Opinion
W.C. No. 3-070-937.
May 7, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Krumreich (ALJ) dated January 14, 2009 that reopened the award and ordered that the Subsequent Injury Fund (SIF) may terminate its payments of death benefits to the decedent's widow and that the carrier was required to pay the death benefits without apportionment to SIF. The ALJ's order also required the carrier to reimburse SIF for benefits erroneously paid prior to the reopening. We affirm.
The order entered here was pursuant to SIF's motion for summary judgment and therefore no hearing was held. The ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained an admittedly compensable injury to his right leg on December 28, 1990, when he slipped on ice getting out of a truck. SIF admitted for permanent total disability benefits beginning on December 13, 1994, and a full and final settlement was entered into between the claimant and SIF that was approved by the Director on May 9, 1997. The claimant died on October 24, 1998 as a result of the compensable injury. The claimant's widow was subsequently awarded death benefits beginning on October 24, 1998. In an order dated July 15, 1999, ALJ Edward Martinez ordered the respondents to pay 65 percent of the death benefits and SIF to pay the remaining 35 percent. SIF's portion of the payment was $88.16 per week after offsets, which was 35 percent of the total benefit of $251.88 per week. Through December 6, 2008, SIF had paid a total of $46,561.07, in addition to $591.32 in funeral costs and $94.15 in interest.
Based upon these findings of evidentiary fact, the ALJ concluded that the order requiring SIF to pay a portion of the death benefits was in error. Accordingly, he reopened the issue and ordered that SIF was no longer liable for any portion of the death benefits and that the carrier was liable for the full amount. The ALJ also ordered the carrier to reimburse SIF the amount it had erroneously paid.
The carrier appealed the ALJ's order and argues that the ALJ erred in ordering it to repay SIF the amount that SIF had erroneously paid to the decedent's widow in death benefits, funeral expenses, and interest. The carrier's sole argument is regarding the propriety of the reimbursement order, and the carrier does not contend that the ALJ erred in reopening the claim and in ordering that SIF is no longer liable for any portion of the death benefits. We disagree that the ALJ erred in ordering the carrier to reimburse SIF.
Initially, we note that it is well-established that summary judgment is an available procedure in a workers' compensation proceeding. The Office of Administrative Courts (OAC) has promulgated a procedural rule authorizing summary judgment in workers' compensation proceedings. OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts' Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). Here, we do not understand any party to be contending that the ALJ erred in resolving this matter on summary judgment.
In the context of summary judgment, we review the ALJ's legal conclusions de novo. See A.C. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). However, pursuant to § 8-43-301(8), C.R.S. 2008, we have authority to set aside an ALJ's order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law.
Here, the question on review is whether applicable law supports the ALJ's conclusion that it was permissible to order the carrier to reimburse SIF the amount SIF erroneously paid pursuant to ALJ Martinez's order. We conclude that it does.
We agree with the general principle relied upon by the ALJ that he has jurisdiction "to order reimbursement of benefits between insurance carriers. . . ." Order Granting Summary Judgment at 5, ¶ 16 (unpaginated). Section 8-43-215, C.R.S. 2008 directs the ALJ to enter an order determining "by whom and to whom" benefits should be paid. This authority allows an ALJ to resolve disputes between insurers and to order a workers' compensation insurer to reimburse another carrier for benefits which the first insurer paid to the claimant. Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986). In general, where the relevant question is which of two or more insurers is liable for compensation, the insurer determined to be liable may be ordered to reimburse an insurer for amounts previously paid. E.g., Johnson-Reynolds v. Virtual Industries, W.C. No. 4-266-253 (July 23, 1999); Sanchez v. Central Bank of Denver, W.C. No. 3-912-325 (January 9, 1995); Watts v. Eben Ezer Lutheran Care Center, W.C. No. 3-105-560 (February 24, 1994).
We conclude then, that absent some statutory restriction on the ALJ's authority, the Act authorizes an order requiring one insurer to reimburse another. Here, however, the relevant question is whether the reopening statute, § 8-43-303, C.R.S. 2008, permits the ALJ to order one carrier to reimburse another for amounts erroneously paid after reopening of the claim. The version of that statute applied by the ALJ provides that:
At any time within two years after the date the late temporary or permanent disability benefits or dependent benefits excluding medical benefits become due or payable, the director or an administrative law judge may, after notice to all parties, review and reopen an award on the ground of fraud, an overpayment, an error, a mistake, or a change in condition. . . . Upon a prima facie showing that the claimant received overpayments, the award shall be reopened solely as to overpayments and repayment shall be ordered. . . . If an award is reopened under this paragraph (a) on grounds of an error, a mistake, or a change in condition, compensation and medical benefits previously ordered may be ended, diminished, maintained, or increased. No such reopening shall affect the earlier award as to moneys already paid except in cases of fraud or overpayment.
Section 8-43-303(2)(a), C.R.S. 2008 (emphasis added). The order under consideration here reopened the claim based upon mistake, and the language prohibiting any effect on "moneys already paid" is therefore relevant.
However, we conclude that the language does not preclude the order entered by ALJ Krumreich. The primary goal of any reviewing forum in construing a statute is to determine and give effect to the intent of the General Assembly. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). If possible, we must give effect to the intent of the General Assembly as reflected in the plain language of the statute, and we will not depart from that plain language unless it leads to an absurd result. And, the statutory scheme must be considered as a whole in order to give a consistent, harmonious, and sensible effect to all its parts. Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004).
The court of appeals has stated that the statutory language that an award following reopening of a claim must not "affect the earlier award as to moneys already paid" is only applicable where the later award requires the claimant to repay money previously received. Thus, in Kuziel v. Pet Fair, Inc., 948 P.2d 103, 105 (Colo.App. 1997) the court noted that one important purpose of the reopening provisions was to permit an "equitable adjustment" of the award depending upon the changed circumstances. Although in Kuziel the basis of the reopening was the claimant's changed condition, in our view the court's observations concerning the policy of equitably adjusting the award is equally applicable to cases, such as this one, where the basis of the reopening was a mistake in the earlier award. Moreover, the court rejected the argument that the prohibition against affecting moneys already paid precluded an adjustment of the claimant's benefits in the form of an offset against her future benefits. The court stated that the language regarding moneys already paid only applied where the claimant is required to repay benefits previously received: "A subsequent award will affect an earlier award as to moneys already paid only if the claimant is required actually to pay back moneys from the initial award." Kuziel, 948 P.2d at 105. See also Morrison v. Clayton Coal Co., 116 Colo. 501, 181 P.2d 1011, 1013 (1947) ("The one way in which [moneys already paid] could be affected by the review would be by the finding that those moneys were not the property of the claimant, but must be returned to the insurer.")
We conclude from these cases that the order to the carrier to reimburse SIF for the amounts mistakenly paid did not "affect the earlier award as to moneys already paid" within the meaning of § 8-43-303(2)(a). As noted, that language prohibits any adjustment of the award that would require the claimant (or in this case the widow) to repay money previously paid to her. Here, we conclude that the order requiring the carrier was merely an equitable adjustment of the respective liability of the carrier and SIF, which is not precluded by the statutory language. Accordingly, we are unpersuaded to disturb the ALJ's order in this respect. As previously noted, the carrier did not allege any other error on appeal.
Because of our resolution of this dispute affirming the ALJ's order, it is unnecessary for us to address and resolve SIF's argument that the "overpayment" amendments to § 8-43-303 and to other portions of the Act permit the order requiring the carrier to reimburse SIF. See § 8-40-201(15.5), C.R.S. 2008 (defining "overpayment"). IT IS THEREFORE ORDERED that the ALJ=s order dated January 14, 2009, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________ Curt Kriksciun
_____________________ Thomas Schrant
JESS EHRSAM (DEC), Attn: LOIS F EHRSAM, PARACHUTE, CO, (Claimant).
BONNEVILLE FOODS CORPORATION, RIFLE, CO, (Employer).
EMPLOYERS INS. CO. OF WAUSAU, Attn: KANSAS CITY CLAIMS OFFICE, KANSAS CITY, MO, (Insurer).
DONALD F KAUFMAN, Attn: DONALD F KAUFMAN, ESQ., GLENWOOD SPRINGS, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: DAVID G KROLL, ESQ., DENVER, CO, (For Respondents).
DEPARTMENT OF LAW, Attn: JOSEPH F HAUGHAIN, F.A.A.G., DENVER, CO, (Other Party).
WILLIAM STERCK, Attn: WILLIAM STERCK, ESQ., DENVER, CO, (Other Party 2).