     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
                                                    Date February 13, 2020

                                2020COA24

No. 16CA1348, Peo v. Stone— Criminal Law — Sentencing —
Restitution — Colorado Crime Victim Compensation Act; Labor
and Industry — Workers’ Compensation — Benefits —
Permanent Partial Disability

     When a court is deciding whether to order a defendant to pay

restitution to a crime victim compensation board, which definition

of victim applies: section 18-1.3-602(4)(a), C.R.S. 2019, the one in

the general restitution statute; or section 24-4.1-102(10), C.R.S.

2019, the one in the crime victim compensation board statute? A

division of the court appeals decides that the latter statute controls.

     When a court is deciding whether to order a defendant to pay

restitution to a workers’ compensation insurer, are the insurer’s

payments for permanent partial disability compensation for lost

future earnings, which the restitution statute does not allow? A

division of the court of appeals answers this question “no.”
COLORADO COURT OF APPEALS                                         2020COA24


Court of Appeals No. 16CA1348
Douglas County District Court No. 14CR154
Honorable Paul A. King, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ryan Cole Stone,

Defendant-Appellant.


               ORDER AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                   Division I
                      Opinion by CHIEF JUDGE BERNARD
                       Taubman and Navarro, JJ., concur

                         Announced February 13, 2020


Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Ryan Cole Stone, appeals the trial court’s

 restitution order. We affirm in part, and we reverse in part.

                           I.   Background

¶2    Defendant stole a car, and he led the police on a high-speed

 chase around the metro Denver area. In the process, he

 commandeered several other cars. Colorado State Patrol troopers

 tried to stop defendant using “stop sticks” — sticks with spikes on

 them designed to puncture a car’s tires to disable it — on E-470,

 but he avoided the stop sticks by swerving around them onto the

 road’s shoulder. In doing so, he hit one of the troopers with the car,

 causing the trooper serious injuries.

¶3    A jury convicted defendant of attempted manslaughter, first

 degree assault, vehicular eluding, criminal mischief, six counts of

 leaving the scene of an accident, two counts of robbery, two counts

 of child abuse, and three counts of aggravated motor vehicle theft.

 We affirm these convictions in a separate appeal. People v. Stone,

 2020COA23.

¶4    Defendant objected to the prosecution’s written restitution

 request, and he asked for a hearing. Following the hearing, the trial

 court granted most of the prosecution’s request. The court asked


                                   1
 the prosecution to submit a proposed written restitution order for

 its approval that reflected the amounts that it had orally ordered.

 The prosecution submitted, and the trial court signed, a written

 restitution order in the amount of $252,027.69.

             II.   Standard of Review and Legal Principles

¶5    Section 18-1.3-603, C.R.S. 2019, requires convicted offenders

 to pay restitution to compensate crime victims for the harm that

 they have suffered. “The purpose of restitution is to make the

 victim whole, and the Restitution Act is to be ‘liberally construed’ to

 accomplish that purpose.” People v. McCann, 122 P.3d 1085, 1087

 (Colo. App. 2005)(quoting § 18-1.3-601(2), C.R.S. 2004). A trial

 court must order restitution whenever a defendant’s criminal

 conduct causes pecuniary damage to a victim. People v. Reyes, 166

 P.3d 301, 302 (Colo. App. 2007).

¶6    The prosecution has the burden of proving restitution by a

 preponderance of the evidence. People in Interest of D.W., 232 P.3d

 182, 183 (Colo. App. 2009). Specifically, it must establish “the

 amount of restitution owed and, generally, that the defendant’s

 conduct was the proximate cause of the victim’s loss.” People v.

 Henry, 2018 COA 48M, ¶ 15.


                                    2
¶7       Generally, we review a court’s restitution order for an abuse of

 discretion. Id. at ¶ 12. But, when the issue is whether there was

 sufficient evidence to justify the order, we apply de novo review,

 evaluating “whether the evidence, both direct and circumstantial,

 when viewed as a whole and in the light most favorable to the

 prosecution, establishes by a preponderance of the evidence that

 the defendant caused that amount of loss.” People v. Barbre, 2018

 COA 123, ¶ 25; see also People in Interest of A.V., 2018 COA 138M,

 ¶ 32.

¶8       This appeal also requires us to interpret statutes. Our review

 is de novo. People v. Jenkins, 2013 COA 76, ¶ 12.

¶9       When we interpret a statute, we must ascertain and give effect

 to the legislature’s intent. Colo. Dep’t of Revenue v. Creager

 Mercantile Co., 2017 CO 41M, ¶ 16. “We construe the entire

 statutory scheme to give consistent, harmonious, and sensible

 effect to all [of its] parts,” and “[w]e give effect to words and phrases

 according to their plain and ordinary meaning[s].” Denver Post

 Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011). If a statute’s

 language is clear, we apply it as written. Id.




                                      3
       III.   Restitution to the Crime Victim Compensation Board

¶ 10   Defendant contends that the trial court erroneously ordered

  restitution to the Crime Victim Compensation Board, which we

  shall call “the board.”

¶ 11   In Colorado, each judicial district has its own “crime victim

  compensation board.” § 24-4.1-103(1), C.R.S. 2019. To be eligible

  for compensation, a person must apply to the board. § 24-4.1-

  105(1).

¶ 12   The board made two payments that are pertinent to this

  appeal. First, the board paid a claim to the trooper’s brother for his

  travel expenses to come to Colorado. Second, the board paid a

  claim to the trooper’s girlfriend for her lost wages.

¶ 13   Defendant asserts that the trial court erred by awarding

  restitution to the board for the payments to the brother and to the

  girlfriend for two reasons: (1) they were not “victims” under the

  restitution statute; and, (2) even if they were, the prosecution did

  not prove that defendant’s conduct proximately caused their losses.

  We disagree with both contentions for the following reasons.




                                     4
                                A.    Victim

¶ 14   Defendant first contends that the trial court could not order

  restitution to the board because neither the brother nor the

  girlfriend met the definition of a victim in the restitution statute.

  We are not persuaded.

¶ 15   Under the restitution statute, a “victim” is “any person

  aggrieved by the conduct of an offender.” § 18-1.3-602(4)(a), C.R.S.

  2019. As is pertinent to this appeal, the restitution statute allows

  compensation to a “sibling” or a “significant other,” as that term is

  defined in section 24-4.1-302(4), C.R.S. 2019, of a victim, if the

  victim is “deceased or incapacitated.” § 18-1.3-602(4)(a)(V).

  Defendant asserts that, because the trooper was not “deceased or

  incapacitated,” the definitions of “sibling” and “significant other” are

  inapplicable to the brother and girlfriend.

¶ 16   But the restitution statute also provides that “victim” means

  “[a]ny victim compensation board that has paid a victim

  compensation claim.” § 18-1.3-602(4)(a)(IV). In this case, the board

  paid for the brother’s travel expenses and the girlfriend’s lost wages.

  So, under that statute, the board was the victim. See id.; see also




                                      5
  People v. Bohn, 2015 COA 178, ¶¶ 10-11, superseded by statute as

  stated in Henry, 2018 COA 48M.

¶ 17   There are three reasons why we are not persuaded that the

  person whom the board reimburses must also meet one of the

  definitions in section 18-1.3-602(4)(a) for the trial court to award

  restitution to the board.

¶ 18   First, the plain language of section 18-1.3-602(4)(a) does not

  go that far. It begins by stating that the word “‘[v]ictim’ means any

  person aggrieved by the conduct of an offender and includes but is

  not limited to the following . . . .” Id. (emphasis added).

¶ 19   Second, when looking at the statutes that govern crime victim

  compensation boards, we see that a victim includes “any person

  who is a relative of a primary victim.” § 24-4.1-102(10)(a)(III),

  C.R.S. 2019. A “primary victim” is “[a]ny person against whom a

  compensable crime is perpetrated or attempted.” § 24-4.1-

  102(10)(a)(I). A “[r]elative” includes a “brother” or “any person who

  has a family-type relationship with a victim.” § 24-4.1-102(9).

¶ 20   When reading these statutes together, our first obligation is to

  harmonize the definitions of “victim” in section 18-1.3-602(4)(a) and

  in section 24-4.1-102(9) and (10). § 2-4-205, C.R.S. 2019. We can


                                      6
  do so by concluding that (1) the specific definition of “victim” in

  section 24-4.1-102(9) applies to crime victim compensation board

  decisions and to trial court decisions awarding restitution to such

  boards; while (2) the definition of “victim” found in section 18-1.3-

  602(4)(a) applies to all other trial court decisions to award

  compensation.

¶ 21   But, third, even if we were to conclude that these two statutes

  conflict, we would reach the same result because “[a] primary rule

  of statutory construction is that a specific statute prevails over

  general legislation.” People v. Weller, 679 P.2d 1077, 1082 (Colo.

  1984); see also § 2-4-205, C.R.S. 2019. And the definition of

  “victim” in section 24-4.1-102(9) is more specific than the definition

  in section 18-1.3-602(4)(a) because it deals with only one part of the

  universe of restitution cases: awards made by crime victim

  compensation boards. So defendant’s assertion — the board could

  not compensate the brother or the girlfriend because they were not

  victims for the purposes of the general restitution statute under

  section 18-1.3-602(4)(a) — is rebuffed by the express language of

  the statute that governed the board’s decisions in this case.




                                     7
                           B.   Proximate Cause

¶ 22   The prosecution must prove, by a preponderance of the

  evidence, that the defendant proximately caused the victim’s loss.

  People v. Henson, 2013 COA 36, ¶ 11. This legal principle brings us

  to defendant’s second contention.

¶ 23   In 2015, the General Assembly amended the restitution

  statute to address cases in which a compensation board seeks

  reimbursement for assistance provided to a victim. See Henry,

  ¶ 16. “A crime victim may seek compensation from a compensation

  board [and,] [i]f the board pays such a claim, a court may order the

  defendant to reimburse the board for the amount of assistance that

  it paid to the victim.” Id. (citation omitted).

¶ 24   Under this statute, “the amount of assistance provided and

  requested by the crime victim compensation board is presumed to

  be a direct result of the defendant’s criminal conduct and must be

  considered by the court in determining the amount of restitution

  ordered.” § 18-1.3-603(10)(a). This statute creates a rebuttable

  presumption that the prosecution has satisfied its burden of

  proving “that the defendant’s conduct was the proximate cause of

  the victim’s loss.” Henry, ¶ 18. So, “[o]nce a compensation board


                                      8
  has established that it paid a victim a set amount, the defendant

  has the burden of introducing evidence to show that the amount

  paid was not the direct result of his criminal conduct.” Id. at ¶ 19.

¶ 25   Although the division decided Henry before the prosecution

  filed its answer brief and defendant filed his reply brief, neither

  party mentions it. We will nonetheless assume, without deciding,

  that the amended statute does not apply in the present case

  because defendant committed the underlying crimes before the

  legislature amended the statute. See Ch. 60, sec. 6, § 18-1.3-603,

  2015 Colo. Sess. Laws 147; see also People v. Stellabotte, 2018 CO

  66, ¶ 33 (noting that a statute that is silent on whether it applies

  prospectively or retroactively is presumed to apply prospectively

  unless an exception applies).

¶ 26   We therefore apply Bohn, ¶ 19, which provided that “where a

  [victim compensation board] has paid a victim compensation claim,

  the prosecution still must show by a preponderance of the evidence

  that . . . the underlying loss was proximately caused by the

  defendant.” For our purposes, “[p]roximate cause . . . is defined as

  a cause which in natural and probable sequence produced the

  claimed injury and without which the claimed injury would not


                                     9
  have been sustained.” People v. Rivera, 250 P.3d 1272, 1274 (Colo.

  App. 2010). When the underlying loss is attenuated from the crime,

  “the trial court must carefully consider whether proximate cause

  exists.” Id.

¶ 27   In other words, the prosecution in this case needed to show

  that defendant’s conduct “proximately caused” (1) the brother’s

  travel expenses; and (2) the girlfriend’s lost wages. We conclude, for

  the following reasons, that the prosecution provided sufficient

  evidence to prove that defendant caused the brother’s travel

  expenses and the girlfriend’s lost wages.

                  1.    The Brother’s Travel Expenses

¶ 28   The trooper said that his mother and his brother came to

  Colorado to visit him before his fifth surgery. He told the court that

  “they were there to support [him] and be there physically for [him].”

  He added that they would not have visited him but for his surgery.

  He said that his mother and his brother rented a car to transport

  him “to and from the medical facility and home.” The board’s

  director testified that the board reimbursed the mother and the

  brother for their travel expenses.




                                       10
¶ 29   Defense counsel declined to question either the trooper or the

  board’s director.

¶ 30   The trial court found that the mother and the brother came to

  Colorado to “help [the trooper] in [his] recovery.” But the court also

  noted that it had not heard any evidence “related to what the

  mother or the brother did for [the trooper] with respect to the

  surgery.” The trial court then raised a concern: “they were both

  here at the same time providing . . . the same type of service.”

¶ 31   So the court decided that it would only award the restitution

  request for the board’s payments to one of the two; it chose, at

  random, the brother. Relying on People v. Lassek, 122 P.3d 1029

  (Colo. 2005), the court decided that “there’s enough of a connection

  made . . . that the relative would not have had to come out here to

  provide assistance to [the trooper] but for the fact that [he had]

  suffered injury at the hands of the defendant.”

¶ 32   In Lassek, the division affirmed a trial court’s restitution

  award that included the victim’s parent’s travel to a “memorial

  service at which the victim was honored along with other[s] . . . who

  had died that year” because “[t]he parents’ attendance at a

  memorial service was a natural and probable consequence that


                                    11
  would not have occurred without defendant’s actions.” Id. at 1036.

  But defendant submits that the trial court misapplied Lassek

  because the victim’s parents in that case were clearly “victims”

  under the restitution statute. But the issue in Lassek was not

  whether the parents were victims under the statute. The issue was,

  instead, whether attending a memorial service could be properly

  attributed to the defendant’s conduct. At any rate, defendant’s

  submission is foreclosed by our conclusion in Part III.A that the

  brother and the girlfriend were victims for the purposes of section

  18-1.3-602(4)(a)(IV).

¶ 33   Defendant also asserts that, “because the court could not find

  that [the trooper] needed help and that his brother and mother

  provided it, [the court] had no basis to order restitution to either of

  them.” We disagree because defendant misconstrues the trial

  court’s findings. The court determined that the prosecution had

  proved that the underlying losses — mother’s and brother’s travel

  expenses — were proximately caused by defendant’s conduct. In

  other words, the mother’s and the brother’s travel expenses were “a

  natural and probable consequence that would not have occurred

  without defendant’s actions.” Lassek, 122 P.3d at 1036. The only


                                     12
  reason the court did not award restitution to them both is because

  it could not determine whether the trooper needed them both to be

  there.

¶ 34   We therefore conclude that the prosecution presented

  sufficient evidence to show by a preponderance of the evidence that

  defendant proximately caused the brother’s travel expenses. See

  City of Littleton v. Indus. Claim Appeals Office, 2016 CO 25, ¶ 38

  (noting that the preponderance-of-the-evidence standard does not

  require a particularly high degree of proof).

                    2.    The Girlfriend’s Lost Wages

¶ 35   The trooper described also described the girlfriend as his

  “partner,” and, according to documents in the record, she lived with

  him. He told the court that she worked full time as the director of a

  preschool, but that she had to take time off to help him recover

  from his injuries. He said that she would not have taken time off

  work but for his injuries. She took time off during the initial two

  weeks that he was in the hospital, and then again after he got out of

  the hospital, so that she could transport him to other medical

  facilities. The prosecution also submitted pay stubs showing the

  amount of time that the girlfriend missed work at the preschool.


                                    13
¶ 36   The trial court concluded that the prosecution had presented

  sufficient evidence to prove that the girlfriend had “provided a

  service to [the trooper] immediately after the injury occurred and

  that she then suffered a loss in wages as a result of that.”

¶ 37   Defendant contends that the prosecution did not establish

  that his conduct had proximately caused the girlfriend’s lost wages

  because the trooper’s testimony “did not differentiate between the

  time [the girlfriend] spent providing moral versus physical support.”

  Defendant believes this distinction is important because “moral

  support” does not “necessarily occur during working hours.”

¶ 38   We are not persuaded because defendant does not submit that

  the girlfriend’s lost wages were not proximately caused by his

  conduct. He simply asserts that some of the support that the

  girlfriend gave defendant may have occurred during nonworking

  hours. This assertion is irrelevant. The prosecution showed that

  the girlfriend took time off work to help the trooper, which “was a

  natural and probable consequence that would not have occurred

  without defendant’s actions.” Lassek, 122 P.3d at 1036. We

  therefore conclude, that the prosecution presented sufficient

  evidence to show by a preponderance of the evidence that defendant


                                    14
  proximately caused the girlfriend’s lost wages. See City of Littleton,

  ¶ 38.

       IV.   Restitution to the Workers’ Compensation Administrator

¶ 39      Defendant contends that the trial court erroneously ordered

  restitution for the trooper’s “permanent partial disability.” He adds

  that permanent partial disability benefits constitute a “loss of future

  earnings,” which are not compensable under the restitution statute.

  (We note that this challenge only concerns about $26,000 of the

  amount that the court ordered him to pay to the administrator;

  defendant does not contest the rest of it, which totals more than

  $200,000.)

                        A.    Additional Background

¶ 40      The state of Colorado insures itself for workers’ compensation

  claims, which means that the state has set aside funds to provide

  benefits for its workers who experience on-the-job injuries. It has

  contracted with a third-party administrator called Broadspire,

  which we shall call “the administrator,” to manage these claims. So

  state employees’ workers’ compensation benefits are paid by the

  administrator. When a state employee is injured, the administrator

  assigns a claims adjuster to investigate the injury and to determine


                                     15
  whether the claim is compensable under the workers’ compensation

  statute.

¶ 41   There are three types of benefits under the workers’

  compensation statute: medical, disability, and death. See generally

  §§ 8-42-101 to -125, C.R.S. 2019. The claims adjuster in this case

  determined that the trooper was entitled to both medical and

  disability benefits, but, for the purposes of this appeal, we are only

  concerned with the disability benefits.

¶ 42   There are two general types of disability benefits: temporary

  and permanent. See City of Thornton v. Replogle, 888 P.2d 782, 784

  (Colo. 1995). When the prosecution filed its request for restitution

  in January 2016, the accompanying documents only included

  payments made by the administrator for temporary disability

  benefits. The prosecution amended its request in April 2016, but it

  did not modify the restitution requested for the administrator.

¶ 43   In June 2016, the trial court held the restitution hearing. On

  the morning of the hearing, the prosecutor notified the court that

  the trooper “was provided updated ongoing benefits that were paid

  [by the administrator] so th[e] amount [requested] has changed.”

  The prosecutor told the court that he “could deal with this through


                                    16
  testimony” and that he had given “a copy to counsel of the updated

  information this morning.” Defendant objected to the increased

  request “on the basis of lack of notice.” The trial court “noted” the

  objection, and it chose to proceed with the hearing.

¶ 44   The claims adjuster testified at the hearing. During her

  testimony, the prosecutor offered two exhibits, which reflected the

  increased amount of restitution to be paid to the administrator.

  Defendant objected to the exhibits and to the increased amounts

  contained within them “based on lack of notice.” In response, the

  prosecutor explained that he had discovered that “the amounts we

  had were a little old” and that he had received updated documents

  on the morning of the hearing. He then conceded that, if the court

  wanted to limit the amount of restitution to the previous filing

  because “there needs to be more notice,” he would file an amended

  request. The prosecutor also told the court that the increased

  restitution amounts fell “under the rubric of future medical

  expenses.” The prosecutor did not mention any new restitution

  requests for permanent partial disability.




                                    17
¶ 45   The trial court overruled defendant’s objection based on lack

  of notice, and it admitted the evidence because the objection dealt

  only with “a discovery issue.”

¶ 46   During her testimony, the claims adjuster discussed the

  differences between the original request submitted in January 2016

  and the updated request produced on the morning of the hearing.

  As is pertinent to this appeal, the claims adjuster noted that the

  updated request included payment for permanent partial disability.

¶ 47   At the end of the hearing, the trial court awarded restitution to

  the administrator for its payment to the trooper of permanent

  partial disability benefits.

                B.    Permanent Partial Disability Benefits

¶ 48   Defendant submits that the trial court could not order

  restitution to the administrator for its payment to the trooper of

  permanent partial disability benefits because it was a “loss of future

  earnings,” which section 18-1.3-602(3)(a) of the restitution statute

  does not allow. We conclude, for the following reasons, that the

  permanent partial disability benefits paid to the trooper were not a

  loss of future earnings under the restitution statute.




                                    18
¶ 49   We begin with some background concerning workers’

  compensation disability benefits. To explain the permanent

  disability benefits at issue in this case, we need to start with a

  description of temporary benefits.

¶ 50   Temporary benefits compensate an employee for lost wages

  during the employee’s recovery from a work-related injury. §§ 8-42-

  105 to -106, C.R.S. 2019. Temporary total disability benefits

  compensate an employee for lost wages after an injury when he or

  she is unable to go back to work. § 8-42-105. When an employee

  is able to return to work, but still not at full capacity, temporary

  partial disability benefits compensate an employee for partial lost

  wages. § 8-42-106. Generally, temporary benefits are available

  until the employee reaches maximum medical improvement, which

  occurs “when the underlying condition has stabilized to the extent

  that no further medical treatment will improve the condition.” Allee

  v. Contractors, Inc., 783 P.2d 273, 279 (Colo. 1989).

¶ 51   After the employee reaches maximum medical improvement,

  he or she may be entitled to receive “permanent partial disability”

  benefits. § 8-42-107, C.R.S. 2019. There are two types: scheduled




                                     19
  benefits and whole person benefits. Both types are calculated

  based on a statutory formula. See § 8-42-107(2), (8)(d).

¶ 52   Section 18-1.3-602(3)(a) of the restitution statute prohibits an

  award of restitution for “loss of future earnings.” That phrase is not

  defined by statute, but a division of this court interpreted it to mean

  “earnings not expected to be received by the victim after restitution

  is imposed.” People v. Bryant, 122 P.3d 1026, 1029 (Colo. App.

  2005). Defendant cites to several Colorado appellate court

  decisions describing permanent partial disability benefits as

  compensation for “a loss of future earnings capacity.” See, e.g.,

  Hussion v. Indus. Claims Appeals Office, 991 P.2d 346, 348 (Colo.

  App. 1999). He therefore asserts that loss of future earnings in the

  restitution context is the functional equivalent of a loss of future

  earning capacity in the workers’ compensation context. We are not

  persuaded.

¶ 53   Despite defendant’s contention, the workers’ compensation

  case law is clear: permanent partial disability benefits do not

  compensate an employee for “actual wage loss that has already

  occurred or may occur in the future.” Bus. Ins. Co. v. BFI Waste

  Sys. of N. Am., Inc., 23 P.3d 1261, 1265 (Colo. 2001)(emphasis


                                    20
  added). Rather, it compensates an employee for a permanent

  impairment, which impacts the employee’s present and future

  ability to compete in the labor market. Id. (“The workers’

  compensation system operates on the assumption that the future

  earning capacity of a partially disabled worker will be less than that

  of a non-disabled worker.”).

¶ 54   And an employee who continues to earn the same — or even

  more — after reaching maximum medical improvement may still be

  entitled to permanent partial disability payments. Vail Assocs., Inc.

  v. West, 692 P.2d 1111, 1114 (Colo. 1984). This proposition is true

  because the employee’s entitlement to benefits “must be based

  upon his employability in the open labor market and not merely

  ascertained in the limited context of his future employability with

  his present employer.” Hobbs v. Indus. Claim Appeals Office, 804

  P.2d 210, 212 (Colo. App. 1990)(citation omitted).

¶ 55   Defendant relies on a single conclusion in People v. Oliver,

  2016 COA 180M, to support his position. In Oliver, the division

  noted that, even though death benefits are calculated using the

  employee’s average weekly wage, they are “independent of wage

  benefits because they are owed to the employee’s dependents and


                                    21
  not to the employee herself.” Id. at ¶ 51. True, the disability

  benefits in this case are distinguishable from the death benefits in

  Oliver for that reason. But, for the following reasons, we conclude

  that Oliver supports our conclusion that permanent partial

  disability benefits are compensable under the restitution statute.

¶ 56      In Oliver, ¶ 50, the division concluded that death benefits were

  “out-of-pocket expenses” and “anticipated future expenses” of the

  workers’ compensation administrator in that case, which were both

  allowable restitution under the definition of “restitution” in section

  18-1.3-602(3)(a). In other words, the division determined that the

  administrator was a victim who had suffered a pecuniary loss

  proximately caused by the defendant that could “be reasonably

  calculated in money because it was a monetary payout entirely

  determined by a statutory formula.” Id. So the administrator’s

  payout was “just like any other insurance policy payout.” Id. at

  ¶ 53.

¶ 57      In this case, disability payments are likewise an insurance

  policy payout. See id.; see also § 18-1.3-602(3)(a); People v.

  Lunsford, 43 P.3d 629, 631 (Colo. App. 2001)(noting that an

  insurer’s payout to the victim for “future wage loss” was not


                                      22
  relevant to whether the insurer’s “expenditures were actual

  pecuniary damages”). And the payments were “reasonably

  calculated in money because [they were] a monetary payout entirely

  determined by a statutory formula.” Oliver, ¶ 50; see § 8-42-107(2),

  (8)(d). As the division concluded in Oliver, ¶ 52, “[t]he method by

  which this benefit is calculated is simply not relevant to the

  question whether [the administrator], as an insurer, can recover

  through restitution money it paid” to the trooper.

                               C.    Notice

¶ 58   Defendant asserts that we should remand this case to the trial

  court for a new hearing because he had no notice of the

  prosecution’s request for restitution to the administrator for

  permanent partial disability benefits. Although we agree that he

  was entitled to notice, we conclude that this error was harmless.

¶ 59   “[A] defendant is entitled to adequate notice of the claimed

  amount of damages and the amount of restitution which the court

  is asked to impose.” People v. Valdez, 928 P.2d 1387, 1392 (Colo.

  App. 1996).

¶ 60   The prosecution asserts that defendant had sufficient notice

  because he knew that it was seeking restitution for workers’


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  compensation claims and specifically for restitution to reimburse

  the insurer for “temporary partial disability” and “temporary total

  disability” benefits paid to the trooper. We are not persuaded

  because temporary disability benefits are different from permanent

  disability benefits. Compare § 8-42-105 (temporary total disability),

  and § 8-42-106 (temporary partial disability), with § 8-42-107

  (permanent partial disability), and § 8-42-111, C.R.S. 2019

  (permanent total disability). Indeed, the prosecution did not simply

  request an increase in restitution for temporary benefits that the

  administrator had paid to the trooper; it requested restitution for a

  previously undisclosed type of disability benefit. Defendant had no

  reason to know that the trooper would be entitled to permanent

  disability benefits simply because he had received temporary

  benefits.

¶ 61   The prosecution also asserts that, because defendant never

  specifically asked for a continuance and did not cross-examine the

  claims adjuster, he was not prejudiced by the late disclosure. We

  are not aware of any legal authority that requires a defendant to

  make a specific request for a continuance or cross-examine a

  witness in situations like this one. In fact, the prosecutor


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  suggested that a continuance would be appropriate. And the lack

  of cross-examination could be equally as consistent with

  defendant’s lack of notice and opportunity to defend as with a

  concession that defendant did not want to contest the claims

  adjuster’s testimony.

¶ 62   We conclude that the defendant did not have sufficient notice

  of the prosecution’s request that the court order him to pay

  restitution to the administrator for the permanent partial disability

  benefits that it had paid to the trooper. See People in Interest of

  J.L.R., 895 P.2d 1151, 1153 (Colo. App. 1995). But we conclude,

  for the following reasons, that we do not have to remand that part

  of the order to the trial court for a new hearing.

¶ 63   Defendant asserts that the trial court entered the award for

  permanent partial disability benefits “without adequate notice or an

  opportunity to be heard on the brand new category of” permanent

  partial disability benefits. But his only contention on appeal

  concerning this “brand new category” of benefits is the one that we

  have already decided in Part IV.B: whether such benefits were lost

  future earnings that fell outside the scope of the restitution statute.

  As a result, the court’s error was harmless: we have resolved


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  defendant’s challenge to the order requiring him to pay restitution

  to the administrator for the permanent partial disability benefits

  that it paid to the trooper, and defendant does not raise any other

  challenges to that part of the restitution order.

                     V.   Restitution Order to the Trooper

¶ 64   Defendant contends that the trial court erroneously ordered

  him to pay $979.41 to the trooper for the mother’s travel expenses.

  We agree.

¶ 65   As discussed above, the prosecution requested restitution to

  compensate the trooper’s mother for her travel expenses. The

  prosecution’s written restitution request stated that the trooper had

  paid for his mother’s travel expenses. The evidence at the hearing,

  however, showed that the board had reimbursed the mother’s travel

  expenses. But the trial court ultimately denied the prosecution’s

  request for the mother’s travel expenses for the reasons noted above

  in Part III.B.1.

¶ 66   The court then asked the prosecution to file a proposed order

  that would exclude mother’s travel expenses. But the prosecution’s

  order, which the court signed, did not do so. As a result, the




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  proposed order erroneously requires defendant to pay the trooper

  $979.41 as restitution for those expenses.

¶ 67   Defendant asserts that we should remand this case to the trial

  court so it can correct its clerical error under Crim. P. 36, which

  provides that “[c]lerical mistakes in judgments [and] orders . . .

  arising from oversight or omission may be corrected by the court at

  any time.” The prosecution concedes the error, and it agrees that

  the proper remedy is to remand the case to the trial court for

  correction of the restitution order.

¶ 68   We agree with both the prosecution and defendant, and we

  therefore reverse the $979.41 restitution award to the trooper for

  the mother’s travel expenses. The trial court shall, on remand,

  correct the restitution order by deducting this $979.41 payment to

  the trooper.

                             VI.   Conclusion

¶ 69   We affirm the part of the court’s order requiring defendant to

  pay restitution to the board and the part of the order requiring

  defendant to pay restitution to the administrator for permanent

  partial disability benefits that the administrator paid to the trooper.

  We reverse the part of the order awarding the trooper $979.41 for


                                    27
his mother’s travel expenses and, on remand, direct the trial court

to deduct that amount from the restitution order.

     JUDGE TAUBMAN and JUDGE NAVARRO concur.




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