Russell v. Colorado Division of Employment

TURSI, Judge,

dissenting.

I respectfully dissent.

Claimant is permanently and totally disabled. At the time of his injury his compensation from the State included a base pay of $1,408 per month, plus contributions of $.88 per month for life insurance, $53.12 per month for health insurance, and $171.78 toward his retirement.

It is undisputed that once claimant’s employment with the State is terminated, he has no vested right in continuing coverage or contributions toward or for life insurance, health insurance, or retirement benefits. Hence, I find the refusal to treat the employer’s contribution toward a retirement plan as part of claimant’s wages pursuant to the definition found in § 8-47-101(2), C.R.S. (1986 Repl.Yol. 3B) to *486be irreconcilable with this court’s treatment of contributions for health and life insurance.

Furthermore, the failure to include as wages that part of a compensation package intended to provide retirement security merely because the right to receive retirement benefits has not vested creates at best an anomaly and, at worst, an abomination. If the right to retirement benefits had, in fact, become vested, the very need that was to be provided for by the contribution at issue would be subsumed into the benefits being paid or payable by the eligibility or receipt of the vested disability or retirement benefit.

In Murphy v. Ampex Corp., 703 P.2d 632 (Colo.App. 1985), cert denied, we held that the value of an expanded group health coverage and a supplemental life insurance coverage should be included in determining the “wages” of a workmen’s compensation claimant. Since the announcement of Murphy, the general assembly has revisited the Workmen’s Compensation Act annually, and it has not taken these occasions to restrict our interpretation of the applicable statute. Further, in State Compensation Insurance Authority v. Smith, 768 P.2d 1256 (Colo.App.1988), cert. denied, applying Murphy, we held, inter alia, that the reasonable value of health insurance at the time of the injury should be construed as part of the term “wages” under. § 8-47-101(2) for purposes of temporary disability benefits. And, indeed, as in Murphy and Smith, here the employer’s contribution as part of claimant’s wage package was received on his behalf by the provider of the “other similar advantage.” Section 8-47-101(2).

Here, the State of Colorado, claimant’s employer, has voluntarily included in its wage package funding to assure future financial security to the employee for his family and himself. Accordingly, I find it unconscionable to reduce his benefits for permanent total disability by failing' to include in the computation of his “wages” a sum which may be used to replace the value of that retirement protection which would have been his but for the injury which he received in the scope and course of his employment.

I would, therefore, set aside the order of the Panel and remand for computation of proper benefits based upon an analysis that includes the State’s payment on behalf of a pension plan for the claimant.