*1 259 requirements minimum compliance safety the National Electric with Safe- elec- industry.” (“NESC”) in tric ty Code constitutes conduct safety minimum conformity with the Therefore, I specially concur. industry. quirements of the electrical A simple
Instruction 20 is defective pre-
reason it creates a rebuttable
sumption compliance with NESC is
equivalent good “accepted engineering practice industry.” my in the electric SNYDER OIL COMPANY Colorado opinion, only phrase the use of it is Authority, Insurance 20 flawed renders Instruction Petitioners, party’s compliance of a characterization congruent industry standards as with v. “accepted practice” good engineering finds EMBREE; Frank The Industrial Claim support statutory nor in neither common Colorado; Appeals Office State law. Labor, Director, Division of Re- clear, however, It is that the common law spondents. compliance rule recognizes that with ac No. 92SC437. cepted industry con standards amounts to corresponding safety duct to the minimum Colorado, Supreme Court requirements See, given industry. En Banc. Co., Inc., e.g., v. Patton Elec. 781 Meisner (D.Neb.1990); F.Supp. 15, 1432 Kirkendall v. Nov. Co., F.Supp.
Harbor 698 768 Ins.
(W.D.Ark.1988), (8th 887 F.2d aff'd, 857
Cir.1989). al., Page See also W. Keeton et
Prosser on the Law and Keeton Torts 36, 1984), (5th at 233 ed. Restate § (Second)
ment Torts 288C cmt. a § (1965). Furthermore, provisions specifically recognized
NESC have been industry
the accepted standards for the See, industry. e.g.,
electrical Cerretti v. Coop. Ass’n,
Flint Elec. 251 Hills Rural (1992);
Kan.
Montana (1988); Sulpher Springs Valley
P.2d 140 14 Coop., Verdugo, Ariz.App.
Elec. Inc. v. (1971); Kemp 481 P.2d 511 Wiscon Co., 44 Wis.2d 172
sin Elec. Power (1969);
N.W.2d Gladden v. Mis Co., 277
souri Public Serv. S.W.2d
(Mo.1955).
Thus, retrial, opinion that on I am of the
Yampa to an Valley is entitled instruction
which is to Instruction with the identical “accepted good
offending phrase engineer-
ing practice industry” in the electric elimi- phrase replaced
nated and “the *2 Steiner, Denver, petition-
Michael J. Compensation Authority ers Colorado Ins. Oil Co. Koppes, Greeley, respondent Rebecca Frank Embree.
Justice KIRSHBAUM delivered the Opinion of the Court. Embree,
In Snyder
tion for and (1990 Supp.). 3B Em- C.R.S. § appeals with directions. to the court of Snyder bree contested Oil’s admission requested liability subsequently and a hear- I ing judge before an administrative law con- a February employed while In disability cerning permanent benefits and Snyder Oil, on a slipped Embree pumper disfigurement. tank slick stairway production made injuries and sustained to his with oil ice and September hearing, At the Embree thereafter, Shortly left hip and shoulder. employed at that while he was testified Snyder again performing work for while self-employed a Snyder Oil he was also Oil, re-injured Embree his left shoulder dairy farmer. stated that because Embree loading a flat tire onto the bed of while a performing injuries prevented him from his pickup truck. requiring and irrigation other activities lifting necessary to maintain the heavy filed subsequently Embree a workers’ farm, loss in he had suffered some reve- De- compensation claim with Colorado hearing, Employment. At the partment of Labor and See nue. conclusion 8-53-101, (1986) (repealed Em- judge SB C.R.S. found that administrative law § 1990). Snyder liability for Sny- Oil admitted employment to his bree returned temporary disability in total the amount July of rate of 1988 at same der Oil $3,937.14 partial disabil- for Snyder from Oil pay he had received $3,120. Snyder Oil ity in the amount of a functional injury; his that he suffered liability perma- its for based admission of percent of nine the whole impairment disability on 8-42- partial nent section unit; working and that he was body as a 110(3), provides as follows: which statute dairy farmer. The to work as not able (3) any case where administrative found that Em- judge law em- reemploys or continues disabled only to return to one of bree was able ployee employment in the work at the time occupations he held two employee’s preinjury employer at extends judge law determined The administrative adjustments, wage the usual qualify for Snyder Oil order permanent partial disability award ee’s established sec- limitations permanent medical be limited to shall have had to reem- it would payment under section impairment or a equivalent ploy Embree a rate 8-42-107, is less. This sub- whichever previously received he from both the sums (3) apply if director shall not judge law occupations. The administrative finds that due to the Snyder had Oil concluded because permanently perform unable to pay equal at a rate of reemployed Embree If, employer. dur- offered duties receiving he salary level was only to years following the date of the two company injured, when he was from the reemployment, the in- to work or return applicable was em- employee, as a result of said jured permanent partial Snyder Oil was liable for permanent disability due to the
ployee’s $16,- in the amount of benefits employment injury, is dismissed review, Upon Industrial 286.40. Claim resigns the em- petition Appeals Office affirmed. ployer, said wage pay” adjustments” and “usual are appealed the decision to the affirmed, appeals. arrangements The court con- payment court of limited to the be- ap- cluding that section is not injured employee and the em- tween the upon reemployment plicable unless ployer payment of disabili- who is liable equal claimant receives remuneration ty injury-producing pay from the total of his or her employer. performed work might Noting that its decision all sources. meaning recently We considered employers, the court result added cost 8-42-110(3) in purpose of section Fulton reasoned that its construction of the stat- (Colo.1992). Soopers, King legislative policy pro- ute furthered the claimant, In that case the a member of viding an incentive for to contin- *4 union, injured during was employees employ ue to their disabled King Soopers. Two months after the pay. preinjury rates of
injury, the claimant returned to work at his
II
However,
pay.
rate of
as a re-
sult of his
the claimant was not
argues that section 8-
position
journeyman
to
elevated
42-110(3)
applicable
employ
to limit an
is
by
approximately
the union until
mechanic
when,
here,
liability
injured
er’s
an
em
three months later than would have been
ployee
reemployed
at the rate of
is
injured.
the case had he not been
paid
employee by
employer pri-
to that
agree.
or to the
We
King Soopers asserted that
the limita-
principles
Well established
of
employer liability
tions on
for workers’
statutory
guide the resolution
construction
compensation benefits established
sec-
presented.
of the issue
Statutes are to be
it. The
were available to
construed in such manner as to further the
argued that
his elevation
claimant
because
legislative
they
intent for which
were en
wage
journeyman
to
status was a usual
Pinder,
acted. Civil Serv. Comm’n v.
812 adjustment
King Soopers did
and because
(Colo.1991).
P.2d
648
To discern the
wage
actually
him
higher
not
until he
Assembly,
intent of the General
we first
classification,
higher job
King
obtained
language
examine the
of
the statute.
Soopers did not extend to him the usual
Williams,
Group,
805
Farmers
Inc. v.
wage adjustments required by the statute
(Colo.1991).
422
P.2d
Words and
eligible
and was therefore not
to benefit
phrases
given
according
should be
effect
to
provisions.
from its
plain
ordinary meaning
their
unless the
rejected
claimant’s construction
We
Dep
result is absurd.
't Social
Colorado
of
8-42-110(3).
Comm’rs,
of section
We noted that
City
697 P.2d
Servs. v. Board of
statute,
(Colo.1985).
statutory
enacting that
the General Assem
18
Where the
lan
guage
unambiguous,
attempted
provide
we need bly
is clear and
an incentive for
interpretative
not
rules of statuto
employers
employees
resort
to rehire disabled
ry
Rogers,
construction.
employers
Van Waters &
which
turn would benefit both
(Colo.
Keelan,
Inc. v.
840 P.2d
Fulton,
employees.
P.2d
715.
1992).
Appeals
See Boice
Industrial Claim
1339, 1341
Office,
(Colo.App.1990).
800 P.2d
8-42-110(3) provides benefits for
Section
employers
We stated that
would benefit
partial
an
liable for
they
save on their
would
employee injured
an
disability benefits to
permanent partial disability
and would
ap-
working
employer.
for that
It
while
expense
training
employ
save the
of
new
plies only
reemploys
who
an
Fulton,
ees.
We designed penalize the statute would be rendered created The statute is not to so required trigger meaningless “if the acts employers reemploy workers are who who were outside the statutory limitation Furthermore, self-employed. also if the employer.” Id. at 714. We control applicability statutory is limitations employers if their suggested that others, determined the conduct of no applica- unable to control the conduct were required could acts control “the limitation, statutory they bility trigger statutory limitation.” Ful- advantage taking be deterred ton, provisions, contrary reemployment detri- intent and to the legislative to the designed The statute encour employers partially dis- ment both age, discourage, reemployment not of in employees. Id. at 714-15. We thus abled potentially prohibi The jured employees. up- because the decision concluded that consequences consid tive cost mechanic journeyman the claimant to grade ering reemploy injured employ whether union, responsibility adoption ees indicates that King of the statute Soopers, construction urged by construction Embree would ren King prevented Soopers qualify- *5 der the incentive established therein mean the ing for would contravene its benefits However, ingless. section also legislative intent. protections employees. By for its contains ease, Snyder to sought In this Oil take terms, not applicable the section is if the advantage reemployment the incentive of perform to employee permanently is unable 8-42-110(3) by reemploying Em- of section by employer. the offered the The duties by Oil wage paid Snyder rate to bree provides injured that an em statute also prior court injury. Embree to The of request may of ployee redetermination 8-42-110(3) did appeals held that section permanent partial disability award apply Snyder ground on the that not Oil any during two-year period time follow employee’s purposes of the statute an if, reemployment her as a result his or pay sums the preinjury rate of includes disability of the caused prior employee employ- received from all injury, resigns is dismissed opinion The its ers. court reconciled encouraging em employment. from While by noting in that un- our decision Fulton ployers reemploy injured employees, the case, in like the situation wherein the protected Assembly injured also General required acts to fulfill exploitation by unprinci employees indepen- quirements were decisions made pled employers. in dently party, a third this case “the controlling employer capable is still of its pur have determined that for We statutory require- compliance
own provided employers poses of the benefits trigger ments that the limitation on disabil- Co., the relevant of compensation_” Snyder by section rate ity reject paid by reemploying P.2d 496. conclusion. is We the amount injured prior employer employee multiple employers When an of regard injury, to income from without may injured, is some those previously enjoyed by other prior employment wish continue the not conclude, therefore con employee. We However, relationship.2 injured when the trary to the determination of court self-employed, employee is also such em- appeals, of this circumstances ployee may elect not to retain himself or subject provisions case Oil is to the pay solely rate herself at the 8-42-110(3) and, therefore, is of section permanent partial his or her to ensure that provided disability are not if entitled to benefits therein. reduced anoth- farming per- disputed tain he had It is that as a result of his work- strenuous activities carry could not out formed related Embree cer- to.the III pay- reduce its ments when the rehires the work- reasons, foregoing For the we reverse salary employ- er at a that is less than the judgment appeals. court of The pre-injury wages ee’s from former case is that court for remanded to remand majority deny ment. The full dis- Appeals to the Industrial Claim Office with and, ability the worker benefits to at the apply directions to time, employer liability same reduce of this case consistent circumstances disability payments “penalize so as to not opinion. with this result, employers.” Op. at 263. This granting reduced liability J., SCOTT, dissents. conferring corresponding without benefit MULLARKEY, JJ., join LOHR and return, employees contrary to both the dissent. spirit the letter and of our Workers’ Com- pensation Act.2 dissenting: Justice SCOTT The majority purposes holds that “for compensation Our workers’ laws are in- provided employers by the benefits compensate wage- for the loss tended (1990 Supp.),] C.R.S. [3B earning capacity to a inju- due paid by is the relevant rate of amount ry. arising pre-1990 provi- cases under injured to the reemploying Act, sions of the Workers’ injury, prior to the without re- expressly recognized the Act gard employment pre- to income other liberally should accomplish be construed viously enjoyed employee.” Op. its benevolent full remedial purposes interpretation 263-264. such an Because protecting employees who sustain work- compensation our state workers’ law *6 See, injuries. related e.g., Bellindir v. unfairly disability compensa- reduces the Kezer, 645, (Colo.1982); 647 648 P.2d payments paid tion otherwise to workers Claimants Death Garner v. Vanadium of unduly employers, respectful- and I favors 358, 360, 1205, Corp., 194 572 Colo. P.2d ly dissent. (1977); Serv., 1206-07 Frohlick Crane Inc. Mack, 34, 38, 182 Colo. 893
I
(1973);
Irrigation
James v.
Motor &
legal
Co., Inc.,
195, 199,
The
the
Pump
issue before
court is wheth-
180 Colo.
503
8-42-110(3)1
(1972).
er under
employer
section
an
P.2d
it
1028
Thus
is clear
Demko,
8-42-110(3)
language
ly
1. The relevant
of section
United States v.
385 U.S.
382, 383,
provides
(1966) (“Histori
that in
S.Ct.
ring Thus, under majority’s holding, Snyder Oil is able experience benefit from Embree’s
training, and at the same time to limit its compensation is,
workers' liability. That
by permitting Snyder advantage Oil to take limitation, statutory liability
of the the ma-
jority in fully effect allows enjoy statutory pro- intended Colorado, The PEOPLE of the State vision, expense but at the of Frank Em- Plaintiff-Appellant,
bree, workers, one of its whose work-relat- v. injuries prevent ed him working now farm, dairy earning wages and from Billy LONGORIA, Joe Defendants at the same level as he had to sustain- Appellee. disability.4 Colorado, The PEOPLE of the State of
IV Plaintiff-Appellant, I interpretation believe the correct of sec- consistent with objec- tives which underlie Gary EKIN, compen- the workers’ Defendant-Appellee. Dean comports sation laws and one that with the 92SA502, Nos. 93SA38. spirit scheme, would be to application limit its to those workers who Supreme Colorado, Court employed by only are one or who En Banc. compensation receive total after Nov. equivalent pre-injury to their pay. way, the disabled fully compensated be either
receipt comprehensive disability compen- *8 benefits,
sation the identical
income received to his or her thought,
As a final I wish to add that majority
under the opinion, the efforts of
men and women who must take on addi-
tional work in the course of providing for disregarded
their own are now whenever injured reemployed salary worker is at a does fairly represent
which his or her dairy pumper, Annual income from Embree’s farm was able to return to work at |2,000 approximately amounted to limitations; however, which com- Oil with no because his prised twenty percent pre-injury almost of his self-employment shoveling as a farmer involved compensation. heavy lifting, he was unable to return to his prior, self-employed farming. Embree, 4. The record is uncontroverted that week, employed days eight day five hours a