Snyder Oil Co. v. Embree

Judge ROTHENBERG

dissenting.

I respectfully dissent.

*498Recently, our Supreme Court construed the same statute in Fulton v. King Soopers, 823 P.2d 709 (Colo.1992). There, the court rejected Fulton’s contention that a loss of wages from his delayed union advancement should be included in wage adjustments calculated under Colo.Sess.Laws 1990, ch. 62, § 8-42-110. (Repealed effective July 1, 1991, Colo.Sess.Laws 1991 at 1312). In so ruling, the supreme court stated that “[t]he incentive provided by the statute would be meaningless if the acts required to trigger the statutory limitation were outside the control of the employer.” (emphasis added)

Similarly, here, I agree with respondents that, under the Panel’s interpretation, “the acts required to trigger the statutory limitation were outside the control of the employer.”

Nor does our decision in St. Mary’s Church & Mission v. Industrial Commission, 735 P.2d 902 (Colo.App.1986) compel another result. There, claimant had five part-time jobs and worked by the hour. The issue was how to determine her average weekly wages for purposes of awarding workers’ compensation benefits. The court did not construe § 8-42-110(3), the statute at issue here. And, even assuming arguendo that St. Mary’s Church cannot be distinguished, I submit that the supreme court’s clear and directive language in Fulton is now controlling.

I would, therefore, set aside the order of the Industrial Claim Appeals Panel and remand with directions to apply § 8-42-110(3).