Baum v. Industrial Claim Appeals Office

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
June 20, 2019

2019COA94

No. 18CA1990, Baum v. Industrial Claim Appeals Office —
Labor and Industry — Workers’ Compensation — Benefits —
Wage Continuation Plans

In this workers compensation case, a division of the court of

appeals interprets the phrase “other similar benefits” used in

connection with “earned vacation leave” and “sick leave” in section

8-42-124(2)(a), C.R.S. 2018, of the of the Workers’ Compensation

Act (Act). The division concludes that earned benefits that an

employee can exercise only in the event that he or she suffers a

work-related injury and that cannot otherwise be converted to any

other use or cashed out at separation do not fall within the scope of

“other similar benefits” as used in section 8-42-124(2)(a).
Based on this interpretation of the statute and the rejection of

the claimant’s constitutional challenges to the Act, the division

affirms the order of the Industrial Claim Appeals Office.
COLORADO COURT OF APPEALS 2019COA94

Court of Appeals No. 18CA1990
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-961-870

Jason Baum,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and United Airlines,

Respondents.

ORDER AFFIRMED

Division VI
Opinion by JUDGE WELLING
Freyre and Márquez*, JJ., concur

Announced June 20, 2019

Turner, Roepke & Mueller, LLC, Robert W. Turner, Greenwood Village,
Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Ritsema & Lyon, P.C., Alana S. McKenna, M. Holly Colvin Herring, Denver,
Colorado, for Respondent United Airlines

*Sitting by assignment of the Chief Judge under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Claimant, Jason Baum, appeals the final order of the

Industrial Claims Appeal Office affirming the summary judgment of

the director of the Division of Workers’ Compensation in favor of

self-insured employer, United Airlines (UAL).

¶2 This workers’ compensation action calls on us to clarify the

boundary between where an employer can and cannot take credit

for having an approved wage continuation plan under section 8-42-

124, C.R.S. 2018. Here, UAL paid Baum full pay under its wage

continuation plan after he sustained an admitted work-related

injury, but UAL also claimed a credit on its final admission of

liability (FAL) for the comparable temporary total disability (TTD)

benefits it would have otherwise been statutorily required to pay

Baum. This credit increased Baum’s reported TTD benefits,

pushing them over the statutory cap set by section 8-42-107.5,

C.R.S. 2018. Baum challenged UAL’s right to take the credit. But

both the director of the Division of Workers’ Compensation

(Division) and the Industrial Claim Appeals Office (Panel) held that

UAL acted within its rights in taking the credit. Because we, too,

conclude that UAL was entitled to take the credit, we affirm.

1
I. Background Facts

¶3 Baum sustained admitted, work-related injuries on September

7, 2014. His injuries caused him to be temporarily totally disabled

and off work until July 2016. He was placed at maximum medical

improvement (MMI) with a permanent impairment rating of 2% of

the whole person on September 25, 2016.

¶4 For the first nine months after his injury — until June 17,

2015 — UAL paid Baum his full salary under its wage continuation

plan. After Baum’s earned benefits under the wage continuation

plan ran out in June 2015, UAL paid him TTD benefits pursuant to

section 8-42-105, C.R.S. 2018, until July 29, 2016. Unlike the

benefits Baum received under UAL’s wage continuation plan, the

TTD benefits he received from June 2015 to July 2016 were paid at

the lower statutorily mandated rate of two-thirds of Baum’s average

weekly wage. See § 8-42-105.

¶5 In the FAL it filed after Baum reached MMI, UAL calculated

that it had overpaid Baum TTD benefits by $1459.83. 1 It also took

1The Director correctly determined that UAL miscalculated the
overpayment by $1.16. The correct overpayment amount is
$1458.67.

2
the position that Baum was not entitled to any compensation for his

2% whole person permanent impairment because the calculated

TTD payments exceeded the statutory cap set by section 8-42-107.5

for combined TTD and permanent partial disability (PPD) benefits.

UAL calculated this sum by adding the amount it had paid Baum in

TTD benefits from June 2015 to July 2016 ($48,944.85) and the

amount it would have paid Baum in TTD benefits from September

2014 to June 2015 ($33,949.49) had it not been paying him his full

salary during those nine months under its wage continuation plan.

In other words, UAL took credit on the FAL for TTD payments it

would have made but for its wage continuation plan. The

calculated TTD benefits totaled $82,894.34, which exceeds the

applicable statutory cap of $81,435.67 by $1458.67.

¶6 Baum objected to UAL’s claim of an overpayment, imposition

of the statutory cap, and claimed credit for TTD benefits he did not

receive. He filed an application for hearing, seeking TTD from the

date of his injury until June 17, 2015, the day he exhausted his

wage continuation benefits, as well as full payment of the PPD

benefits he would otherwise receive for his 2% whole person

impairment.

3
¶7 UAL filed a motion for summary judgment, arguing that its

wage continuation plan was valid and had been approved by the

director and in constant operation since 1973. It also argued that

because Baum received his full pay under the plan and the plan

“did not impair . . . [his] earned sick or vacation benefits,” it was

expressly entitled to claim a TTD credit by section 8-42-124(2)(a).

¶8 The director of the Division agreed. He rejected Baum’s

contention that benefits paid under the wage continuation plan

were similar to vacation or sick leave. Instead, the director

concluded that because benefits under the wage continuation plan

could not be accessed at an employee’s discretion or for a purpose

other than compensation for a work-related injury — a UAL

employee can tap benefits earned under the wage continuation plan

“only when they have suffered an injury ‘covered by the applicable

state workers’ compensation law’” — the benefits were not similar to

vacation or sick leave. Therefore, their accrual and exercise did not

bar UAL from taking the claimed TTD credit. The director further

concluded that because UAL properly claimed the credit, Baum’s

benefits exceeded the statutory cap and he was not entitled to

4
receive any PPD benefits or TTD benefits for the period September

8, 2014, to June 17, 2015.

¶9 The Panel affirmed on review. It, too, rejected Baum’s

argument that wage continuation benefits accrued under UAL’s

plan are “similar” to vacation or sick leave. Because it concluded

that wage continuation benefits are different from vacation and sick

leave, UAL properly took the credit for TTD benefits and Baum was

not entitled to any additional benefits.

II. Wage Continuation Plans

¶ 10 To give context to how we address Baum’s contentions, a brief

explanation of wage continuation plans authorized by section 8-42-

124 of the Workers’ Compensation Act (Act) is helpful. Although

most injured workers receive TTD benefits under the Act, it

authorizes — and to some extent, incentivizes — employers to adopt

a plan that pays injured workers more benefits than they would

have received in TTD benefits. In this regard, the Act states as

follows:

Any employer . . . who, by separate agreement,
working agreement, contract of hire, or any
other procedure, continues to pay a sum in
excess of the [TTD] benefits prescribed by
articles 40 to 47 of this title to any employee

5
temporarily disabled as a result of any injury
arising out of and in the course of such
employee’s employment and has not charged
the employee with any earned vacation leave,
sick leave, or other similar benefits shall be
reimbursed if insured by an insurance carrier
or shall take credit if self-insured to the extent
of all moneys that such employee may be
eligible to receive as compensation or benefits
for temporary partial or temporary total
disability under the provisions of said articles,
subject to the approval of the director.

§ 8-42-124(2)(a) (emphasis added). As pertinent here, the provision

expressly permits an employer to establish a plan that pays an

injured worker unable to work because of a temporarily disabling

work injury more than the worker would have received in TTD

benefits under section 8-42-105.

¶ 11 The Act incentivizes employers to create such plans by

permitting the participating self-insured employers to “take credit”

on their admission forms for the equivalent amount the employer

would have paid in TTD or temporary partial disability benefits if

not for the employer’s wage continuation plan. § 8-42-124(2)(a).

Insured participating employers are entitled to a reimbursement

from the insurer of the equivalent TTD amount. Id. However, if the

employer “charge[s]” the injured worker “with any earned vacation

6
leave, sick leave, or other similar benefits” during the time of

disability — in other words, if the employer makes the worker use

vacation time or sick time while unable to work because of the

work-related injury — then the employer cannot take advantage of

the credit on its admission form or seek reimbursement from the

insurer. See id.

¶ 12 With this framework in mind, we turn first to Baum’s

constitutional challenges to section 8-42-124, followed by the

statutory interpretation issue previewed at the start of this opinion.

III. Constitutional Challenges

¶ 13 Baum first argues that section 8-42-124 is unconstitutional

“on its face and as applied” because the plan was approved by the

director without the opportunity for injured workers to challenge

the plan in court. He contends that the lack of “appellate review”

denied him his property interest in workers’ compensation benefits

without due process. He further contends that the absence of

appellate review of approved wage continuation plans renders the

statute unconstitutional on its face and violates the separation of

powers in Article 3 of the Colorado Constitution. We are not

persuaded by these arguments.

7
A. Law Governing Due Process Analysis and Standard of Review

¶ 14 “The fundamental requisites of due process are notice and the

opportunity to be heard by an impartial tribunal.” Wecker v. TBL

Excavating, Inc., 908 P.2d 1186, 1188 (Colo. App. 1995). “The

essence of procedural due process is fundamental fairness.”

Avalanche Indus., Inc. v. Indus. Claim Appeals Office, 166 P.3d 147,

150 (Colo. App. 2007), aff’d sub nom. Avalanche Indus., Inc. v.

Clark, 198 P.3d 589 (Colo. 2008); see also Kuhndog, Inc. v. Indus.

Claim Appeals Office, 207 P.3d 949, 950 (Colo. App. 2009) (Due

process “requires fundamental fairness in procedure.”).

¶ 15 A claimant asserting that a statute is unconstitutional must

demonstrate that the statute “is unconstitutional beyond a

reasonable doubt.” Peregoy v. Indus. Claim Appeals Office, 87 P.3d

261, 265 (Colo. App. 2004). And, when analyzing the statute’s

constitutionality, we must begin with the presumption “that the

statute is valid.” Calvert v. Indus. Claim Appeals Office, 155 P.3d

474, 477 (Colo. App. 2006).

¶ 16 “This court has initial jurisdiction to address constitutional

challenges to the [Act].” Zerba v. Dillon Cos., 2012 COA 78, ¶ 8.

8
B. Baum Cannot Establish That He Was Deprived of a Protected
Interest Without Due Process

¶ 17 To prove a due process claim, a claimant must first meet the

threshold burden of establishing a deprivation of a protected

interest:

“The first inquiry in every due process
challenge is whether the plaintiff has been
deprived of a protected interest in ‘property’ or
‘liberty.’” It is necessary to consider whether a
property right has been identified, whether
government action with respect to that
property right amounted to a deprivation, and
whether the deprivation, if one is found,
occurred without due process of law.

Whatley v. Summit Cty. Bd. of Cty. Comm’rs, 77 P.3d 793, 798 (Colo.

App. 2003) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,

59 (1999)).

¶ 18 Baum cannot meet this burden. He asserts that he was

deprived of a property interest without due process when the

director approved UAL’s wage continuation plan. We agree with

Baum that “once an admission of liability was entered” he had a

vested property right under the Act, albeit not a fundamental right.

See Dillard v. Indus. Claim Appeals Office, 134 P.3d 407, 413 (Colo.

2006) (“Access to Workers’ Compensation benefits is not a

9
fundamental right.”); Whiteside v. Smith, 67 P.3d 1240, 1247 (Colo.

2003) (“The substantive right to workers’ compensation is a

constitutionally protected property interest.”).

¶ 19 Baum contends, though, that he was deprived of his right to

benefits without due process when the director “establish[ed] and

approve[d] [UAL’s] wage continuation plan without appellate

review.” The fatal flaw in Baum’s argument, however, is that it fails

to account for the fact that UAL’s plan was adopted and approved

long before he sustained any injury. The record reflects that the

director approved the plan in 2006 and renewed it in 2017. The

2017 approval letter the director sent to UAL stated, “Our records

indicate that your plan was originally effective September 14, 1973

and was updated July 21, 2006.” Importantly, when UAL’s plan

was approved in 1973 or even in 2006, Baum did not have a

property right. This is so because he was not injured, and UAL did

not admit liability, until September 2014. And the record indicates

that the 2006 approval was simply continued in 2017 because any

changes to the plan were minimal. Consequently, Baum cannot

meet the threshold test of being deprived of a property interest

10
without due process when the plan was approved because he had

no such interest at that time. See Whatley, 77 P.3d at 798.

¶ 20 Baum attempts to sidestep this issue by highlighting

distinctions between the plan approved in 2006 and that approved

in 2017, implying that additional measures, up to and including a

hearing, should have occurred in 2017. The wage continuation

plan in place in 2014 was part of the negotiated 2013-2016 Fleet

Services Agreement reached between UAL and the International

Association of Machinists and Aerospace Workers (IAMAW).

Representatives of both UAL and the IAMAW signed the agreement,

which went into effect November 1, 2013. However, according to

the affidavit of the assistant general chairman of the IAMAW, the

only substantial difference between the agreement in effect in 2006

and the 2013-2016 Fleet Services Agreement is that the applicable

benefits under the latter are deducted at the rate of forty hours per

week, rather than at the rate of thirteen and one-third hours per

week as they were in 2006. According to the assistant general

chairman, the change was made because previously benefits under

the wage continuation plan — called occupational injury leave or

11
OIL2 — supplemented TTD benefits to make an injured worker’s

salary whole. Under the 2013 agreement, “the occupational bank is

used in place of payment of any TTD benefits.”

¶ 21 Baum contends that this change — which inarguably depletes

his bank of OIL benefits at a faster rate than before — deprived him

of his protected property interest because neither he nor any other

worker was given an opportunity to challenge the plan and its

approval in court. But, as UAL points out, the change was not

imposed by UAL alone. Rather, it was a negotiated agreement

approved by representatives of the IAMAW. Thus, through his

union representatives, Baum had a seat at the table at which the

agreement modifying the plan was negotiated.

¶ 22 As pertinent to Baum’s due process challenge, though, the

plan’s adoption did not necessitate appellate or judicial review

because it did not create any protected property rights; instead, the

wage continuation plan simply establishes a means for UAL to

administer benefits to its injured employees — and to do so at a

2OIL is not a term of art under the Act. Instead, it is simply the
nomenclature used by UAL to describe the benefits it provides its
employees under its wage continuation plan.

12
rate greater than TTD benefits required to be paid under the Act.

Conversely, adoption of the 2013-2016 Fleet Services Agreement

could not deprive Baum of any property right because his property

right in the benefit did not arise until his work-related injury —

which occurred after UAL and the IAMAW adopted the agreement.

¶ 23 Accordingly, we reject Baum’s contention that he was deprived

of a property right without due process. See id.

C. Baum Cannot Establish a Violation of the Separation of Powers
Doctrine

¶ 24 Baum’s separation of powers challenge also fails. He argues

that the legislature violated the separation of powers doctrine when

it approved section 8-42-124 without including a process for

judicial review of wage continuation plans. We disagree.

¶ 25 As Baum acknowledges, “the Act has been previously

subjected to separation of powers scrutiny by the courts.” No court

has ever determined that the Act violates the doctrine. To the

contrary, each time the Act has been challenged for allegedly

violating the separation of powers doctrine, no constitutional

violation was found. In each case, a division of this court

concluded that appellate review of workers’ compensation claims

13
ensures that any errors committed by administrative law judges

(ALJ) or the Panel can be corrected by a court. See Sanchez v.

Indus. Claim Appeals Office, 2017 COA 71, ¶¶ 11-12; Dee Enters. v.

Indus. Claim Appeals Office, 89 P.3d 430, 433 (Colo. App. 2003);

MGM Supply Co. v. Indus. Claim Appeals Office, 62 P.3d 1001, 1004

(Colo. App. 2002).

¶ 26 Even so, Baum contends that no court has considered

whether the lack of judicial review for approval of wage continuation

plans under section 8-42-124 violates the separation of powers.

“Article III of the Colorado Constitution prohibits one branch of

government from exercising powers that the constitution vests in

another branch.” Dee Enters., 89 P.3d at 433. “The separation of

powers doctrine does not require a complete division of authority

among the three branches, however, and the powers exercised by

different branches of government necessarily overlap.” Id.

¶ 27 The separation of powers doctrine does not, as Baum

contends, guarantee that the judicial branch will be granted

oversight over every action taken by any governmental entity in the

state. Rather, it prohibits one governmental branch from usurping

or exercising powers vested in another branch. Id.

14
¶ 28 In adopting section 8-24-124, the legislature did not grant

itself the power to approve wage continuation plans. Instead, it

vested that authority in another branch — the executive branch —

by making wage continuation plans subject to the director’s

approval. § 8-42-124(2)(a). The plan at issue here, with minor

changes, has been continuously approved by the director since

1973.

¶ 29 And, contrary to Baum’s premise, the judicial branch has not

been excluded from reviewing these plans or section 8-42-124. We

are, in fact, reviewing aspects of UAL’s plan in this very case, and

aspects of other wage continuation plans have been reviewed

extensively by previous divisions of this court. See City & Cty. of

Denver v. Indus. Claim Appeals Office, 107 P.3d 1019, 1022 (Colo.

App. 2004) (permitting employers who provide wage continuation

plans to take credit for TTD payments by reinstating earned

vacation or sick benefits after determining that an injury is

compensable under the Act); Pub. Serv. Co. v. Johnson, 789 P.2d

487, 489 (Colo. App. 1990) (rejecting the employer’s contention that

prohibiting employers who charge injured workers with earned sick

or vacation leave while the worker is disabled from taking a TTD

15
credit results in double compensation). Such subsequent court

review of an agency action is appropriate because any review

conducted earlier in the process — before property rights arise —

would violate the prohibition against courts considering a matter

absent an actual case or controversy. See Colo. Gen. Assembly v.

Lamm, 700 P.2d 508, 515-16 (Colo. 1985) (“Whether a particular

plaintiff has standing to invoke the jurisdiction of the courts is a

preliminary inquiry designed to ensure that the judicial power is

exercised only in the context of a case or controversy.”).

¶ 30 For these reasons, we conclude that the approval of section 8-

42-124 did not violate the separation of powers doctrine.

IV. Statutory Interpretation

¶ 31 Baum next contends that the Panel erroneously affirmed the

director’s grant of summary judgment to UAL. He argues that the

director misinterpreted section 8-42-124 when he concluded that

UAL’s wage continuation program benefits did not fall under the

statute’s residual provision of “other similar benefits.” See § 8-42-

124(2)(a). As explained above, section 8-42-124(2)(a) entitles UAL to

take TTD credit for the period it paid Baum OIL under its wage

continuation plan, so long as it did not charge Baum for vacation

16
leave, sick leave, “or other similar benefits” during the period he

was unable to work.

¶ 32 Baum argues that the similarities between OIL benefits, on the

one hand, and sick and vacation leave, on the other hand, render

the OIL benefits sufficiently similar to land them under the canopy

of “other similar benefits.” He notes that like vacation and sick

leave, OIL benefits under UAL’s wage continuation plan are earned

and accrue at the rate of eight hours per month — coincidentally

the same rate that Baum accrues sick leave. Also, like sick leave,

OIL is used up at the rate of forty hours per week when an injured

worker is unable to work. Finally, Baum points out that if a worker

runs out of OIL, sick leave can be converted to OIL, and vacation

leave can be converted to sick leave. In other words, a worker short

on OIL can — but is not required to — dip into earned benefits from

the sick and vacation banks to extend OIL. Listing these

similarities, Baum asks, then, “are the benefits indeed not similar

in nature?” Like the director and the Panel, we conclude that these

similarities are insufficient to categorize OIL as “other similar

benefits.”

17
A. Law Governing Summary Judgment and Standard of Review

¶ 33 “[S]ummary judgment may be sought in a workers’

compensation proceeding before the ALJ.” Fera v. Indus. Claim

Appeals Office, 169 P.3d 231, 232 (Colo. App. 2007). Under Office

of Administrative Courts Rule of Procedure (OACRP) 17, 1 Code

Colo. Regs. 104-3, a party may move “for summary judgment

seeking resolution of any endorsed issue for hearing.” Like a

motion for summary judgment pursued under C.R.C.P. 56,

summary judgment may be granted in a workers’ compensation

case if “there is no disputed issue of material fact and . . . the party

is entitled to judgment as a matter of law.” OACRP 17; see also

Nova v. Indus. Claim Appeals Office, 754 P.2d 800, 802 (Colo. App.

1988) (noting that the Colorado Rules of Civil Procedure apply to

workers’ compensation proceedings unless inconsistent or in

conflict with the procedures and practices followed under the Act).

¶ 34 We review an ALJ’s legal conclusions on summary judgment

de novo. See A.C. Excavating v. Yacht Club II Homeowners Ass’n,

114 P.3d 862, 865 (Colo. 2005). However, we may only set aside an

ALJ’s factual findings if they are unsupported by substantial

evidence in the record. § 8-43-308, C.R.S. 2018.

18
We must therefore accept the ALJ’s statements
of undisputed facts . . . if substantial evidence
in the record supports that statement of facts,
but we must set aside the grant of summary
judgment in an employer’s favor if we
determine that conflicts in the evidence are not
resolved in the record or the order is not
supported by applicable law.

Fera, 169 P.3d at 233.

B. Rules of Statutory Construction and Standard of Review

¶ 35 When we analyze a provision of the Act, “we interpret the

statute according to its plain and ordinary meaning” if its language

is clear. Davison v. Indus. Claim Appeals Office, 84 P.3d 1023, 1029

(Colo. 2004). In addition, “when examining a statute’s language, we

give effect to every word and render none superfluous because we

‘do not presume that the legislature used language idly and with no

intent that meaning should be given to its language.’” Lombard v.

Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008)

(quoting Colo. Water Conservation Bd. v. Upper Gunnison River

Water Conservancy Dist., 109 P.3d 585, 597 (Colo. 2005)).

¶ 36 We review issues of statutory construction de novo. Ray v.

Indus. Claim Appeals Office, 124 P.3d 891, 893 (Colo. App. 2005),

aff’d, 145 P.3d 661 (Colo. 2006). Although we defer to the Panel’s

19
reasonable interpretations of the statute it administers, Sanco

Indus. v. Stefanski, 147 P.3d 5, 8 (Colo. 2006), we are “not bound

by the Panel’s interpretation” or its earlier decisions, United Airlines

v. Indus. Claim Appeals Office, 2013 COA 48, ¶ 7; Olivas-Soto v.

Indus. Claim Appeals Office, 143 P.3d 1178, 1180 (Colo. App. 2006).

“The Panel’s interpretation will, however, be set aside ‘if it is

inconsistent with the clear language of the statute or with the

legislative intent.’” Town of Castle Rock v. Indus. Claim Appeals

Office, 2013 COA 109, ¶ 11 (quoting Support, Inc. v. Indus. Claim

Appeals Office, 968 P.2d 174, 175 (Colo. App. 1998)), aff’d, 2016

CO 26.

C. OIL Benefits Do Not Constitute “Other Similar Benefits” Under
Section 8-42-124(2)(a)

¶ 37 Baum maintains that the similarities he describes make OIL

benefits analogous to sick and vacation leave under UAL’s Fleet

Service Agreement. But, the director and the Panel reached a

different conclusion. Although we interpret statutes de novo, we

give considerable weight to the Panel’s interpretation of the Act and

stray from it only if the Panel’s construction is inconsistent with the

20
clear language of the statute or the legislative intent. See Town of

Castle Rock, ¶ 11.

¶ 38 We conclude that the Panel’s and the director’s interpretation

is consistent with the legislature’s objectives and intent. In our

view, a critical difference removes OIL from under the umbrella of

“other similar benefits” under section 8-42-124. That significant

difference, which both the director and the Panel found compelling,

is that that OIL benefits can only be accessed by an injured worker

once UAL has admitted a work-related injury is compensable or an

ALJ has found a claim to be compensable. The Fleet Services

Agreement states that it applies only to injuries or illnesses “covered

by the applicable state Workers’ Compensation law, and must be

verified in writing by the employee’s treating physician.” Unlike

vacation and sick leave, then, use of OIL is not discretionary or

flexible. Simply put, it can be accessed under one circumstance

only: when a worker has suffered a compensable work-related

injury.

¶ 39 Another difference between OIL and vacation or sick leave

under UAL’s Fleet Service Agreement is that a UAL worker who

separates from employment is paid a lump sum for unused vacation

21
leave. OIL, in contrast, is simply lost: “If an employee’s employment

ceases for any reason, all of his or her credit for [OIL] will be

cancelled, and no payment for such accumulated credit will be

made at any time.”

¶ 40 Notably, too, as a division of this court observed in Public

Service Co., the very nature of OIL benefits sets them apart from

“vacation leave, sick leave, or other similar benefits.” Pub. Serv. Co.,

789 P.2d at 488. “Indeed, it is generally recognized that vacation

and sick pay are benefits earned by virtue of past services rendered

and that, as such, these ‘earned’ benefits should not be impaired by

the employee’s work-related injury.” Id. at 489. In contrast, OIL

benefits — while, in this case, earned — are expressly intended to

be used when — and only when — a worker suffers a work-related

injury; their use does not “impair” the use of other earned benefits

that can be exercised under other circumstances or cashed out at

separation. Put differently, by using his OIL when he suffered a

work-related injury, Baum did not impair or make his OIL benefit

unavailable for another use.

¶ 41 Nor did Baum have to sacrifice any of his earned vacation or

sick leave during his time of disability because OIL is drawn from a

22
separate pool of benefits. It is drawn from a separate bank and its

use insulates workers from depleting their sick or vacation leave

because of a compensable work-related injury.

¶ 42 Baum suggests that because UAL’s wage continuation plan

permits injured workers to convert sick leave into OIL, the benefits

are “similar” under the statute. 3 However, UAL never requires a

worker to use sick leave in this way. Although a worker who

exhausts his or her earned OIL “may elect to convert any remaining

sick bank hours into occupational injury hours,” no injured worker

is required to do so. An injured worker may instead choose to keep

all his or her earned vacation and sick leave for future use or

payout. Conversion is therefore entirely within the injured worker’s

discretion and its use does not forcibly “impair” the worker’s earned

benefits. See id.

3 Baum’s conversion argument would pack some persuasive punch
if he were able to convert OIL into vacation or sick leave. But the
conversion option is a one-way street: from vacation to sick leave
and from sick leave to OIL — not the other direction. Thus, OIL
does not enjoy the conversion flexibility accorded by UAL to its
vacation and sick leave.

23
¶ 43 These differences are significant enough to exclude OIL

benefits from the umbrella of “other similar benefits” under section

8-42-124(2)(a).

¶ 44 We note, too, that accepting Baum’s characterization of UAL’s

OIL benefit would swallow wage continuation plans, rendering

section 8-42-124(2)(a) practically meaningless. If plans like UAL’s

OIL benefit are barred from enjoying a TTD credit, then we have

trouble envisioning what plan would fall within the statute’s

purview. Section 8-42-124’s TTD credit was intended to motivate

and encourage employers to fully compensate injured workers over

and above the two-thirds average weekly wage guaranteed by the

Act. See § 8-42-105. Any incentive an employer has for creating

wage continuation plans — which unquestionably benefit workers

by paying them more than TTD or even, as here, their full salary

while disabled — would vanish if the mere fact that wage

continuation plan benefits are accrued and earned makes them too

similar to vacation and sick leave to qualify for the TTD credit.

Baum’s proposed interpretation would, thus, violate the prohibition

against rendering a statutory provision meaningless. See Chavez v.

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People, 2015 CO 62, ¶ 21 (“We strive to avoid interpretations that

would render statutory language meaningless.”).

¶ 45 For these reasons, we agree with the Panel and the director

and reject Baum’s contention that OIL benefits paid him under

UAL’s wage continuation plan constituted “other similar benefits”

under section 8-42-124(2)(a). See Town of Castle Rock, ¶ 11.

D. UAL Did Not Garner a Windfall

¶ 46 Last, we address Baum’s contention that UAL enjoys a

windfall unless it is barred from taking a credit for TTD benefits

under this circumstance. It is undisputed that taking credit for

TTD benefits during the time Baum was paid OIL benefits triggered

the statutory cap and eliminated any PPD benefits Baum may have

otherwise received. § 8-42-107.5. But that does not constitute a

windfall in UAL’s favor. Baum received his full pay while being paid

OIL. The legislature sought to encourage employers to implement

wage continuation plans so that workers could receive a full salary

even while disabled by a work-related injury. We do not perceive

that by taking the statutorily authorized credit, UAL enjoyed a

windfall. Indeed, during a portion of Baum’s absence from work

UAL paid him more than the minimum required by the Act.

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¶ 47 To the extent Baum is also demanding payment of the TTD

benefits to him, these would be over and above the full salary he

received under OIL while on work-related disability leave. In other

words, Baum would receive nearly $34,000 more than his salary,

plus a PPD benefit payout in excess of $9000. That could be

characterized as a windfall benefiting Baum.

¶ 48 In summary, we conclude that neither the director nor the

Panel misinterpreted section 8-42-124 when ruling that UAL was

entitled to take a credit for the $33,949.49 Baum would have

received in TTD payments during the time he was paid OIL benefits.

Id.

V. Conclusion

¶ 49 The order is affirmed.

JUDGE FREYRE and JUDGE MÁRQUEZ concur.

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