Snyder Oil Co. v. Embree

839 P.2d 494, 16 Brief Times Rptr. 828, 1992 Colo. App. LEXIS 220, 1992 WL 110008
CourtColorado Court of Appeals
DecidedMay 21, 1992
DocketNo. 91CA0158
StatusPublished
Cited by3 cases

This text of 839 P.2d 494 (Snyder Oil Co. v. Embree) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Snyder Oil Co. v. Embree, 839 P.2d 494, 16 Brief Times Rptr. 828, 1992 Colo. App. LEXIS 220, 1992 WL 110008 (Colo. Ct. App. 1992).

Opinions

Opinion by

Judge JONES.

Snyder Oil Company (employer) seeks review of a final order of the Industrial Claim Appeals Panel determining permanent disability of Frank Embree (claimant) as a working unit rather than limiting such disability to a medical impairment rating. We affirm.

Claimant worked for employer while he also concurrently maintained a small dairy farm. He suffered an admitted work-related injury while working for employer which rendered him unable to perform the duties on the dairy farm as he had for 22 years prior to his injury.

Claimant returned to his employment with employer at his pre-injury rate of pay and was provided the usual wage adjustments. However, while the evidence reflected that claimant earned income estimated to be $2,000 per year from the dairy farm and, although his wife continued to work the farm after claimant’s injury, his testimony disclosed that his income for the current year, including that from the dairy operation, would be reduced, in part, because of his inability to perform the farm work.

Relying on St. Mary’s Church & Mission v. Industrial Commission, 735 P.2d 902 (Colo.App.1986), the Administrative Law Judge (AU) found that claimant’s profits from his secondary farming operation were part of his “pre-injury rate of pay.” Based on this interpretation, the AU concluded that the employer had not shown that the claimant was continued at his pre-injury rate of pay with the usual wage adjustments. The AU determined, therefore, that Colo.Sess.Laws 1990, ch. 62, § 8-42-110(3) at 499 did not limit the claimant’s permanent partial disability benefits.

In affirming the AU’s order, the Panel observed that it was unclear whether the drafters of § 8-42-110(3) had contemplated the situation in which claimant received his “pre-injury rate of pay” from multiple sources. Nevertheless, referring to Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App.1988) and St. Mary’s Church & Mission v. Industrial Commission, supra, the Panel agreed that an employee’s rate of pay may include the remuneration from concurrent employers and adhered to the position that § 8-42-110(3) does not apply when claimant proves that an actual wage decrease has occurred, even in a concurrent employment.

The Panel concluded, therefore, that the AU had properly determined that § 8-42-110(3) did not apply unless claimant receives his total pre-injury rate of pay and usual wage adjustments from all sources. We agree.

At the times pertinent here, § 8-42-110(3) provided in pertinent part:

[496]*496In any case where an employer reemploys or continues the disabled employee at work in the employment of the employer at the employee’s pre-injury rate of pay and extends to the employee the usual wage adjustments, the employee’s permanent partial disability award shall be limited to permanent medical impairment or a payment under section 8-42-107, whichever is less. (Repealed effective July 1, 1991, Colo.Sess.Laws 1991 at 1312)

Employer notes that § 8-42-110(3) refers to any case in which “an employer” continues to employ or reemploys the injured worker. Therefore, it asserts that the statute was not intended to limit liability for permanent disability only when all employers of a claimant return him to employment. It argues that such a condition is one over which an individual employer has no control, particularly if, as here, the claimant is his own employer and can, to some extent, control his additional employment. Further, it contends that the interpretation adopted by the Panel frustrates the purpose of the statute to encourage reemployment of injured workers. We are not persuaded by these arguments.

In the construction of statutes, the singular includes the plural. Section 2-4-102, C.R.S. (1980 RepLVol. IB); Kelln v. Department of Revenue, 719 P.2d 358 (Colo.App.1986). Therefore, contrary to the employer’s arguments, the use of the term “employer” as opposed to the term “employers” is without significance.

Furthermore, we note that, in enacting § 8-42-110(3), the General Assembly provided an economic incentive to employers to continue the employment of certain disabled employees who are capable of continuing to make positive contributions in the work place. When applicable, the statute provides a fair formula for compensation to the injured worker which is, however, inevitably in an amount less than that which a permanent partially disabled employee not continued or reemployed would receive. See Fulton v. King Soopers, 811 P.2d 421 (Colo.App.1990), aff'd, 823 P.2d 709 (Colo.1992).

Thus, the statute benefits those employers that recognize the value of trusted and experienced employees who, with appropriate adjustments, can continue after an industrial injury to provide their labor and expertise in the work place. Conversely, in our view, the General Assembly did not intend such employees to be penalized if injuries occasioned by their labor for their principal employer result in reduced income from other employment sources.

This interpretation of the statute is not contrary to the concern expressed by the Supreme Court in Fulton, supra, that if the acts required to trigger the statutory limitation were outside the control of the employer, “[t]he incentive provided by the statute [to the employer] would be meaningless.” Fulton v. King Soopers, supra. Our construction of § 8-42-110(3) provides an incentive to all employers to continue their employees at their pre-injury rate of pay with the usual wage adjustments in order to trigger the statutory limitation.

In Fulton, supra, the court comments on the fact that “a union decision to advance an employee is not a usual wage adjustment.” Thus, the court determined, as a matter of law, that delayed union advancement is not in the nature of a wage or an adjustment to wages, such as recognized benefits and actual earnings received, and other accoutrements of employment, including loss of ability to do certain work functions. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App.1990).

Here, as in St. Mary’s Church & Mission, supra, specific earnings from concurrent employment determine whether claimant would receive or the extent to which claimant would receive a workers’ compensation benefit. As the statute is applied to the primary employer here, the employer is still capable of controlling its own compliance with the statutory requirements that trigger the limitation on disability compensation, unlike the employer in Fulton, visa-vis decisions made independently by a labor organization.

Application of the statutory limitation in this instance would confer a benefit upon [497]*497the employer but would result in a detriment to the employee. And, unlike the situation in Fulton

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Hartman v. Clarke County Homemakers
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Snyder Oil Co. v. Embree
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839 P.2d 494, 16 Brief Times Rptr. 828, 1992 Colo. App. LEXIS 220, 1992 WL 110008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snyder-oil-co-v-embree-coloctapp-1992.