Opinion
W.C. No. 3-965-536
November 29, 1996
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), dated August 8, 1996, which determined her average weekly wage. We set aside the order and reinstate the ALJ's prior order dated June 5, 1995.
This matter was before us previously, and our Order of Remand dated April 30, 1996, contains a statement of the facts which we will not repeat here. Suffice it to say that we directed the ALJ to "determine whether the claimant had access to no-cost health insurance, and if so, the date on which the claimant was covered." In so doing, we relied on the statute currently codified at § 8-40-201(19)(b), C.R.S. (1996 Cum. Supp.), for the proposition that, "once the employer terminates the claimant's health insurance, the average weekly wage is thereafter calculated based on the actual cost of the claimant's cost of conversion to a similar or lesser insurance plan." (Emphasis in the original).
Pursuant to our order, the ALJ entered a new order dated August 8, 1996. He concluded that the claimant's "cost of conversion for health insurance is only included in the average weekly wage for the period of time that she was not covered by her husband's group health insurance plan at no additional cost to her husband." Thus, the ALJ held that the claimant's average weekly wage was $323.74 per week from November 4, 1991 through November 18, 1991, and $296.53 thereafter.
The claimant appealed that order, and contends for the first time that § 8-40-201(19)(b) is inapplicable to this claim because her date of injury was April 4, 1989. The claimant points out that the health insurance provisions currently codified at § 8-40-201(19)(b) were enacted in 1989, and apply only to injuries occurring on or after July 1, 1989. Therefore, the claimant argues that she entitled to have her average weekly wage calculated based on the "reasonable value" of the employer-paid health insurance benefits, as was the law prior to the statutory change. We agree.
The respondents do not dispute that the claimant's injury occurred prior to the July 1, 1989 effective date of the amendments codified at § 8-40-201(19)(b). Consequently, the claimant correctly argues that the health insurance provisions of § 8-40-201(19)(b) do not apply because her injury occurred prior to July 1, 1989. See, 1989 Colo. Sess. Laws ch. 67, § 14, p. 415; Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992) (statutes apply according to the expressed intent of the General Assembly).
Because the 1989 amendments do not apply, the claim is governed by the law in effect prior to July 1, 1989. This law, found at former § 8-47-101(2), C.R.S. (1986 Repl. Vol. 3B), provides that the term "wages" includes "the reasonable value of board, rent, housing, lodging, or any other similar advantages received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case." (Emphasis added).
In Murphy v. Ampex Corp., 703 P.2d 632 (Colo.App. 1985), the court of appeals held that the value of employer-paid group health insurance constituted a "similar advantage" which was includable in the claimant's average weekly wage. Subsequently, in State Compensation Insurance Authority v. Smith, 768 P.2d 1256 (Colo.App. 1988), the court expanded this holding by stating that the "reasonable value" of group health insurance should be calculated based on the "replacement cost" to the claimant, not the employer's cost of providing the insurance. The court also emphasized that the "reasonable value" of such insurance is an issue of fact to be determined from the evidence in each case.
In light of the fact that the claimant's date of injury is undisputed, we agree with her that our prior order was in error insofar as it held the case is governed by § 8-40-201(19)(b). Instead, the applicable law requires the ALJ to determine the "reasonable value" of the claimant's employer-paid health insurance benefits. In his prior order of June 5, 1995, the ALJ determined that the "best evidence" concerning the "reasonable value" of the claimant's health insurance benefits was her cost to continue coverage after termination, or $27.21 per week. Because the ALJ's calculation is supported by the evidence, we reinstate the ALJ's June 5 order insofar as it included $27.21 per week in the claimant's average weekly wage.
In reaching this result, we are cognizant of the respondents' contention that the claimant did not previously raise her argument concerning the applicability of § 8-40-201(19)(b), and therefore, the claimant waived the issue. However, under the facts of this case, we decline to find a waiver.
Generally, the correctness of a legal conclusion drawn from undisputed facts is a matter of law for the reviewing authority. Dorsch v. Industrial Commission, 185 Colo. 219, 523 P.2d 458 (1974). Further, the fact that an order contains an erroneous statutory reference will not cause reversal of an award of benefits which is supported by the evidence and is correct as a matter of law. St. Mary's Church Mission v. Industrial Commission, 735 P.2d 902 (Colo.App. 1986).
In this case, the ALJ's June 1995 order applied the correct legal standard in determining that the "reasonable value" of the claimant's health insurance benefits was $27.21 per week. Moreover, that determination is supported by substantial evidence in the record. Therefore, had we recognized that the claimant's injury occurred prior to the effective date of § 8-40-201(19)(b), our prior order would have affirmed the ALJ's June 1995 order, despite his erroneous reference to § 8-40-201(19)(b). Moreover, we would have affirmed the order regardless of the claimant's failure to raise the inapplicability of § 8-40-201(19)(b).
Considering that we would have affirmed the ALJ's June 1995 order had we recognized the correct date of injury, we see no reason to now reach the opposite result on the theory that the claimant waived her argument involving the date of injury. To do so would perpetuate an error in the application of the law, and deprive the claimant of benefits to which she is entitled under the law. We do not believe that equitable doctrines such as waiver, or procedural rules such as law of the case, should be applied where they result in manifest injustice. See Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982).
IT IS THEREFORE ORDERED that the ALJ's order dated August 8, 1996, is set aside, and the ALJ's order dated June 5, 1995, is reinstated.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill WhitacreNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed November 29, 1996 to the following parties:
Alice Turner, 2115 Daley Dr., Longmont, CO 80501
Technology Products, Inc., 805 S. Lincoln St., Longmont, CO 80501
Alice Dowdy, Nationwide/Wausau Insurance, P.O. Box 101517, San Antonio, TX 78201
Karen A. Burns, Esq., 745 Walnut St., Boulder, CO 80302 (For the Claimant)
William Sterck, Esq., 679 Grant St., Denver, CO 80203 (For the Respondents)
By: ___________________________