Avalanche Industries, Inc. v. Clark

Justice RICE,

dissenting.

At issue in this case is an administrative law judge's ("ALJ") discretion to base an injured employee's compensation benefits in a reopened claim not on the worker's wage at the time he or she was injured, but rather on his or her wage at the time the claim is reopened. Unlike the majority, I view the *599Workers' Compensation Act as providing a statice snapshot of the worker's cireumstances at the time of the injury. I would therefore reverse the court of appeals in this case and base the claimant's award on the salary earned at the time of the injury, and I thus respectfully dissent.

I. Statutory History

Throughout the history of the Workers' Compensation Act, a claimant's benefits have been based on the injured employee's average weekly wage ("AWW"). Ch. 210, § 47, 1919 Colo. Sess. Laws 716-17. The AWW has consistently been calculated using the employee's wage earned at the time of the injury. As far back as 1919, an employee's "wages" were defined as the "money rate at which the services rendered are recompensed under the contract of hire in force at the time of the accident." Id. The statute originally provided a method for computing the AWW (summing the amount earned for six months before the accident and dividing by twenty-six), and allowed for the use of other computation methods if the preseribed method would not "fairly compute" the AWW. Id.

In 1986, the statute was modified to provide for calculation of the AWW for workers paid by the month, week, day, or hour. Despite this change, each provision still referenced the wage received at the time of the injury. The statutory framework continued to allow for some discretion where the specified mode of calculation would not fairly compute the AWW. Ch. 275, § 1, 1987 Colo. Sess. Laws 1380-83.

Over the past seventy years, the fundamental structure of the Workers' Compensation Act has remained virtually unchanged. See, eg., C.8S.A.1985, ch. 97, § 326; § 81-8-1, C.R.S. (1958); § 81-8-1, C.R.S. (1968); § 8-47-101, C.R.S. (1978). The workers' compensation statutes were heavily revised in 1990, but the computation of benefits was not affected. See ch. 62, §§ 8-40-201(19), 8-42-102, 1990 Colo. Sess. Laws 470, 486-87.

Today, an employee's compensation under the statute is still calculated based upon the AWW. § 8-42-102(1), C.R.S. (2008). The term "wages" is still defined as the money earned by the employee at the time of the injury. § 8-40-201(19)(a), CRS. (2008). There are still different modes of calculation, depending on how often the employee is paid, and each mode refers to the employee's pay at the time of the injury. § 8-42-102(2)(a)-(d), C.R.S. (2008). The statute still allows for some discretion in cases where, because of the nature of the employment, because the employee has not worked long enough, or for any other reason, the listed methods of caleu-lation will not fairly compute the AWW. § 8-42-102(8), C.R.S. (2008).

II. Prior Interpretation

We have repeatedly interpreted the workers' compensation statutes consistently with their plain language, holding that the AWW is to be computed according to the wage received by the employee at the time of the injury.

When interpreting the term "wages" in order to calculate temporary disability awards, we have followed the General Assembly's direction that "where the word 'wages' is used ... it shall be construed to mean money rate at which the services are recompensed under the contract of hire in force at the time of the accident'" Roeder v. Indus. Comm'n, 97 Colo. 188, 185, 46 P.2d 898, 899 (1935) (emphasis in original).

Similarly, we have interpreted "earning capacity," (the former term for AWW in the temporary disability statute) to rely on the wages at the time of the injury. State Comp. Ins. Fund v. Lyttle, 151 Colo. 590, 598, 380 P.2d 62, 64 (1968) ("[The term 'earning capacity' ... must be related to the money rate at which the services are recompensed under the contract of hire at the time of the accident.").

We have explained the importance of consistency in calculating the AWW:

In order to effectuate the [Workers' Compensation] Act's basic goals of speedy and reliable compensation of injured workers, the General Assembly has enacted a formula which calculates awards to an injured worker based on loss of earning power at the time of injury. The formula allows all parties involved to determine with some *600degree of certainty the amount of compensation to which the worker is entitled. Not only does this certainty aid the parties in reaching prompt agreement on compensation issues, it also aids the state insurance compensation fund and other insurors in setting employer premiums.

Bellendir v. Kezer, 648 P.2d 645, 647 (Colo. 1982) (internal citations omitted).

Finally, as discussed more fully below, we held in Coates, Reid & Waldron v. Vigil, 856 P.2d 850, 855 (Colo.19983) that when an employee who has previously been injured suffers a second injury, "the claimant's disability benefits are derived from his or her [AWW] in effect at the time of the subject injury." Here, the majority, in advocating an expanded definition of AWW, relies in part on Coates. In my view, our decision in Coates makes clear that the computation of AWW must generally be made with reference to the compensation earned at the time of the disabling injury. The majority, in contrast, views Coates as a move away from basing the

AWW on the employee's wage at the time of the injury.

A look at the statutory predecessor to the current version of section 8-42-104(1), C.R.S. (2008), and the way it has been interpreted, is supportive of my view of the proper seope of our Coates holding.1

The previous version of section 8-42-104(1) stated:

The fact that an employee has suffered a previous disability or received compensation therefor shall not preclude compensation for a later injury or for death, but in determining compensation for the later injury or death, the employee's average weekly earnings shall be such sum as will reasonably represent the employee's average weekly earning capacity at the time of the later injury and shall be arrived at according to and subject to the limitations in [the predecessor statute to § 842-102].

Ch. 62, § 8-42-104(1), 1990 Colo. Sess. Laws 490.

The court of appeals in Coates misapplied this language. The ALJ concluded that in awarding permanent disability benefits to an employee who was injured on two separate occasions while working for the same employer, the AWW should be calculated based on the employee's income at the time the second injury occurred. The court of appeals reversed the ALJ's decision, holding that the AWW should have been calculated based on the employee's earnings at the time the first injury occurred. Vigil v. Indus. Claim Appeals Office, 841 P.2d 885 (Colo. App.1992), aff'd in part and rev'd in part, Coates, 856 P.2d at 858.

We affirmed the court of appeals' conclusion that ALJs are afforded discretion in calculating the AWW in cases where the prescribed method was unfair. However, we reversed the court's ruling that the ALJ's discretion should have been invoked to calculate the claimant's AWW based on her higher income at the time of her earlier injury. We warned that this discretion should only be invoked in the rare cireumstances "where the standard statutory methods of computing a claimant's [AWW] work a gross inequity to the claimant," and we refused to authorize a computation of benefits divorced from the claimant's compensation at the time of the injury. Coates, 856 P.2d at 857. Thus, our analysis and conclusion in Coates fit squarely within the statutory framework that mandates computation of a claimant's AWW based upon his or her earnings at the time he or she was injured.

Our intention to stay within the statutory framework is further reinforced by the manner in which we distinguished Dugan v. Industrial Commission, 690 P.2d 267 (Colo. App.1984), where the claimant was injured two days after switching employers and taking a pay cut. The claimant wanted his AWW to be calculated based upon the higher wage he received from his previous employer, but the court of appeals refused, holding that it would be unfair to require his new employer to compensate him based upon a *601higher hourly wage than it paid him. We distinguished Dugan by stating:

[The claimant [in Dugan] had not suffered any injury while employed in his higher-paid position, and only became injured after he had commenced working in the latter employment position; thus there was no evidence that, absent the single injury, he would have earned more than the amount of his wages at the later, lower-paying position.

Coates, 856 P.2d at 856 n. 8. Because the claimant in Dugan was not injured while receiving the higher wage, the ALJ did not have discretion to compute his AWW based upon that higher wage.

In sum, in cases where we and the court of appeals have approved an ALJ's discretionary modification of the default computation of a claimant's AWW, that computation has remained tied to the claimant's compensation at the time of the injury. See Williams Bros. v. Grimm, 88 Colo. 416, 297 P. 1008 (19831) (including in total time worked eleven weeks of "forced" vacation); Drywall Products v. Constuble, 882 P.2d 957 (Colo.App. 1991) (retroactively applying rate employee had begun to earn shortly before injury to avoid unfair underpayment of benefits); R.J.S. Painting v. Indus. Comm'n, 732 P.2d 2839 (Colo.App.1986) (multiplying hourly rate earned at time of injury by actual hours worked per week instead of by forty hours); W. Sizslin Steak House v. Axton, TOl P.2d 96 (Colo.App.1984) (same). In each of these cases, the ALJ strayed from the prescribed statutory method of calculating a claimant's AWW, but the calculation was nonetheless always tied to the claimant's compensation at the time of the injury.

Dismissing the consistent precedent de-seribed above, the majority in error relies on Campbell v. IBM Corp., 867 P.2d 77 (Colo. App.1998). Campbell can easily be distinguished from this case. In Campbell, the claimant suffered from an occupational disease; in such cases, "the 'time of injury' is generally held to be the time of last exposure or onset of disability." Campbell, 867 P.2d at 81. Based upon that definition, it was not error for the ALJ to calculate the claimant's AWW with reference to her wages earned at the time she became disabled-deffinitionally equivalent to the time of her injury. In this case, however, the claimant suffered from an accidental injury rather than an occupational disease. As such, the AWW should have been calculated based on the claimant's wages at the time of injury.

III Conclusion

Nothing less than the stability of the workers' compensation system is at risk in this case. Because I believe that the legislature clearly intended for the AWW to be calculated on the basis of the wages earned at the time of the claimant's injury in order to provide certainty to all parties involved, I respectfully dissent.

I am authorized to state Justice EID joins in this dissent.

. This predecessor was the version of the statute at issue in Coates. For purposes of the issue at hand, the version in effect here is the same.