing both partial and total permanent disability. See Salmon & Salazar, 1991 Update on Workers' Compensation Law, 20 Colo.Law. 2223 (November 1991). Indeed, as the claimant concedes, the legislative history indicates that the definition of PTD in § 8-40-201(16.5)(a) was intended to "tighten" and restrict eligibility for PTD benefits. See House Floor Debate on Senate Bill 218, 58th General Assembly, 1st Session (April 18, 1991); Conference Committee Hearing, 58th General Assembly, 1st Session (May 3, 1991); Hearing in Senate Chambers on Senate Bill 218, 58th General Assembly, 1st Session, (May 6, 1991).

The legislators acknowledged that the cap on permanent partial disability benefits of $37,560 under former Colo.Sess.Laws 1990, ch. 62, § 8-42-110(1)(b) at 493, was too low, leading many partially disabled employees to seek benefits for PTD. To discourage such application, they wanted to increase the cap on permanent partial disability benefits and also to provide a cost of living allowance for the "genuinely" permanently and totally disabled. However, proponents of the amendments argued that neither of these changes was "affordable" unless, at the same time, qualification for PTD benefits was restricted. See Conference Committee Hearing, 58th General Assembly, 1st Session (May 3, 1991).

In this context, a reference to the general definition of "wages" in § 8-40-201(19)(a), as the pre-injury ...