Opinion
W.C. No. 3-505-339
October 4, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which ruled the claimant's death benefits are subject to reduction based on the claimant's eligibility to receive Social Security widow's benefits. We affirm.
The facts are undisputed. The claimant's husband died in an industrial accident in 1977, and the claimant received death benefits under the Act. At the respondent-insurer's request, the claimant applied for the Social Security widow's benefit in 2000. The claimant was found eligible commencing January 1, 2000. The weekly widow's benefit exceeded the weekly death benefit, and the insurer filed an admission which completely eliminated the compensation death benefits.
Subsequently, the claimant applied for Social Security retirement benefits. The claimant was found eligible and began receiving those benefits on July 29, 2001. Thereafter, the claimant chose not to receive the widow's benefit, although she remains eligible to receive it. The claimant elected not to receive the widow's benefit in an effort to avoid an offset against the workers' compensation death benefits.
The claimant argued to the ALJ that recent changes to the Social Security statute now treat retirement benefits as an "annuity" rather than wage replacement. Thus, the claimant argued it is unconstitutional to offset such benefits against workers' compensation benefits. However, relying on Ihnen v. Western Forge, 936 P.2d 634 (Colo.App. 1997), and Hurtado v. CFI Steel Corp., 168 Colo. 37, 449 P.2d 819 (1969), the ALJ ruled the claimant could not avoid the offset by electing not to accept the widow's benefit. Thus, the ALJ ruled the claimant's constitutional argument is "moot."
On review, the claimant reiterates the constitutional argument regarding offsets for Social Security retirement benefits. However, we agree with the ALJ's order.
Here, the applicable offset statute provides that the "aggregate benefits payable" for death shall be reduced one hundred percent by "periodic death benefits granted by the federal old age, survivors, and disability insurance act." Former § 8-50-103 [currently codified with changes not relevant to this case at § 8-42-114, C.R.S. 2002]; Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). As the ALJ found, the claimant has an obligation to apply for such benefits "not only to benefit [herself] but also to benefit [her] employer." Hurtado v. CFI Steel Corp., 449 P.2d at 821. If the claimant fails to apply for the benefits, the respondents may calculate the offset and claim it without formal adjudication. Id. at 822. It is not necessary that the claimant actually receive the social security benefits, nor is she entitled to forego Social Security benefits because it is to her net economic advantage. Ihnen v. Western Forge, supra.
The claimant advances no argument that the statutory offset for periodic death benefits payable under the Social Security act is unconstitutional. Instead, the claimant's argument focuses on the offset for social security retirement benefits. Because the claimant's argument does not address the basis of the ALJ's order, the claimant advances no legal justification for interfering with the order, and we perceive none.
Under these circumstances, we, like the ALJ, need not reach the claimant's argument concerning the constitutionality of the offset for social security retirement benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated June 4, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 4, 2002 to the following parties:
Phyllis Fletcher, 1166 Crespi Dr., Sunnyvale, CA 94086
Falcon Mines, c/o Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Donald James Kaufman, Esq., 401 23rd St., #302, Glenwood Springs, CO 81601-4311 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202
By: ___A. Hurtado___