Opinion
W.C. No. 4-200-325
August 9, 1995
FINAL ORDER
The claimant seeks review of an order of Chief Administrative Law Judge Felter (ALJ) insofar as it determined that the respondents are entitled to offset the claimant's workers' compensation disability benefits based on her receipt of social security disability insurance (SSDI) benefits. The respondents seek review of the order insofar as it based the offset on the claimant's "original" SSDI award. We affirm.
The ALJ found that the claimant was injured on April 18, 1993. Thereafter, she worked intermittently until she permanently left work on November 28, 1993. Prior to, and during her employment with the respondent-employer, the claimant was receiving SSDI benefits. The SSDI benefits were paid as a result of the claimant's pre-injury hearing loss and because she had a "heart murmur." Under these circumstances, the ALJ concluded that the respondents are entitled to offset the claimant's workers' compensation benefits by an amount equal to "fifty percent of claimant's original Social Security award."
I.
On review, the claimant contends the ALJ erred in ordering the SSDI offset. The claimant argues that the SSDI benefits were paid for disabilities which pre-dated the workers' compensation injury. Therefore, the claimant reasons, allowing her to receive both the SSDI and workers' compensation benefits does not cause the "double award" prohibited by § 8-42-103(1)(c)(I), C.R.S. (1994 Cum. Supp.). We reject the claimant's argument.
Section 8-42-103(1)(c)(I) provides as follows:
"In cases where it is determined that periodic disability benefits granted by the federal old-age, survivors, and disability insurance act are payable to an individual and said individual's dependents, the aggregate benefits payable for . . . permanent partial disability . . . pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to one-half such federal periodic benefits."
It is true, as the claimant argues, that a number of cases have interpreted § 8-42-103(1)(c)(I) and its predecessors as a legislative attempt to prevent "double compensation" for the same injury. For instance, in Arellano v. Director, Division of Labor, 42 Colo. App. 149, 590 P.2d 987 (1979), the court upheld an SSDI offset against workers' compensation benefits because the claimant "did not present any evidence that the Social Security benefits paid to him were not a result of "his industrial injury. See also Engelbrecht v. Hartford Accident and Indemnity Co., 680 P.2d 231 (Colo. 1984) (purpose of former § 8-51-101(1)(c) is to prevent double awards for the same disability). In view of these cases, we previously held that where the evidence shows that the SSDI benefits are not paid as a result of the industrial disability, an offset against workers' compensation benefits is not proper under the statute. Eg., Cochran v. A Acme Co., Inc., W.C. No. 3-734-100, May 2, 1988.
However, in light of our Supreme Court's recent decision in L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994), we are now persuaded that an SSDI offset against workers' compensation benefits is proper regardless of whether the SSDI benefits are paid as a result of the industrial injury, or some other disability. In Goode, the Supreme Court was called upon to determine whether "mother's insurance benefits" constitute "periodic death benefits granted by the federal old age, survivors, and disability insurance act" within the meaning of the statute currently codified at § 8-42-114, C.R.S. (1994 Cum. Supp.). The Goode court held that the "plain language of the statute" demonstrates the General Assembly's intent that death benefits "be offset by all survivors' benefits paid to a family." 867 P.2d at 877.
In addition to the argument based on the statute's plain language, the Goode court cited the treatise of Professor Larson. The pertinent citation, found at 4 Larson, Workmen's Compensation Law, § 97.10, is as follows:
"[Offsetting] is inevitable, once it is recognized that workmen's compensation, unemployment compensation, non-occupational sickness and disability insurance, and old age and survivors' insurance are all parts of a system based upon common principle. If this is denied then all coordination becomes impossible and social legislation becomes a grab-bag of assorted unrelated benefits."
Under this theoretical framework, it has been held that veterans benefits may be offset against SSDI benefits, even if the veterans benefits are payable for a disability different than that which resulted in the SSDI benefits. See 4 Larson, Workmen's Compensation Law, § 97.33. Apparently, some states which create a statutory offset of SSDI benefits against workers' compensation benefits have "carefully limited" the offset to "benefits for the same injury." 4 Larson, Workmen's Compensation Law, § 97.35(e).
Applying these principles here, we conclude that § 8-42-103(1)(c)(I) permits an offset of SSDI benefits against workers' compensation benefits, even if the SSDI benefits are paid for a separate disability. First, § 8-42-103(1)(c)(I) contains no explicit language indicating that SSDI benefits, which are the subject of the offset, must be paid for the same disability created by the workers' compensation injury. As in Goode, the plain language of the statute does not support such a distinction.
Moreover, permitting a claimant to receive both SSDI and workers' compensation benefits ignores the principle that both types of benefits are part of an overall wage-loss protection system. Permitting recovery of both types of benefits would promote "double recovery" for the claimant's overall loss of wage earning capacity, and create the "grab-bag" of benefits condemned in L.E.L. Construction v. Goode, supra.
Therefore, we conclude that the ALJ correctly held that the claimant's workers' compensation disability benefits are subject to an offset on account of the claimant's receipt of SSDI benefits. To the extent our prior decisions express a contrary view, we have now reconsidered those decisions and will adhere to the views expressed in this order. Further, to the extent prior judicial decisions suggest conflicting results, we consider Goode to be the most persuasive authority.
II.
The respondents contend that the ALJ erred in limiting the offset to the claimant's "original" SSDI award. The essence of the respondents' argument is that once the claimant became disabled from working for the respondent she lost her entitlement to SSDI benefits. However, respondents contend, once she again receives SSDI, it will be on account of her injury with the respondent, and there is "absolutely no reason why the SSDI offset should be at the original rate in 1983." We reject this argument.
As we understand the ALJ's order, he determined that the only SSDI benefit subject to offset is the claimant's initial or base award. Conversely, we understand him to have held that any increases in the base amount, which result from cost of living increases, are not subject to offset. This conclusion is correct under Engelbrecht v. Hartford Accident and Indemnity Co., supra, and we perceive no error. We do not purport to make any ruling should there be a redetermination of the claimant's base SSDI award.
IT IS THEREFORE ORDERED that the ALJ's order, dated November 2, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed August 9, 1995 to the following parties:
Peggy J. Korang, 12205 N. Perry St., #210, Broomfield, CO 80020
Bank One Services Corporation, 8461 Delaware St., Thornton, CO 80221-4821
Continental Insurance Company, Attn: JoAnn Farmer, P. O. Box 909753, Chicago, IL 60690-9753
James A. May, Esq., 155 S. Madison, #330, Denver, CO 80203
(For the Claimant)
Lawrence D. Blackman, Esq. and Jordan S. Levine, Esq., 1290 Broadway, #708, Denver, CO 80203
(For the Respondents)
By: ________________________