Opinion
W.C. No. 4-828-815.
August 18, 2011.
FINAL ORDER
The claimant seeks review of the April 5, 2011 order of Administrative Law Judge Krumreich (ALJ) that granted respondents' motion for summary judgment. We affirm.
The claimant suffered an admitted industrial injury on June 28, 2010. The claimant filed an application for hearing on the issue of average weekly wage (AWW). It was the claimant's contention that his AWW should be increased by the costs of continuing health care. The respondents filed a motion for summary judgment on the issue, arguing that the claimant's health care benefits had not vested and were entirely speculative at the time of the injury. The respondents further argued that the claimant was not yet eligible for, and was not receiving health insurance benefits at the time of his injury; therefore, the cost of continuing employer's health insurance plan should not be included in the claimant's AWW.
The ALJ concluded that summary judgment was appropriate. The ALJ noted that the claimant's response to the motion for summary judgment was not accompanied by any affidavits, admissible documents or deposition testimony to establish the existence of a genuine triable issue of material fact sufficient to defeat a motion for summary judgment.
The ALJ found the following facts to be undisputed. The claimant was hired by the employer as a driver on April 19, 2010. The claimant sustained an injury on June 28, 2010 and went on medical leave as of June 29, 2010. A full-time employee of the employer is ineligible to apply for health insurance through the employer until the first of the month following 90 days of active, continuous employment. The claimant had not been employed for 90 active, continuous days as of the time of his injury. Further, the claimant was not eligible for any compensation from the employer beyond his wages and had not made any contribution for fringe benefits at the time of his injury. Similarly, the employer was not providing any fringe benefits, including health insurance, to the claimant and had not made any payments or contributions for such fringe benefits at the time of the claimant's injury. The claimant remains ineligible for health insurance benefits from the employer, as the claimant remains on leave and had not yet completed 90 continuous days of active employment with the employer.
The ALJ granted the respondents' motion for summary judgment and denied the claimant's claim for an increase in his AWW for the cost of the employer's health insurance plan or for conversion to a similar or lesser plan. The claimant appeals this decision.
We note preliminarily that Office of Administrative Court's Rule of Procedure (OACRP) 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See OACRP 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo. App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act).
Summary judgment is a drastic remedy that is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo. App. 1999). In such cases, we review the ALJ's legal conclusions de novo. AC. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). However, pursuant to § 8-43-301(8), C.R.S., we have authority to set aside an ALJ's order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law.
In his petition to review, the claimant contends that there are issues of fact that need to be resolved by the ALJ as the finder of fact. We are not persuaded to set aside the ALJ's order on this ground.
We recognize that all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo. App. 1987). However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual dispute shifts to the opposing party. The failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo. App. 1991).
Here, not only was the claimant's response to the motion for summary judgment unsupported by other documentation, the claimant has not filed a brief in support of his petition to review. Therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986). We decline to speculate as to what facts the claimant contends need to be resolved.
The claimant additionally argues that the ALJ has wide discretion under § 8-42-102(3) C.R.S. in calculating the claimant's AWW, and the ALJ erred in failing to exercise that discretion. We also are not persuaded to interfere with the ALJ's order on this ground.
The ALJ rejected the claimant's reliance upon the discretionary computation provision found in § 8-42-102(3) C.R.S. The ALJ identified the issue as, not one of computation, but rather of what is includable as wages for the claimant under the applicable definitions found in § 8-40-201(19), C.R.S. The ALJ noted that "wages" as defined in § 8-40-201(19)(a), C.R.S., "shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury, either express or implied." The ALJ also noted that under § 8-40-201(19)(b), C.R.S. the term "wages" includes the following:
[T]he 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 insurance plan . . . 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 or the cost of the conversion of health insurance coverage, that advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make payment.
The ALJ reasoned that although the claimant may qualify for coverage under the employer's health insurance plan upon completion of 90 active, continuous days of employment this had not occurred at the time of the claimant's injury. The ALJ determined that the record did not establish that there would be any cost to the claimant to enroll in the employer's health insurance plan once the qualifying period of employment had been met. Thus, there was no cost to the claimant to continue the plan or convert to a similar or lesser plan that can be included into the claimant's AWW. The ALJ concluded that where there had been no termination of the employer's health insurance coverage because such coverage had not yet gone into effect, it follows that there was no cost for continuation or conversion to be included into the claimant's AWW.
The respondents argue that the present case is analogous to the case of Russell v. Colorado Div. of Employment, 786 P.2d 483 (Colo. App. 1989), where the court held that the AWW did not include amounts contributed by the employer for non-vested retirement benefits. In Russell, the issue was whether the employer's contributions to the Public Employees' Retirement Association (PERA) on behalf of claimant should be included in the AWW. The Panel concluded that the contributions could not be included because the claimant had worked less than the five years required for vesting, and consequently, the contributions had no value at the time of claimant's injury. The Court of Appeals determined that the Panel's conclusion was correct.
Here, we agree that the ALJ's exclusion of non-vested benefits in computing the claimant's AWW is consistent with Russell and appropriate under the circumstances. We therefore decline to interfere with that determination.
IT IS THEREFORE ORDERED that the ALJ's order dated April 5, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D Baird
_______________________ Dona Rhodes
CERTIFICATE OF MAILING
MICHAEL CONKLIN, LITTLETON, CO, (Claimant).
CORE-MARK INTERNATIONAL/COR, AURORA, CO, (Employer).
SEDGWICK CMS, Attn: BRETT OWENS, LEXINGTON, KY, (Insurer).
LAW OFFICE OF MARK A. SIMON, Attn: MARK A. SIMON, ESQ., DENVER, CO, (For Claimant).
WHITE STEELE, PC, Attn: LAURA D. FULLER, ESQ., DENVER, CO, (For Respondents).