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A PUBLICATION BY THE LAW FIRM OF Clifton, Mueller & Bovarnick, P.C. |
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OCTOBER |
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2005 |
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A PUBLICATION BY THE LAW FIRM OF Clifton, Mueller & Bovarnick, P.C. ATTORNEYS AT LAW |
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Practice Pointer |
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Average Weekly Wage: Health Insurance Premiums - In or Out? By Cheryl A. Martin
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decision was consistent with a prior opinion, Humane Society v. Industrial Claim Appeals Office, 26 P. 3d 546 (Colo. App. 2001) which expressly rejected the carrier’s argument that claimant must actually obtain dental coverage before she was entitled to an increase in her AWW. The Court of Appeals also distinguished this case from Midboe v. Industrial Claim Appeals Office, 88 P. 3d 643, 645 (Colo. App. 2003). In Midboe, the Claimant was still employed and the employer was still paying a portion of the insurance premium. In that case, the Court did not include the cost of continuing coverage in claimant’s AWW. The Court in Ray distinguished Midboe on the grounds that the employee in Ray had been terminated. The Court in Ray refused to interpret Midboe to suggest that |
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The Court of Appeals held in Ray v. Industrial Claim Appeals Office (Colo. App. July 14, 2005) that the cost to continue claimant’s group health insurance coverage of $602.75 should be included in his average weekly wage although the claimant did not actually make the payment to purchase coverage. The Court held that the term “wages” includes 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 similar or lesser insurance plan. The Court of Appeals held that the statute does not require proof that the claimant actually purchased the coverage. (The good news is a Petition for Cert. to the Supreme Court is pending) The Court of Appeals noted that its |
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an employee actually had to purchase insurance coverage to include the cost of the premium in the average weekly wage.
What this means to you: Although the law is somewhat in flux on the issue of whether the cost of insurance should be included in the Claimant’s AWW, it will likely be excluded while the claimant is still employed and the employer is continuing to pay the premium. Once Claimant is terminated the amount of claimant’s cost of continuing employer’s group health insurance plan must be included to determine claimant’s AWW. At the expiration of the allowed term of continuing coverage, the amount of the claimant’s cost of conversion to a similar or lesser plan must be included. |
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Pepper v. Industrial Claim, 04CA0457 (Ct. App., Sept. 22, 2005)
Claimant, a volunteer police officer for the city of Florence (city), was involved in a shooting incident and suffered an alleged mental impairment. Pursuant to C.R.S. 8-40-202(1)(a)(I)(A), the city had the option to exclude Claimant from the definition of “employee” regard-ing eligibility for workers’ compensation benefits. The city exercised the option and chose not to include volunteer police as |
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employees under its workers’ compensation policy. Therefore, the administrative law judge determined Claimant was not an employee and not entitled to benefits. The Industrial Claim Appeals Office affirmed. The Court of Appeals (CA) found the statute violates equal protection guarantees because volunteer police are similarly situated to all other types of vol-unteers under the statute, but cities, towns, and municipalities have the option to exclude them from coverage if they chose. |
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The CA found the city did not articulate conceivable facts linking the complete denial of benefits for volunteer police to any legitimate governmental purpose. The CA held the statute was unconstitutional in finding the disparate statutory treatment of volunteer police is not reasonable. What this means to you: Cities, towns, and municipalities that staff volunteer police officers no longer have the option to deny benefits when a volunteer police officer suffers a compensable injury. |
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Law Excluding Volunteer Police Officers from Workers’ Compensation Coverage Found Unconstitutional |
