*1 Axelson, (Colo.1997) (citing Heimer, County Dist. v. Adams Sch. (Colo.1996)). Because the Gen Assembly repealed implication
eral 8-40-202(1)(a)(I)(A)
portion of section which below,
Pepper challenged we do address Rather, challenge.
his constitutional we find 8-40-202(1)(a)(D)(A) insofar as section
irreconcilably conflicts with section 18-1-
901(8)({J)(IV.5)(E), portion of section 8-
40-202(1)(a)(I)(A) repealed implication.
Consequently, judgment we affirm the grounds. on different participate. EID
Justice does not
INDUSTRIAL CLAIM APPEALS OF
FICE; New World Van Lines of Colora
do, Liberty Mutual Fire Insurance Petitioners,
Company,
v. RAY, Respondent.
Carnell
Industrial Claim Sun
nyrest Care, Health and Pinna Assurance, Petitioners,
col
v. Marsh, Respondent.
Jodie Office;
Industrial Claim Nu Systems, Inc.;
Horizon Window Assurance,
Pinnacol Petitioners Ashmore, Respondent.
Chris 05SC632,05SC652,
Nos. 05SC757. Colorado,
Supreme Court of
En Banc.
Oct.
662 the cost of health
issue is whether the claimant calculated as the amount by coverage provided pay to obtain the employer under the contract ment, in the calculation of is to be included weekly wage if the average the claimant's purchase health insurance claimant does not General, is terminated. Suthers, Attorney employment Lau- his or her after W. John General, Rottersman, Attorney Assistant rie Ray that a appeals held The court of Colorado, Denver, Attorneys for Industrial weekly include must claimant's wage Appeals Office. Claim continu- cost of the amount of the claimant's Winbourn, Mott, Zarlengo Zarlengo, group health insurance tig employer's Denver, Colorado, Busser, claimant actu- At- regardless of whether the P.C., M. Seott Lines of Colora- torneys New World Van Ray, for ally purchased the insurance. Liberty Fire Insurance Com- Mutual Similarly, do and at 894-95.
pany. average weekly wage must held cost of amount of a claimant's include the Denver, Colorado, Steiner, At- Michael J. plan at the a or lesser conversion to torney Pinnacol Assurance. for term of expiration of the allowed Firm, Bisset, Denver, Law Jennifer Bisset coverage. Ray. Colorado, Attorneys Respondent for appar granted certiorari to resolve an Ricci, P.C., William Alexan- Alexander appeals' conflict between court ent Colorado, der, Jr., Attor- Springs, Colorado Ray decision decision and another Respondent Ashmore. neys for appeals in v. Industrial Midboe Stevenson, P.C., Stephanie J. Stephanie J. (Colo.App. Appeals Office, P.8d 648 Claim Colorado, Stevenson, At- Springs, Colorado 2008). Ray We affirm and hold torneys Respondent Marsh. for insurance is not purchase actual of health for cost of such benefits required order P.C., Sbarbaro, Office of O'Toole Law & calculation of a claim to be included Denver, Sbarbaro, O'Toole, A. D. John Neil average weekly wage. We also over ant's Colorado, Attorneys for Amicus Curiae inconsis to the extent that it is rule Midboe Associa- Compensation Education Workers opinion. with this tent tion. delivered the II. Facts MULLARKEY Chief Justice Opinion of the Court. job Ray injured on the while Carnell was I. Introduction driving moving for Van van New World injuries, Ray serious head compensa Lines. sustained three workers'
We consolidated
for
damage.
decided
the court
including frontal
tion cases
New World
brain
general
of liabili-
Lines filed a
admission
opinion: Ray v. Industrial
Van
purposes of this
(Colo.
benefits,
Office,
under her III. would have been The ALJ ruled $567.59. first, analysis begins, by discussing Our average weekly wage that Marsh's should not evolving "wages" definition of under the continuing include the cost of health insur Compensation Act from the Act's Workers' ance because she did not incur that inception "wages" in 1919 to the most recent review, cost. On the ICAO affirmed the Second, explore amendment we ALJ. The court of reversed the holdings interpreting of several cases light Ray, ICAO and remanded with meaning "wages" before and after directions to recalculate Marsh's benefits to Third, 1989 amendment. examine in we de include the cost of in her health Midboe, tail the rationale 88 P.3d at surance under COBRA. Marsh v. Indus. employers' argument and we find that the 04CA0911, No. 2005 Ray depends on the dicta of Midboe. Final- 2005) (not (Colo.App. Aug. WL 1887497 Ty, employers' argument we conclude that the publication). selected for language lacks foundation either the Ashmore, legislative Chris a fusion-welder for Nu of section or its Inc., Systems, history, conditioning Horizon Window sustained inclusion and the employer, weekly ceived from average in the benefits healthcare insurance. replacement health ee's cost benefits purchase of such actual wage on Ray, injured workers In the context com- workers' purpose of would frustrate percent sixty-six and two-thirds receive pensation. specified weekly wage for Workers' Under Colorado's disability, total temporary for of time period key wage" is the weekly Act, "average (2006), tempo- C.R.S. section 8-42-105 compen- to calculate used part of the formula claims, 8-42- disability section rary partial workers, and it is based injured sation (2006). 106 C.R.S. provided at the definition upon weekly 8-40-201(19): The determination *4 statutory turn, defi- on the wage, in is based the (a) to mean construed "wages" shall be 8-40-201(19)(b). § "wages." See nition of rendered the services money at which rate significant However, made legislature the of the contract recompensed under are that are in 1989 changes in the definition injury, the time of force at the hire in 1989, until the Ray. From 1919 applicable implied. express or either "wages" Act defined Workers' (b) include the "wages" shall term The services money at which the rate as "the continu- employee's cost the amount of of the con- recompensed under are rendered group health ing employer's the injury at the time hire in force tract of the contin- termination plan, upon of include the rea- 'wages' shall ... The term uation, conversion employee's of rent, board, housing, lodg- of sonable value plan, and inswrance or lesser to a similar advantages received any ing, or other the federal internal reported to gratuities 67, 4, § 8- ch. see. employer." See from the by or for the worker service revenue 409, 411. 47-101(2), Sess. Laws 1989 Colo. income tax filing federal purposes of any similar advan- "or other phrase board, of value the reasonable turns and includ- means for provided a flexible tages" from rent, housing, lodging received speci- not otherwise ing employment benefits of value employer, the reasonable "wages" definition. fied from by fixed and which shall determined particular by appeals in each decid- years, the division court of the facts Over any meaning similar ad- of case, involving not include but shall cases ed several specifically fringe vantage or case, benefit In one the statute. "wages" under (19). us, court in this subsection enumerated to the cases now before relevant If employer continues ad- injury, interpreted the "other similar of after specif- advantage fringe or pay any to in- language in the definition vantages" benefit (19), in this subsection life insurance ically enumerated of health and the value clude Murphy insurance cov- including the cost health by employer. provided such (Colo.App.1985). the conversion erage Ampex Corp., or advantage coverage, provi- construing such same health inswrance In another case sion, shall not be included in held that the value the court benefit wages so employee's measured determination insurance should be of health to make employer continues claimant would long as the that the replacement cost con- payment. such rather than the pay, have to injury. See State at the time of tribution added). un- 8-40-201(19)(emphasis § Smith, P.2d 1256 Comp. Ins. Auth. v. (b) in subsection language above derscored (Colo.App.1988). of health insurance the inclusion addresses weekly wage. in the benefits Assembly responded to these The General decisions, incorporating defined, appeals' statutorily means the "Wages," as the definition worker, it amended part, when by a in- them earned compensation total fringe specified which "wages" in 1989 and hourly wage, but also only the cluding not 67, ch. compensated. See to be were or "ad- benefits benefits certain enumerated 8-47-101(2), Laws 4, 1989 Colo. Sess. § see. the reasonable vantages," gratuities, as 8-40-201(19), 1, 411; see. ch. board, rent, lodging re- housing, value average weekly wage, The 1989 amend- culation of the Sess. Laws Colo. open-ended phrase, ment struck the "or upon employer-provided termination of bene- supporters advantages," fits. See id. The contended that other similar and narrowed 401(k) insurance and retirement claimant that life benefits benefits available to the could included the calculation of the should not be included in the definition "wages." There no Id. was discussion at the However, weekly wage. it the court codified hearing to the effect that the terminated compensate on appeals' discussion how required actually pur- should be claimants for the loss of health insurance chase health insurance. Id. specifying shall include "the cost of amount hearing, At the the Director of the Division employer's group emphasized equity of Labor a broad concern continuation, and, upon termination of the compensation in the workers' scheme where cost of conversion to a similar employers employer-provided terminate plan." Id. The amend- or lesser insurance employees health insurance benefits and are also the inclusion of health in- ment limited left to find alternative without that, by providing long surance benefits so benefit of health insurance rates. continues to for an employ- The Director testified that the amendment *5 coverage, ee's cost will remedy by allowing this concern in the calculation of the be included value of similar or lesser health insurance employee's wage. Id. average to be included in the week- ly wage. Id. significantly changed The 1989 amendment above, incep-
the law. As discussed
from its
construing
The first case
the amended
1919,
tion
the Workers'
"wages"
Schelly
definition was
v. Industrial
(Colo.
"wages"
Act's definition of
was written in
Appeals Office,
claimant's weekly wage. Howev- average in cluded his turn now to the cases before us. er, that when an It held the ICAO reversed. majority Ray, In relied on Humane Soci pay health insurance employer continues to Schelly distinguished Midboe. ety and benefits, weekly wage not should Reviewing Ray, 124 at 894. the 1989 or the employee's include either "wages" amendment to the definition pre- health insurance er's contribution to the history, no legislative Ray court found its "wages" explicitly mium because statute required to that the claimant was indication Specifically, the ICAO such inclusion. bars insurance before its cost purchase health 8-40- sentence of section relied on last in calcu included as a benefit could be states, "If, 201(19)(b), injury, after the which weekly wage. lating the claimant's ... pay employer continues distinguished Midboe on the Id. The court coverage ... such advan- health insurance that, Ray, the Midboe claim ground unlike in not included tage or benefit shall employment had not been terminated. ant's wages so determination of the Rather, employed and claimant remained long continues to make such employer as the employer pay its share continued (2006). 8-40-201(19)(b), payment." § C.R.S. Ray premiums. the health rea majority also declined to follow Midboe's the ICAOU's The court of affirmed [Id. contrast, Ray dissent Midboe, soning. In at 645-46. How- decision. Schelly distinguished ever, relied on Midboe and holding from its inter- was derived involving issues dif Society compari- and Humane pretation "wages" statute Ray. Id. at 895-96. ferent from those parallel Colorado son with COBRA and thirty days was within of the event that termi- argue Ray employers to us They urge this court to nates benefits in wrongly decided. order "continue" such statutory period. benefits for the of an health include the value 300bb-2(@); § 10-16-108(1)(e)(T), § average weekly wage U.S.C. part insurance as (2006). C.R.S. The term employee "conversion" has a only when an elects and continues special meaning applies under COBRA that according coverage to the method defined group plans. statute, COBRA, par- health COBRA allows equiva- the federal and the ticipants and beneficiaries statute, coverage whose is lent Colorado 10-16- group terminated to convert from 108(1)(e)(I), cov- COBRA-type pro- which extends erage policy. to an individual Group health employees subject tections to Colorado not plans provide participants must also and ben- employers argue the federal law. The option eficiaries with the same of conversion Ashmore, Ray, un- because and Marsh were period when the maximum of continuation able to for the continuation of their 300bb-2(5). coverage ends. See 42 U.S.C. premiums group health insurance at the full Finally, "termination" of continued terminations, employment rate after normally statutory occurs when the maxi- the entire benefit must be excluded from period coverage expires, mum although it 8-40-201(19)(b). "wages" under section In prior eighteen period can occur month words, employers other assert see- if, instance, employer an ceases to main- require tion and COBRA plan. tain a health insurance See id. actually purchase claimants this case to the health insurance order for the benefit cases, first, resolving present we "wages." to fall under the definition of As reject appeals' analysis in Mid- support proposition, employers for their dicta, unnecessary holding, boe as for its rely on Midboe. noted, Ray erroncous. As court Midboe factually distinguishable Ray from because argue employers The claimants employment involved a claimant whose reading are restrictions into the law that do was terminated. The Midboe claimant con- They appear point in the text. out that employer tinued to work for the same after COBRA is not referenced in the injury, and the continued to 840-201(19)(b) definition, and that section provide the same benefits. require does not Our Workers' Act makes the *7 continuing health insurance as a condition for employer's continuation of benefits a crucial the inclusion of healthcare benefits in their distinction. average weekly wage. The claimants further simply The narrow issue in Midboe was argue requiring employees actually that to pays whether the amount a claimant as his purchase replacement health insurance would premium group share of the for health and purpose frustrate the of the Workers' Com- coverage dental insurance must be included pensation Finally, Act. the claimants insist average weekly wage in the calculation of his that decided Midboe when the continues to erroneously employers' and that the reliance premium. share 8-40- Section misplaced. on that case is 201(19)(b) expressly question answers that in Thus, parties' argu- at the center of the negative, and was no need for the there split authority Ray ments is the between to seek out alternate mean- on Midboe the relevance of COBRA. ings "continuing" or "conversion." There- COBRA, employee Under who leaves his fore, cases, present employers' employment may or her continue health in- unavailing. reliance on Midboe's dicta is coverage eighteen surance for months at the Next, employee's expense, wording own but at the we look to the 8-40-201(19)(b). coverage, construing In rate. order to "continue" In stat employee notify employer in must writ- utes, give we must effect to the intent of the ing language employee right legislature by considering exercises the to first the employer may Vega People, continuation. The then re- of the statute. v. 898 P.2d (Colo.1995) Corsentino, quire partial payment coverage (citing Moody or full 112 injured (Colo.1998)). to disability and medical benefits Legislative 1855, 1370 P.2d employers, plain cost to from the at a reasonable primarily workers is determined intent statute, secondarily if necessity any litigation ...." language of the without (2006). unclear or 8-40-102(1), Adopting statute is language of the C.R.S. legislative his ambiguous, from the statute's for the technical language avoids the need Electric Co. v. (citing tory. Id. General prolonged drawing that has resulted line (Colo.1994]). In Niemet, other claimants litigation for and the the Workers' construing language of now before us. Act, previously held we have Compensation beyond step, going separate logical It is a to be remedial Act is "intended that the to conclude that plain language, liberally be purpose, and should beneficent "continuing" health insurance nee- "cost" of accomplish these to in order construed payment of health essarily means the actual Appeals Indus. Claim goals." Davison v. (Colo.2004). any language 1028,1029 In the absence insurance. Office,84 P.3d meaning, we will not conclude support to this section 8-40- plain language ambiguous statutory language is 201(19)(b) require says nothing that would terms dif merely COBRA uses the because purchase health claimants to use com ferently. The fact that two statutes of the insurance order for the cost referencing when parable terms weekly wage. included in the not mean that the General does text of our claimant that agree with the Assembly an unstated intent that CO had and does COBRA statute does not reference control Colorado's Workers' BRA would purchase of health require the actual Act. Roebuck & Co. See Sears employers fail to cite insurance. Office, v. Indus. Claim entirety of the Work- specific language in the 338(Colo.App.2006).1 for a possible It is supports Compensation Act ers' "convert" to another form claimant theory. Medicare, such as health care benefits 8-40- part of section The relevant example, purchasing "con without 201(19)(b) shall include provides tinuing" coverage as defined COBRA. of con- "the amount of Sears, 338; Schelly, 961 P.2d 140 P.3d at employer's group health insur- tinuing the appeals held in at 549. As the court of the con- upon termination of plan, ance Sears, requirements imposing the conversion tinuation, cost of conversion 10-16-108(1)(f)(Colorado's parallel of section plan." The or lesser insurance COBRA) 8-40- onto section statute is a "continuing" health insurance "cost" of 201(19)(b) limit conversion encompassing price both the phrase broad issued the insurer policies those which are actually purchasing health insurance and group policy. underwriting cost the price of what it would words, interpreted if we other *8 legislature's The purchase health insurance. only to limi broadly term "conversion" to relate language inclusive covers choice of 10-16- provided under section tations those who categories of claimants: both are 108(1)(f) COBRA, as or Medicare benefits purchase insurance after ter- able purchased from a as health insurance well not. read- mination and those who are Our av be excluded from different insurer would pur- with the ing of the statute is consistent weekly wage Schelly, erage calculations. See Compensation Act "to pose of the Workers' phrase delivery (holding at 961 P.2d quick and efficient assure the governs an "en- that "section 10-16-108 in Sears declined to 1. The court of provisions employ- "unambiguous" actually graft" right conversion at the obtain 10-16-108(1)(f)(Colorado's parallel "8-40-201(19)(b) of section expense," whereas section ee's 8-40-201(19)(b) COBRA) statute to onto purposes only the cost of insurance for concerns preclude the inclusion in because it would [employees] 'insur[ing] would that disabled average weekly wage of the cost of claimant's purchase to funds for the have access " policies converting benefits like to other medical (citing Ray, .' or lesser health insurance... Citing P.3d at 338. Sears, Medicare. 894). at Ray, appeals opinion the court noted in exclude "similar or lesser insurance" does not creased rather than increased if the prevailed. ers' view of 1989 amendment in Medicare from inclusion week Sears, ly wage); The Gen employers' argument The also fails to con- Assembly could not have intended eral this significant delay may sider the occur arbitrary, unfair from result its 1989 amend employment between the time of termination Accordingly, plain ment. we hold that actual receipt compensa- of workers' language of section does instance, tion benefits. For Marsh did not in require actually purchase a claimant fact payment receive a benefit over two until in health insurance order to include the cost years employment after her as a nurse's aid continuing injured health insurance in the Nevertheless, in order to con- weekly terminated. employee's average wage. COBRA, tinue under she would specific language if the Even absence payment have had to make actual within requiring purchase days employment after termination. thirty ambiguous, our were deemed research of the above, legislative history, as discussed finds Ray examples As the and Marsh demon- support specialized meaning to link the no strate, purchase a claimant will be able to "continuing" the terms in "conversion" becoming unemployed health insurance after Indeed, COBRA to the statute. only if he or she has other financial employers are unable cite relevant sources. Such fortunate cireumstances are legislative history supports posi- their unlikely to exist for most workers who are Therefore, nothing upon tion. with which to injured jobs. and have lost their argument base their their own asser- reasons, excluding For these hold that tions, we employers' position fails. Accord- health insurance from the calculation of a ingly, suggested the entwinement Midboe in average Wéekly wage claimant's if the claim- its dicta between COBRA section 8-40- 201(19)(b) purchase ant does not the insurance violates does not exist. Colorado's Work- the 1989 amendment. ers' Act does not intend in- jured purchase workers health- having care benefits as a condition to V. Conclusion weekly
benefits
included
wage.
rejéct
employers' argument
both
unsupported by
legisla
the statute and its
Finally,
employers' argument
history,
contrary
purposes
tive
and as
make a sham of the
1989 amendment
the 1989 amendment.
Section 8-40-
specifically added health insurance to the
216(19)(b)
require
does not
claimants who
computation
average weekly
of a claimant's
jobs
lose
wage.
compensation
Workers'
benefits are
converted health insurance under COBRA in
payments.
pay-
akin to subsistence
order for the benefit of health insurance to
replace,
ments do not
and are not intended to
employee's average weekly
be included in the
fully replace,
salary
lost
wage.
judgments
of the court of
above,
part
benefits. As
III
discussed
v. Industrial Claim
three
claimants involved
this case suffered
(Colo.App.2005);
Justice an cost question of whether participate. not EID does Justice insurance, the group health within continuing dissenting. Justice COATS statute, to in- was intended meaning of the majority's the to his only with by employee an disagree not any contribution I clude finding cases, coverage following a group but also particular in these conclusion only employee's cost disability, or statutory interpretation. of his approach to with its respectfully dissent. I therefore entirely coverage at his own continuing stopped con- his had expense, after principles of apply well-settled Rather than ap- Dismissing the intermediate tributing. majori- I interpretation, believe statutory legislative intent as search for pellate court's a broad declaration fixed on ty becomes majority simply unnecessary, completely as unreason- and dismisses legislative policy by question expressly answered declares statutory provi- specific reading of any able view, statute, which, of no in its admits majori- comport with the that does sions maj. meanings. op. at 667- alternative implement that how ty's view of best own majority neglects I also believe policy. construe independently responsibility intend- suggestion of an disparaging statute, reacting opinions COBRA, instead and therefore ed cross-reference panels, in other various court of require actual contin- any legislative intent cases, issues alto- with different concerned uation and conversion for this lacking precedential value gether and according to the terms of court in event. COBRA, however, majority openly ac- have knowledges the word "cost" could think- split in court Despite the meaning. par- one In common more than majority de- appeal, this ing that led to lance, it could refer to either the (2006), 8-40-201(19)(b), C.R.S. clares section by employee in incurred admitting one unambiguous, to be coverage price or health insurance Maj. op. at understanding. 668- reasonable health insurance which continued principles of statu- accepted 69. In terms or not he employee, whether available to means, construction, a conclusion tory Al- Maj. op. at 668. to take it. chooses "plain mean- course, statute has that the clearly meanings are incom- though the two unnecessary any further in- rendering ing," statutory majority considers the patible, 2A Norman quiry legislative intent. See into both, enough to include language itself broad Statutory Construc- Singer, Statutes and J. limita- of some additional in the absence ed.2000). (6th Rarely will a tion 45:02 former, language" of "plain tion to the capable or sentence particular word unambiguously the latter. means the statute any sophistication, communicatingan idea of receiving party, with- sending and between a greater context or to some out reference in- contrary, legislature had the On majority's reading purpose. I consider to mean "employee's cost" tended the term better, not even of this statute to be incur, he that an would if understanding only,reasonable much less the it continue his health were to legislature to by the language chosen precisely expressed have could much more communicate its intent. sentence, a conditional or that intent with form, simply by subjunctive verb using a majority largely on the court focuses Accept- referring price rather than cost. in Midboe v. Industrial appeals' opinion however, "price" terms ing, (Colo.App. Office, 88 P.3d interchangeably are often used 2008), of the terms "cost" criticizing its construction could understand the that reasonable minds being direct "continuing" and "conversion" "cost," tacitly assumed legislature to have statutory scheme references to Colorado's "price" at which employees to continue permitting terminated *10 employee, the effect to the group made available previous employer's be and convert their meaning, to be ambiguity in an Maj. op. at 667. would be plan. health insurance by interpretation. aids to employer's share, resolved other See over and above the paid § generally Singer, supra by himself, 2A 45:05. employee this formula actual- ly includes an increase in the average weekly Apparently recognizing the tenuousness wage beyond previously the benefit provided offers, explanation, majority in the employer. Id. alternative, legislature's that even if the use employer's An contribution for health in- ambigu- of the term "cost" were considered ous, nothing surance differs from the reasonable value of legislative history in the of this provision, admittedly which does not address room and in that it paid, and treated board all, support benefit, the matter at only Midboe's as a fringe employee if the perceived linkage maj. with COBRA. See chooses to invest in his health own insurance op. at an approach literally 669. Such incurring stands additional costs himself. In the judicial ambiguous legisla- resolution of willingness absence of his to incur that ex- head, only presum- pense, tive enactments on its may the employee not be entitled to ing particular a any intent from a lack of receive health benefit from the specific contrary, historical reference to the By permitting er. employees disabled ignoring important other indicators of include their full continuing cost of and con- intent, legislative like larger verting context within a their health it were a if scheme, statutory timing the nature component and of the rate at which their services statutory changes existing relative to provi- recompensed were under their contract of events, public sions and external and policy hire, legislature has pro- unquestionably likely motivating specific legislative concerns vided incentive for them to continue choices. health coverage insurance themselves ' dependents. and Furthermore, be- Apart itself, language from the chosen employee's disability cause an benefit con- however, legislature's unique treatment only percentage of his sists points of health insurance benefits to an actu- weekly wage (according majority, two- al, contingent, rather than employee expense. thirds in the case someone situated simi- here, In the 1989 amendments at issue larly Ray, maj. op. 664), at with this general assembly completely eliminated the legislature formula the has also maintained provision catch-all for "other similar advan- approximately the obligations same relative tages" and allowed in the calculation of an employer in continuing the employee's average weekly wage only those employee's health coverage. insurance Even advantages fringe or benefits enumerated in express intent, without an declaration of maj. op. the statute. (citing ch. rationale for this apparent. formula is 8-47-101(2), § see. 1989 Colo. Sess. Furthermore, 411). by eraphatically rejecting Along Laws with the reasonable board, value of room and appeals' statute pre-1989 included treatment of advantage fringe as an or benefit "any "the cost of health insurance as other similar advan- ]," health insurance or the tage[ cost the "reasonable value" of which was conversion of such health insurance cover- employee's average be added to the week- age;" employer benefit, but unlike the amount an ly wage had as a spe- and instead paying board, been for room and it cifically defining mandated the "benefit" as the "em- that the amount an ployee's had been con- continuing cost of employer's tributing to health insurance group not to be includ- plan," general ed the calculation weekly wage. assembly demonstrates a clear intention to Instead, legislature judicial substituted for eliminate discretion in the matter and figure of continuing make the benefit a determinable amount. 8-40-201(19). plan, health legislature could there- "price" by fore have referring upon continuation, meant termination of the employee's cost of conversion to a similar price "cost" if plan. lesser employers' Id. Because converting employer's group health in- plans may, do, typically program surance were a determinable quire portion that a price, amount. Because *11 to a and conversion
permits continuation Realty LANE, plan, as the Lane insurance" Robert B. lesser d/b/a "similar Plaintiff, Company, notes, maj. op. at the cost majority see converting continuing or employee of to the precisely known cannot be URGITUS, M. Richard Ronald J. actually pur- until, unless, Calhoun, and Richard CB particular plan. chases a Ellis, Inc., Defendants. statute, majority as the Understanding the No. 06SA49. continuing health does, to treat benefit, though even as a Colorado, Supreme Court of the increase not to use employee chooses En Banc. purpose, disability for benefit 23, 2006. Oct. formula carefully worked-out deprives this employees who had gives any significance; being injured a
accepted coverage before not; those who had
meaningless over windfall policy interest public
and emasculates injured workers to
providing an incentive coverage. health While
continue their delay are hardships of transactional
potential virtually any legal proceeding, the
realities of delay in-
majority suggest cannot continuation of by requiring actual
creased increasing benefits coverage, or that failure to contin- employee despite his
for the serves the coverage better
ue health merely points to It care needs.
ee's health employees, even this that for some
the fact meaningful incen- may provide a
option
tive. mind, majority's interpretation my
To disability more than increase
does little by an injured employees, of certain
checks money rate is unrelated
amount recompensed services were which their appro- disability, ignoring
before their while continuity, symme-
priate considerations policy in
try, public the determination respectfully I therefore
legislative intent.
dissent.