Opinion
W.C. No. 4-185-691
August 9, 1996.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied the claimant's request to have his permanent partial disability benefits increased on account of the claimant's status as a minor. We affirm.
The essential facts are undisputed. The claimant was born on September 3, 1973. As a result of the industrial injury on September 21, 1993, the claimant's right index finger was amputated.
The claimant's treating physician assessed the claimant's medical impairment as twenty-four percent of the right hand, which converted to a thirteen percent whole body impairment. The respondents admitted liability for permanent partial disability benefits based on a twenty-four percent loss of the hand below the wrist. See § 8-42-107(2)(c), C.R.S. (1995 Cum. Supp.). The claimant sought a hearing arguing that, because he was a minor at the time of the injury, § 8-42-102(4), C.R.S. (1995 Cum. Supp.), entitles him to have his permanent disability benefits assessed under the whole person provisions of § 8-42-107(8)(d), C.R.S. (1995 Cum. Supp.). The ALJ upheld the respondents' admission reasoning that, because the claimant sustained a scheduled injury, the maximum rate payable for the injury is $150 per week.
On review, the claimant contends that the ALJ erred in upholding the respondents' admission of liability. The claimant argues that the statutory purpose underlying § 8-42-102(4) is to afford greater compensation to minors because they typically earn less than adults, and because they suffer lost earning capacity for a longer period of time. Consequently, the claimant argues that the correct result in this case is to award permanent disability benefits for 104 weeks at the rate of $150 per week or, alternatively, to convert the claimant's scheduled impairment rating to a whole person rating and award compensation under § 8-42-107(8)(d). We are not persuaded.
Section 8-42-102(4) provides in pertinent part:
"Where the disability of such minor is permanent or if benefits under articles 40 to 47 of this title accrue because of the death of such minor, compensation to said minor or death benefits to said minor's dependents will be paid at the maximum rate of compensation payable under said articles at the time of the determination of such permanency or of such death."
The claimant correctly states that the purpose of this statute is to rectify disparities which exist between minors and adults in the areas of earnings and loss of earning capacity. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995); Mills v. Guido's, 800 P.2d 1370 (Colo.App. 1990). However, it does not follow that, under the existing statutory scheme, the claimant is entitled to the increased benefits which he demands.
As argued by the respondents, § 8-42-107(1)(a), C.R.S. (1995 Cum. Supp.), limits awards for permanent partial disability to the benefits set forth in the schedule where "the employee has an injury or injuries enumerated in the schedule." It is only where the claimant sustains one or more injuries not listed in the schedule that he is entitled to the method of calculation established by § 8-42-107(8)(d). See Mountain City Meat Co. v. Oqueda, ___ P.2d ___, (Sup.Ct. 95SC246, June 24, 1996).
Here, it is undisputed that the claimant's only injury is rateable under § 8-42-107(2)(c) of the schedule. Thus, for purposes of § 8-42-102(4), the "maximum rate of compensation payable" for the injury is $150 per week times one hundred weeks times twenty-four percent.
We do not agree with the claimant that there is an inherent conflict between § 8-42-102(4) and § 8-42-107(1)(a) so that we are obliged to reach a construction which would award the claimant greater benefits. To the contrary, we perceive no inherent conflict in these statutes and decline the claimant's invitation to find one.
First of all, it must be recognized that § 8-42-107(6), C.R.S. (1995 Cum. Supp.), provides that compensation for scheduled injuries "shall be at the compensation rate of $150 per week." Section 8-42-107(8)(d) compensates non-scheduled injuries based on a formula involving the degree of impairment, the claimant's age and the claimant's temporary total disability rate. In Duran v. Industrial Claim Appeals Office, 883 P.2d 477(Colo. 1994), our supreme court held that these differences between compensation for scheduled injuries and injuries to the trunk and head are rational because the General Assembly could have concluded that the two types of injuries are, "generally speaking, of a different character and severity." Presumably, these distinctions also apply to injuries to minors, and there is no basis for utilizing § 8-42-107(8)(d) when a minor suffers a scheduled injury.
However, even if the statutes could interpreted as conflicting, we would not reach either of the results argued for by the claimant. In fact, a very similar argument was rejected in De Jiacomo v. Industrial Claim Appeals Office, 817 P.2d 552 (Colo.App. 1991). In De Jiacomo, the claimant was awarded permanent partial disability benefits under former § 8-42-110(1)(b), C.R.S. (1990 Cum. Supp.). The statute provided that such benefits were payable at "a weekly rate of not more than one hundred twenty dollars." However, the claimant argued that, because he was a minor, § 8-42-102(4) entitled him to receive the permanent partial disability benefits at the temporary total disability rate established by former § 8-42-105, C.R.S. (1990 Cum. Supp.).
The De Jiacomo court rejected the claimant's argument, holding that the "claimant's proposed construction of § 8-42-102(4) would conflict with the legislative intent of awarding compensation for permanent partial disability on a fixed rate basis." Since § 8-42-110(1)(b) was enacted later than § 8-42-102(4), the court concluded that it was required to defer to the General Assembly's decision that minors should receive compensation for permanent partial disability at the same, fixed rate as adults.
Here, much like the fact pattern in De Jiacomo, § 8-42-107 was enacted subsequent to § 8-42-102(4). Because § 8-42-107(2) and (6) make no distinctions between minors and adults, it is appropriate to defer to the General Assembly's decision concerning the calculation of benefits for permanent partial disability. To the extent that § 8-42-102(4) conflicts with § 8-42-107(6), the latter controls since it was enacted subsequent to § 8-42-102(4).
The claimant also argues that this statutory scheme violates the claimant's constitutional right to equal protection of the laws. However, we lack jurisdiction to consider this issue. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ's order, dated March 25, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona HalseyNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1995 Cum. Supp.).
Copies of this decision were mailed August 9, 1996 to the following parties:
Rene Torres, 29 S. 11th Ave., Brighton, CO 80601
Canam Industries, Inc., % Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Jeffrey A. Goldstein, Esq., 1763 Franklin St., Denver, CO 80218 (For the Claimant)
John Parsons, Esq., 1873 S. Bellaire St., Ste. 1400, Denver, CO 80222 (For the Respondents)
By: _____________________