Opinion
W.C. No. 4-495-463
January 6, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which calculated the claimant's average weekly wage (AWW) to include the claimant's cost of continuing the employer's group health insurance. The respondents argue the ALJ misapplied the statute because the claimant's cost of continuing health insurance is not to be included in the AWW until the claimant is terminated and the employer's contribution to insurance ceases. We reverse the contested portion of the order.
The pertinent facts are undisputed. The claimant was injured in November 2000. At that time of the injury the employer provided group health and dental insurance coverage. The employer paid a portion of the premiums and the claimant paid the remaining portion.
At the time of the hearing the claimant continued to work for the employer. The ALJ found the health and dental insurance remained in effect and had never been canceled, although the claimant was paying more per month for his share than he paid at the time of the injury.
Under these circumstances, the ALJ concluded that calculation of the claimant's AWW is controlled by the "first sentence" of § 8-40-201(19)(b), C.R.S. 2002, which provides the term "wages" includes "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 plan." The ALJ rejected the respondents' argument that the AWW is governed by the "last sentence" of the statute. The last sentence states that 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," the 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). The ALJ reasoned that the "last sentence" governs whether or not the "employer's portion of health insurance premiums is included in the average weekly wage."
On review, the respondents contend the ALJ erred in including in the AWW the claimant's cost of the health and dental insurance because the claimant remained employed and the insurance benefits continued. The respondents argue that the term "continuing" as used in the first sentence of § 8-40-201(19)(b) is ambiguous and should be construed with respect to the legislative history. According to the respondents, the legislative history establishes that the word "continuing" is a "term of art" derived from federal and state legislation governing an employee's right to "continue" health insurance after termination from employment. We agree the ALJ misapplied the statute, but for reasons different than those stated by the respondents.
In our view, this case is controlled by our holding in Salas v. NCR Corp., W.C. No. 4-166-217 (March 26, 1996). In Salas, the employer provided group health insurance and paid a portion of the premium. After the injury, the employer placed the claimant on long term disability but continued paying its portion of the health insurance premiums. Nevertheless, the ALJ held the AWW should include the employer's portion of the premium. However, citing the last sentence of § 8-40-201(19)(b), we stated the "unambiguous effect" of the statute "is to exclude from the wage calculation the cost of health insurance if the employer continues to pay its share of the cost after the injury."
The basis of the holding in Salas is that the last sentence of the statute provides that an advantage or benefit "enumerated" in the statute is to be excluded from the AWW if the employer continues to pay any of the advantage or fringe benefit, including the cost of health insurance. Because the legislature is presumed to mean what it said, we must give the term "any" its plain and ordinary meaning unless some absurdity results. Spracklin v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA0274, October 24, 2002). The plain and ordinary meaning of the word "any" is "one, some, every, or all without specification." The American Heritage College Dictionary (Third Edition 1993). See White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000) (in absence of statutory definition word will be given its dictionary meaning). Thus, if the employer continues to pay "some" of the cost of the claimant's health insurance, health insurance is excluded from the AWW calculation until the employer discontinues payment. Further, no conflict with the first sentence exists because the "employee's cost of continuation" assumes that the employer is no longer making a contribution to the health insurance. Put another way, the last sentence of § 8-40-201(19)(b) qualifies the first sentence.
We see no reason to depart from our holding in Salas, and decline to do so. Because we conclude the ALJ misinterpreted the plain language of the statute, we must reverse the order insofar as adjusted the claimant's AWW to include the claimant's "portion of health insurance premiums" and adjusted the claimant's temporary and permanent disability benefits accordingly.
Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001), is not in conflict with our holding. In Humane Society the employer terminated the claimant and discontinued its partial funding of the health insurance premiums. Hence, that case did not consider the proper application of the statute, including the last sentence, in a fact pattern where the employer continued to pay a portion of the premiums.
In reaching this result, we recognize our holding deviates from the precise issue framed by the respondents on appeal. However, our formulation of the issue was considered by the ALJ and she rejected our interpretation of the statute. Further, our resolution of the appeal is implicated by the respondents' argument because we have determined that the plain language of the statute makes it unnecessary to reach the respondents' theory.
IT IS THEREFORE ORDERED that the ALJ's order dated June 27, 2002, is reversed insofar as it ordered an adjustment of the claimant's AWW based on the claimant's cost of continuing the health and dental insurance, and the award of benefits shall be adjusted accordingly.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _______January 6, 2003___ to the following parties:
William Midboe, 2303 Crownridge, Pueblo, CO 81008
State of Colorado, 10th Judicial District, 320 W. 10th St., Pueblo, CO 81003
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Lawrence D. Saunders, Esq., 125 W. "B" St., Pueblo, CO 81003 (For Claimant)
Derek Frickey, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903
By: ________A. Pendroy__________________________________________