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Midboe v. Industrial Claim Appeal Office of the State of Colorado9/25/2003
ORDER AFFIRMED
Dailey and Loeb, JJ., concur
Koncilja & Koncilja, P.C., Lawrence D. Saunders, Pueblo, Colorado, for Petitioner Ken Salazar, Attorney General, Y.E. Scott, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office Michael J. Steiner, Brandee Defalco Galvin, Denver, Colorado, for Respondent Pinnacol Assurance
In this workers' compensation proceeding, William Midboe (claimant) seeks review of the calculation of his average weekly wage (AWW) entered as part of the final order of the Industrial Claim Appeals Office (Panel) awarding him benefits. We affirm.
Claimant sustained an industrial injury in 2000 while employed by the State of Colorado (employer). Although he suffered both a temporary and permanent disability, he continues to work for employer.
Before and after to the injury, claimant received health and dental insurance as a benefit of employment. Claimant paid $258.76 per month for his share of the health insurance premium and $42.50 per month for his share of the dental insurance premium. Employer paid the remaining portion of the premiums. Following a rate increase in 2002, claimant's contribution increased to $304.26 per month for the health insurance premium and decreased to $20.66 for the dental insurance premium. Including these amounts would have increased his AWW from $678 to $747.52 and then, after the rate increase, to $752.98.
The issue presented for review is whether the amount claimant pays as his share of the premium for group health and dental insurance coverage must be included in the calculation of his AWW. The administrative law judge (ALJ) agreed with claimant that his insurance cost should be included in the calculation of his AWW. However, the Panel determined that the ALJ misconstrued the pertinent statute and that, as long as the employer continued to pay a portion of the premium, claimant's AWW should not be increased by his contribution. We agree with the Panel that the AWW is not to be increased under such circumstances, but we reach that conclusion based upon a different interpretation of the statute.
Section 8-40-201(19)(b), C.R.S. 2002, the statute pertinent here, provides:
The term "wages" shall include the amount of the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan, and gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns and the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but shall not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of such health insurance coverage, such advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make such payment.
(Emphasis added)
When a reviewing court construes a statute, it must determine and give effect to the intent of the legislature by affording the language of the statute its plain and ordinary meaning. Magnetic Eng'g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). However, if a statute is fairly susceptible of more than one interpretation,
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