Benchmark/Elite, Inc. v. Simpson; City of Colorado Springs v. Bennett
Nos. 09SC586 & 09SC769.
Tried by Mr. Thomas Kanan, Lee and Kinder, LLC recently litigated an appeal in the Colorado Supreme Court concerning whether an average weekly wage can be recalculated beyond the statutory limit on maximum benefits, and won a determination that the maximum cap remains applicable for all cases after their original “date of injury.” This issue had arisen in a case decided by the Supreme Court itself in late 2008, in which the Court held that a claim can have multiple dates of injury or “disablements” that entitle claimants to recalculations of their average weekly wages. So, claimants began asking for new higher payment of benefits after any “worsening” of their conditions, based upon higher maximum rate entitlements linked to the subsequent dates of injury. It is very rare for this Court to reverse itself as quickly as we were able to achieve here. The Court’s own summary of the case is presented below. The special concurrence of Justice Coates is worth reading for a sense of what has been in dispute in the Supreme Court concerning average weekly wage determinations. With the announced retirement of Chief Justice Mullarkey, who authored the 2008 case that was partially reversed, the new justice appointed to the Court by Governor Ritter will have the power to decide this issue in the future because the original decision was by one vote alone (4/3) .
Workers’ Compensation—Maximum Rate of Benefits.
The Supreme Court consolidated two court of appeals opinions that address statutory limits on workers’ compensation benefits. The Court concluded that a workers’ compensation claimant is entitled to the maximum rate of benefits in effect at the time of injury. In a 2008 case, Avalanche Industries, Inc. v. Clark, 198 P.3d 589, 597‐98 (Colo. 2008) (section III.C.), the Court held that “time of injury” could mean either the time of accident or the time of disablement.
In each of the cases here, the court of appeals relied on section III.C. of Avalanche Industries to hold that the claimant was entitled to have his benefits calculated based on the maximum rate in effect at the claimant’s time of disablement. The Court held that section III.C. of Avalanche Industries was unnecessary to decide that case, and overruled the holding that the claimant’s “time of injury” could mean either time of accident or time of disablement. Because the court of appeals’ opinions relied on section III.C. of Avalanche Industries in these cases, the Court reversed those decisions.