Opinion
W.C. No. 4-612-770.
October 13, 2006.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated July 24, 2006, that granted a motion for summary judgment and ordered that the claimant's average weekly wage include the cost to the claimant of continuing his health insurance after the employer terminated that benefit. We affirm.
This case was previously before us. At a hearing on the sole issue of the claimant's average weekly wage the parties submitted stipulated facts concerning the disputed amounts, which centered on whether the claimant's cost of continuing his health insurance following its termination by the employer should be included in the average weekly wage. On March 8, 2006, the claimant filed a motion for summary judgment seeking an increase of the average weekly wage based upon the cost of continuing the health insurance. By order dated March 28, 2006, the ALJ granted the motion for summary judgment, increasing the average weekly wage by the cost of continuing the claimant's health insurance, and ordering payments of temporary and partial disability benefits adjusted by the new average weekly wage. However, because the order granting the motion for summary judgment erroneously recited that the respondents had not opposed the motion, we remanded for reconsideration of the motion in light of the respondents' opposition.
On remand the ALJ entered the order under review here. The ALJ found that the claimant was separated from his employment on June 17, 2004, and that pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA) the claimant was afforded an opportunity to continue his health insurance at a cost to him of $414.04 per month. When that amount was included in the claimant's average weekly wage it equaled $440.62. Although the ALJ found that the claimant did not elect to continue his health insurance, the ALJ concluded that the cost of doing so should nevertheless be included in his average weekly wage. The ALJ relied upon Ray v. Industrial Claim Appeals Office, 124 P.3d 891 (Colo.App. 2005) in concluding that the cost of health insurance should be included in the average weekly wage.
The respondents appealed and argue that Ray was wrongly decided and that, in any event, the ALJ should have applied Midboe v. Industrial Claim Appeals Office, 88 P.3d 643 (Colo.App. 2003). We are unpersuaded that the ALJ erred.
Since the announcement of Ray we have issued several orders following Ray rather than Midboe. See e.g., Clark v. Avalanche Industries, W.C. No. 4-471-863 (March 28, 2006); Wantland v. U.S. Waste Industries, W.C. No. 4-630-784 (January 23, 2006); Stegman v. Sears Roebuck Company, W.C. Nos. 4-559-482 4-483-695 (July 27, 2005). We also note that several other divisions of the court of appeals have since also elected to follow Ray rather than Midboe under circumstances where the claimant declined to purchase continuing insurance. Sears Roebuck Company v. Industrial Claim Appeals Office, 140 P.3d 336 (Colo.App. 2006); Ashmore v. Industrial Claim Appeals Office, No. 04CA1870 (Colo.App. July 21, 2005) (not selected for publication); Carmody v. Industrial Claim Appeals Office No. 04CA2672(Colo.App. August 4, 2005) (not selected for publication). Finally, the supreme court has granted certiorari review of Ray and two unpublished cases raising the same issue. Pending further guidance from the supreme court, we are not persuaded to alter our opinion that Ray correctly states the law and the ALJ did not err. Of course, the respondents' argument that Ray is wrongly decided is not one that we are authorized to resolve, and they are merely preserving that argument pending further action by the appellate courts.
IT IS THEREFORE ORDERED that the ALJ's order dated July 24, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ John D. Baird ____________________________________ Curt Kriksciun
Michael J. Anderson, Louisville, CO, Louise Veasman, General Parts, Inc., Denver, CO, Sean Mathews, Liberty Mutual Insurance Company, Irving, TX, Michael P. Dominick, Esq., Boulder, CO, (For Claimant).
Jonathan S. Robbins, Esq., Denver, CO, (For Respondents).