Opinion
W.C. No. 4-164-701
February 10, 1997
ORDER OF REMAND
The respondents seek review of a final order of Administrative Law Judge Erickson (ALJ) insofar as the ALJ determined that there was no overpayment of temporary disability benefits on account of the claimant's receipt of unemployment insurance benefits. We set aside the contested portion of the order, and remand for entry of a new order.
The ALJ found that the claimant sustained a compensable injury in February 1993. Initially, the respondents contested liability for the injury, but on January 5, 1994 they admitted liability for temporary total disability benefits commencing February 23, 1993.
Between March 1993 and October 1993, the claimant applied for and received unemployment insurance benefits in the amount of $7,491. Relying on § 8-42-103(1)(f), C.R.S. (1996 Cum. Supp.), the respondents argued that they were entitled to reduce the claimant's temporary total disability benefits for the period from February 1993 to January 1994, on account of the claimant's receipt of the unemployment insurance benefits. However, the ALJ concluded that the respondents are not entitled to an offset, or declaration of overpayment, because they "failed to prove that Claimant received temporary total disability benefits" between March 1993 and October 1993.
I.
On review, the respondents first contend that the ALJ erred in holding that § 8-42-103(1)(f) is inapplicable because the claimant did not actually "receive" temporary total disability benefits during the period February 1993 to January 1994. We agree with this argument.
The pertinent portion of § 8-42-103(1)(f) provides:
"In cases where it is determined that unemployment insurance benefits are payable to an employee, compensation for temporary disability shall be reduced, but not below zero, by the amount of the unemployment insurance benefits received . . ."
When interpreting this statute we must seek effect the legislative intent. In so doing, we should first examine the language of the statute, and give the words their plain and ordinary meanings. If no absurdity is involved, we need not resort to rules of statutory construction. City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995). However, to the extent any ambiguity exists, we may consider the problem which the statute was designed to remedy, while giving a consistent and harmonious reading to all parts of the statute. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
Here, the statute contains no language requiring that the temporary total disability benefits actually be "received" contemporaneously with the unemployment insurance benefits. To the contrary, the statute provides that "compensation for temporary disability" shall be reduced by unemployment insurance benefits "received." Thus, the plain and ordinary meaning of the statutory language does not support the ALJ's conclusion.
However, even if the statute were viewed as ambiguous, the result reached by the ALJ is contrary to the purposes underlying the statute. As stated in Axelson v. Pace Membership Warehouse, 923 P.2d 322 (Colo.App. 1996), cert. granted, September 3, 1996, the purpose of § 8-42-103(1)(f) is to promote cost reduction and prevent "double recovery" by insuring that a claimant does not receive workers' compensation benefits and unemployment insurance benefits for the same period of disability. Such a double recovery may occur if a claimant receives unemployment insurance benefits for a period of time, and is subsequently awarded temporary total disability benefits for the same period of time. Further, "cost reduction" is not served by the ALJ's interpretation of the statute.
II.
Next, the respondents recognize that, apart from the issue of statutory interpretation, the facts of this case place it squarely within the holding of Axelson v. Pace Membership Warehouse, supra. In Axelson, the court held that § 8-42-103(1)(f) violates equal protection when applied to claimants who must apply for unemployment benefits while litigating their entitlement to temporary disability benefits. However, the respondents argue that Axelson was wrongly decided.
Needless to say, it is beyond our power to overrule Axelson because we are bound by the published decisions of the Court of Appeals. C.A.R. 35(f). However, the respondents go on to argue that Axelson should not be applied retroactively so as to deprive them of the unemployment offset in this case. We conclude that it is appropriate to remand the matter for a determination of whether Axelson should be applied retroactively.
Here, the ALJ entered his order on December 21, 1995. The Court of Appeals did not issue its decision in Axelson v. Pace Membership Warehouse until March 28, 1996. Consequently, the ALJ did not have an opportunity to determine whether or not the holding in Axelson should be applied retroactively so as to deprive the respondents of the offset.
Initially, we note the claimant's argument that there is no question of retroactivity because this is not a "matter involving the reopening of a case or the recovery of monies wrongly withheld." However, an issue of retroactivity arises when a party seeks application of a judicial decision to events and transactions which occurred prior to the date the judicial decision was issued. See Marinez v. Industrial Commission, 746 P.2d 552 (Colo. 1987) (question of retroactivity was raised where issue was whether judicial decision concerning scope of social security disability offset should apply to offsets taken before the judicial decision). Here, the claimant applied for and received unemployment insurance benefits prior to the announcement of the decision in Axelson. Further, the respondents' right to claim the offset, if any, arose when they filed their admission in January 1994 . Thus, application of the Axelson rule to the facts of this case would be "retroactive."
Because this case does raise an issue of retroactivity, we conclude that a remand is necessary. First, we note that the general rule is that judicial decisions are to be applied retroactively. Loffland Brothers Co. v. Industrial Claim Appeals Panel, 754 P.2d at 769 (Colo.App. 1988), aff'd., 770 P.2d 1221(Colo. 1989). However, there is an exception to the rule of retroactivity if certain conditions exist.
In Marinez v. Industrial Commission, supra, the court held that, when considering retroactivity, three factors must be considered. First, an ALJ must determine whether the judicial decision, in this case Axelson v. Pace Membership Warehouse, establishes a new rule of law. If the decision establishes a new rule of law, the ALJ must consider the purpose of the rule and whether retroactive application would further or retard its operation. Finally, an ALJ must determine whether retroactive application of the rule will result in inequity or hardship. The third factor, and possibly the second, present evidentiary questions.
Consequently, we must remand the matter for an evidentiary hearing concerning whether or not Axelson v. Pace Membership Warehouse should be applied retroactively. Once the evidence is presented, the ALJ shall make specific findings of fact and conclusions of law concerning this issue. In reaching this result, we should not be understood as expressing any opinions concerning the retroactivity of Axelson. IT IS THEREFORE ORDERED that the disputed portion of the ALJ's order dated December 21, 1995, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
Copies of this decision were mailed February 10, 1997 to the following parties:
Shelli L. Edrington, Steven U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940
Office of the District Attorney, Fourth Judicial District, P.O. Box 782, Westminster, CO 80030-0782
Colorado Compensation Insurance Authority, Attn: Mike Steiner, Esq. Curt Kriksciun, Esq. (Interagency Mail)
Douglas P. Ruegsegger, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
Steven U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
By: ___________________________________________