dissenting.
Because I disagree with the majority's construction of the controlling statutes and would, instead, reverse the judgment of the court of appeals, I respectfully dissent. I see little merit in attempting another point by point refutation of the majority's arguments, which I believe to have already been largely anticipated and effectively rebutted by the dissenting voice on the court of appeals. See Avalanche Indus., Inc. v. Indus. Claim Appeals Office, 166 P.3d 147 (Colo.App.2007) (Bernard, J., concurring in part and dissenting in part). I write separately, however, to identify what I consider to be the central problem with the majority's rationale and to emphasize the magnitude of its departure from the underlying philosophy of the workers' compensation scheme.
While our case law interpretations of the statutory scheme have long acknowledged great flexibility in the calculation of an injured employee's average weekly wage, they have never suggested that an award of compensation payments from an employer could be based on any wage or salary other than the employee's wage under his contract of employment with that employer. Fairness in the computation of an average weekly wage must account for variations in compensation plans, personal cireumstances, and even *602changes in the effects caused by an employee's injuries, but until today the scheme had not been construed to permit an award altogether unrelated to the rate at which the injured employee was recompensed by the employer ordered to pay it. Today, the majority finds it permissible (and perhaps even statutorily required) for an administrative officer to order a former employer to make compensation payments equal to a percentage of an injured employee's higher average wage, paid for services in a different job, acquired only after voluntarily leaving the former employer's employ, under a contract of employment with a completely different employer.
The majority seeks textual support in two very different places. First, it relies on a caveat to the general applicability of the statutory definitions, which include a definition of "wages," cautioning that they apply throughout the statutory scheme "unless the context otherwise requires." See § 8-40-201, C.R.S. (2008). Second, it defines an "injury" to occur only when the employee actually experiences a disablement, or increased disablement resulting from a worsening condition.
With regard to the former rationale, although "wages" are expressly defined to mean the rate at which the employee is recompensed under the contract of hire in force at the time of his injury, section 8-40-201(19)(a), C.R.S. (2008), the majority finds the statutory definition inapplicable whenever "fairness" in computing an average weekly wage would require otherwise. With regard to the latter, the majority finds that, in any event, where the ultimate disability occurs during a better-paid subsequent employment, as in this case, that disability could be treated as a second injury, requiring calculation of an average weekly wage at this higher rate, even according to statutorily prescribed methods. See § 8-42-102(2), C.R.S. (2008)
In light of the majority's newly minted definition of "injury," it is unclear to me why a presiding ALJ would ever have the discretion to treat a worsened disability as something other than a second and later "injury," which occurs under the later contract of employment. Furthermore, since the term "wages" by definition now refers to the rate at which the employee is recompensed under the contract of hire at the time of the employee's ultimate disability, disregarding the statutory definition as inapplicable would presumably be required in the interests of fairness only where payments calculated from the later salary would be unfair to the employee. Finally, however, if the employee's most recent injury does not even occur until his ultimate disability, it is unclear to me why any increased compensation to which he is entitled by his higher salary should not be paid by his employer at the time his second injury (that is to say, his ultimate disability) actually occurs.
Be all of that as it may, and notwithstanding my disagreements with the majority's reinterpretation of our case law and the historical development of the scheme, the central problem with the majority's construction is its rejection of the fundamental compromise upon which workers' compensation is premised: swift and certain entitlement by injured workers to a statutorily prescribed percentage of their wages in exchange for immunity from suit for civil damages. See Frank M. Hall & Co., Inc. v. Newsom, 125 P.3d 444, 446 (Colo.2005). Subjecting employers to liability for future wage contracts with different employers exposes them to damages for potential wage losses which they cannot foresee and over which they have no control.
If the General Assembly considered it reasonable and equitable to require employers to compensate injured employees according to their potential for future earnings, it could undoubtedly do so. In creating a plan for workers' compensation, however, it clearly rejected the fault, or tort, model. Although the statutory scheme contemplates reopening an order to account for worsening injuries, it most certainly does not permit a prediction of, or reopening an award to account for, increased earnings.
Defining the term "injury" so as to assign liability to former employers at wage levels attained only long after injured employees have left their employ reintroduces an element of civil damages, contrary to the principle upon which workers' compensation is based. Similarly, to construe the General *603Assembly's allowance for flexibility in caleu-lating an average weekly wage as permitting an administrative officer, based on his personal sense of fairness and equity, to overturn this fundamental choice overly strains credulity. Assuming that such an abdication could even be considered a valid delegation of legislative authority, it would truly amount to the proverbial exception that swallows the rule.
While I can appreciate the sentiment that it would be "unfair" to an injured worker not to account for her increased earning power by the time her injury has worsened and actually become incapacitating, it is arguably just as unfair to levee a former employer with compensation far beyond the wage he pays his employees. The statutory scheme attempts a solution to the problem of accidental workplace injury that is fair and manageable to both employees and employers. Unlike the majority, I do not believe that scheme should necessarily be construed to leave this delicate balance to the discretion of individual magistrates.
I therefore respectfully dissent.
I am authorized to state that Justice EID joins in this dissent.