Midboe v. Industrial Claim Appeals Office
| Decision Date | 25 September 2003 |
| Docket Number | No. 03CA0159.,03CA0159. |
| Citation | 88 P.3d 643 |
| Parties | William MIDBOE, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE of Colorado and Pinnacol Assurance, Respondents. |
| Court | Colorado Court of Appeals |
Koncilja & Koncilja, P.C., Lawrence D. Saunders, Pueblo, Colorado, for Petitioner.
Ken Salazar, Attorney General, Y.E. Scott, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
Michael J. Steiner, Brandee Defalco Galvin, Denver, Colorado, for Respondent Pinnacol Assurance.
Opinion by Judge NEY.
In this workers' compensation proceeding, William Midboe (claimant) seeks review of the calculation of his average weekly wage (AWW) entered as part of the final order of the Industrial Claim Appeals Office (Panel) awarding him benefits. We affirm.
Claimant sustained an industrial injury in 2000 while employed by the State of Colorado (employer). Although he suffered both a temporary and permanent disability, he continues to work for employer.
Before and after the injury, claimant received health and dental insurance as a benefit of employment. Claimant paid $258.76 per month for his share of the health insurance premium and $42.50 per month for his share of the dental insurance premium. Employer paid the remaining portion of the premiums. Following a rate increase in 2002, claimant's contribution increased to $304.26 per month for the health insurance premium and decreased to $20.66 for the dental insurance premium. Including these amounts would have increased his AWW from $678 to $747.52 and then, after the rate increase, to $752.98.
The issue presented for review is whether the amount claimant pays as his share of the premium for group health and dental insurance coverage must be included in the calculation of his AWW. The administrative law judge (ALJ) agreed with claimant that his insurance cost should be included in the calculation of his AWW. However, the Panel determined that the ALJ misconstrued the pertinent statute and that, as long as the employer continued to pay a portion of the premium, claimant's AWW should not be increased by his contribution. We agree with the Panel that the AWW is not to be increased under such circumstances, but we reach that conclusion based upon a different interpretation of the statute.
Section 8-40-201(19)(b), C.R.S.2002, the statute pertinent here, provides:
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, and gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns and the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but shall not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of such health insurance coverage, such advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make such payment.
(Emphasis added)
When a reviewing court construes a statute, it must determine and give effect to the intent of the legislature by affording the language of the statute its plain and ordinary meaning. Magnetic Eng'g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). However, if a statute is fairly susceptible of more than one interpretation, it is ambiguous, and the court must look to other extrinsic factors, such as the statutory context, the consequences of a particular construction, and the legislative history. Miller v. Indus. Claim Appeals Office, 985 P.2d 94 (Colo.App.1999).
Words or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, must be construed in accordance with the acquired meaning. Allstate Ins. Co. v. Schneider Nat'l Carriers, Inc., 942 P.2d 1352 (Colo.App.1997),aff'd sub nom. Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465 (Colo.1998). A court may also look outside the statute to related sources for the definition of an applicable term and must attempt to harmonize other statutes relating to the same subject matter. Sullivan v. Indus. Claim Appeals Office, 22 P.3d 535 (Colo.App.2000).
We give deference to the Panel's interpretation of the statute because the Panel is the agency charged with its enforcement, and we will set it aside only if it is inconsistent with the clear language of the statute or with the legislative intent. Support, Inc. v. Indus. Claim Appeals Office, 968 P.2d 174 (Colo.App.1998).
The Panel's interpretation was based upon its decision in another case that the clear and unambiguous effect of the last sentence in § 8-40-201(19)(b) was to exclude the cost of health insurance from a claimant's AWW calculation when the employer continued to pay its share of the premium after the injury. The Panel explained that its basis for that holding was the phrase "continues to pay any advantage or fringe benefit," which, by the use of the word "any," clarified that the AWW calculation was not to be increased by any part of the insurance cost, including that borne by the claimant, as long as some portion of the premium continued to be paid by the employer. Because the Panel concluded that the last sentence controlled, it neither addressed the meaning of the term "continuing" used in the first sentence nor determined whether the statute is ambiguous.
We are not bound by decisions of the Panel in other cases. Popke v. Indus. Claim Appeals Office, 944 P.2d 677 (Colo.App.1997). Further,...
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