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Ray v. Industrial Claim Appeals Office of the State of Colorado7/14/2005
P.3d at 549, expressly rejected the insurer's contention that a claimant must establish that she had actually obtained continuing dental coverage before she was entitled to reimbursement by way of increased AWW. The division held that whether the claimant had purchased continuing insurance was irrelevant because "the statute does not require proof that the claimant has actually purchased coverage." In interpreting § 8-40-201(19)(b) to reach its conclusion, the division held, "When and where to purchase coverage is a decision for the claimant. The statute merely seeks to ensure that the claimant will have funds available to make the purchase." Humane Soc'y, supra, 26 P.3d at 549.
However, in Midboe v. Industrial Claim Appeals Office, supra, a division of this court construed the word "continuing" as used in § 8-40-201(19)(b) and held that the statute does not allow the inclusion of the employee's cost of the employer's group health insurance plan in the employee's AWW while the employee continues employment with the same employer. In Midboe, however, the claimant's employment had not been terminated, and the employer continued to pay a portion of the claimant's premium. Thus, the specific issue presented for review was whether, during continued employment, the amount the claimant pays as his or her share of the premium for group health and dental insurance coverage must be included in the calculation of AWW.
The Midboe division did not address the issue here, that is, whether an employee who has been terminated from employment following an injury is required to purchase a continuing policy and convert to an individual plan before the claimant is entitled to have the cost of continuing the employer's plan included in AWW. To the extent employer contends that Midboe should be interpreted to encompass this issue, or should be read to suggest a requirement that the employee actually purchase insurance coverage, we decline to do so and, instead, follow the division's specific holding in Humane Society, supra, 26 P.3d at 549, that "the statute does not require proof that the claimant has actually purchased coverage."
Thus, we conclude that the ALJ and the Panel improperly interpreted § 8-40-201(19)(b) to require that the AWW be increased only when the claimant has actually continued, converted, or replaced his or her health insurance.
Accordingly, the amount of claimant's cost of continuing employer's group health insurance plan, see § 10-16-108(1)(e)(II)(B), C.R.S. 2004, must be included to determine claimant's AWW. Likewise, at the expiration of the allowed term of continuing coverage, the amount of claimant's cost of conversion to a similar or lesser plan must be included.
The order of the Panel is set aside, and the case is remanded for further proceedings consistent with this opinion.
JUDGE MARQUEZ concurs.
JUDGE GRAHAM dissents.
JUDGE GRAHAM dissenting.
I respectfully dissent because I believe that § 8-40-201(19)(b), C.R.S. 2004, requires that a claimant's average weekly wage (AWW) be increased only where the claimant has "continued" the employer's coverage at his own cost. That statute states that " he 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" (emphasis added). This language contemplates that the employee must continue the coverage, which necessarily assumes that the employee must actually purchase the coverage.
I reach this conclusion, in part, because of Midboe v. Industrial Claim Appeals Offi
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