Nelson v. Industrial Claim Appeals Office

• Decision Date: 28 May 2009
• Docket Number: No. 08CA1069.,08CA1069.
• Citation: 219 P.3d 416
• Parties: Stephanie NELSON, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Specialty Restaurants Corp., and Colorado Insurance Guaranty Association, on behalf of Western Guaranty Fund, Respondents.
• Court: Colorado Court of Appeals

219 P.3d 416

Stephanie NELSON, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Specialty Restaurants Corp., and Colorado Insurance Guaranty Association, on behalf of Western Guaranty Fund, Respondents.

No. 08CA1069.

Colorado Court of Appeals, Div. II.

May 28, 2009.

Law Office of Stephanie J. Stevenson, P.C., Stephanie J. Stevenson, Colorado Springs, Colorado, for Petitioner.

John W. Suthers, Attorney General, Katie A. Allison, Assistant Attorney General, Denver,

Colorado, for Respondent Industrial Claim Appeals Office.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, Thomas L. Kanan, Kristin A. Caruso, Denver, Colorado, for Respondents Specialty Restaurants Corp. and Colorado Insurance Guaranty Association.

Susan D. Phillips, Denver, Colorado, for Amicus Curiae Workers' Compensation Education Association.

Opinion by Judge CARPARELLI.

In this workers' compensation action, claimant, Stephanie Nelson, seeks review of the final order of the Industrial Claim Appeals Office (Panel) setting aside an order which required employer, Specialty Restaurants Corp., and Colorado Insurance Guaranty Association on behalf of the insurer, Western Guaranty Fund (collectively employer), to compensate claimant in a second, lump sum payment. We reverse.

I.

The essential question here is whether the 2007 amendment to section 8-43-406(2), C.R.S.2008, which increased the aggregate amount a workers' compensation claimant may receive in one or more lump sums, permits this claimant, who previously received a lump sum payment before the amendment, to receive an additional lump sum payment equal to the difference between the amended aggregate amount and the amount she previously received. We conclude claimant is entitled to the additional amount.

Claimant sustained an admitted work-related injury in 1990. At that time, section 8-43-406(2) limited the aggregate of all lump sums granted to a claimant who had been awarded compensation for permanent total disability to not more than $26,292. Ch. 62, sec. 1, 1990 Colo.Sess. Laws 515. Effective July 1, 1991, an amendment increased the maximum aggregate amount to $37,560. Ch. 219, sec. 41, 1991 Colo.Sess. Laws 1326. The most recent amendment, effective May 30, 2007, increased the maximum aggregate amount to $60,000.

In December 2006, an administrative law judge found claimant to be permanently and totally disabled and awarded her permanent total disability (PTD) benefits. Claimant applied for and was awarded a lump sum payment of $26,292 in February 2007, which, the parties agree, was the maximum lump sum allowed by statute when claimant was injured. In November 2007, claimant applied for an additional lump sum payment of $33,708, the difference between the newly enacted $60,000 maximum aggregate amount and the aggregate lump sum payment she previously received.

In December 2007, the Director of the Division of Workers' Compensation issued an order stating that because lump sum payment is a method of disbursing awarded benefits, the amendment increasing the aggregate amount was procedural. He explained further that the amendment did not impair the employer's substantive rights because overall it would pay out the same amount of benefits as it would have before the change. Accordingly, the Director ordered employer to pay the requested lump sum. In May 2008, the Panel set aside the Director's order, finding that issue was controlled by the ruling in Eight Thousand West Corp. v. Stewart, 37 Colo.App. 372, 546 P.2d 1281 (1976) (rejecting a claimant's contention that an increase in the maximum lump sum payment applied retroactively). This appeal followed.

II.

Claimant contends that the Panel erred when it concluded that the Director's determination had to be reversed because it was contrary to the holding in Eight Thousand West. Although the Panel was required to apply the holding in Eight Thousand West, we are not persuaded by the rationale of that decision and decline to follow it. Instead, like the Director, we conclude that the May 2007 amendment may be applied to claimant's request.

A.

Absent legislative intent to the contrary, "a statute is presumed to be prospective in its operation." § 2-4-202, C.R.S.2008; see Ficarra v. Dep't of Regulatory Agencies, 849 P.2d 6, 14 (Colo.1993) (legislative intent to the contrary need not be explicitly stated). Prospective operation means the statute "operates on transactions occurring after its effective date." Am. Comp. Ins. Co. v. McBride, 107 P.3d 973, 977 (Colo.App.2004) (McBride).

Workers' compensation awards "are determined by the statute in effect at the time of a claimant's injury." McBride, 107 P.3d at 977. However, once an award has been determined, the enforcement of rights and liabilities established by the award is a matter of procedure, and "procedural changes in [a workers' compensation] statute become effective during the pendency of a claim." McBride, 107 P.3d at 977.

In addition, when an amendment to the statute "covers the same subject matter as the original statute," and the person "claiming under the amendment [fulfilled the requirements of the statute and] had a continuing status under both the original statute and the amendment," application of the amendment to that person is prospective in nature, and not retroactive or impermissibly retrospective. See Taylor v. Public Employees Retirement Ass'n, 189 Colo. 486, 489, 542 P.2d 383, 386 (1975) (citing People ex rel. Albright v. Board of Trustees, 103 Colo. 1, 13, 82 P.2d 765, 771 (1938)).

We give deference to reasonable interpretations of a statute adopted by the officer or agency charged with its administration. Indus. Claim Appeals Office v. Orth, 965 P.2d 1246, 1254 (Colo.1998); Dillard v. Indus. Claim Appeals Office, 121 P.3d 301, 304 (Colo.App.2005), aff'd, 134 P.3d 407 (Colo.2006). Consequently, we will set aside the agency's interpretation 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, 175 (Colo.App.1998); accord Popke v. Indus. Claim Appeals Office, 944 P.2d 677, 680 (Colo.App.1997).

B.

In pertinent part, section 8-43-406 states:

Compensation in lump sum. (1) At any time after six months have elapsed from the date of injury, the claimant may elect to take all or any part of the compensation awarded in a lump sum by sending written notice of the election and the amount of benefits requested to the carrier or the noninsured or self-insured employer....

(2) The aggregate of all lump sums granted to a claimant who has been awarded compensation shall not exceed sixty thousand dollars.

C.

Because there is no indication that the General Assembly intended otherwise, we must presume section 8-43-406 is prospective in its operation.

In addition, unlike sections of article 42 of title 8, section 8-43-406 does not establish requirements for the award of benefits, limit the amount of benefits that may be awarded, or modify the amount of existing awards. Instead, like other sections of article 43, it pertains to awards that have already been determined and provides procedures for administering those benefits. Therefore, we conclude section 8-43-406(2), as amended, is procedural and prospective, and, thus, applies to transactions that occur after its enactment. McBride, 107 P.3d at 977.

Procedurally, the 1990 and 1991 versions of section 8-43-406(1) provided that the Director had the discretion to order payment of all or part of an award of compensation for PTD in a lump sum. The 1990 version limited the aggregate lump sum amount to $26,292 and the 1991 version increased that limit to $37,250. The only requirements were that PTD benefits had been awarded and that the Director exercised discretion to grant payment in a lump sum. In 2007, the General Assembly amended section 8-43-406(1) to enable a claimant to elect to receive all or part of his or her PTD compensation in a lump sum. Thus, the procedure for lump sum payment was changed from an exercise of the Director's discretion to a claimant's election. Despite this change, we conclude that the 2007 amendment covers the same...