Opinion
W.C. No. 4-704-929.
January 16, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated August 17, 2007 that allowed the respondents to offset an overpayment for child support paid to the Child Support Registry. We affirm.
The sole issue raised at the hearing was whether the respondents should be allowed to claim an overpayment for child support paid to the Child Support Registry. The parties stipulated to the following facts. The claimant was injured on October 30, 2006. On November 16, 2006, the respondents received a Notice of Administrative Lien and Attachment from Weld County District Court regarding the claimant's child support obligation for a total amount of $24,348.62. The claimant and the insurer's claims adjuster were aware of the lien. The notice provided that the respondents were to take 50 percent of any lump sum amounts paid to the claimant to satisfy the lien. On March 6, 2007, the respondents' filed a General Admission of Liability admitting to temporary total disability (TTD) benefits from October 31, 2006, and continuing. On May 6, 2007, the respondents issued a payment to the claimant in the amount of $13,163.96 for past TTD benefits. The claimant had been receiving TTD benefits in the amount of $719.74 per week, $25 of which was being paid to the Family Support Registry. The respondents admit that they did not pay 50 percent of the lump sum payment on March 6, 2007, to the Family Support Registry in the amount of $6,581.98, pursuant to the Child Support Lien. The respondents stated that they did not issue the payment to the Family Support Registry due to an oversight by the adjuster, as he wished to issue the payment to the claimant as quickly as possible. The parties attended a pre-hearing conference regarding the overpayment issue. At the prehearing conference, the claimant refused to agree to decrease any of the respondents' future indemnity amounts to allow the respondents to recover the past due child support lien. On July 5, 2007, the respondents issued a check in the amount of $6,581.98 to the Family Support Registry for 50 percent of the lump sum payment made on March 6, 2007. The ALJ determined that the respondents were entitled to an offset of $6,581.98 for the overpaid lump sum payment.
I.
On appeal, the claimant contends that the respondents did not establish that an "overpayment" existed. The claimant argues that the carrier could have been penalized or fined pursuant to § 26-13-122(1)(j) C.R.S. 2007 if it had not made the payment to the Child Support Registry. That statute provides that a workers' compensation insurance carrier who wrongfully fails to withhold benefits in accordance with the provisions of the act may be held liable for an amount up to the accumulated amount the carrier should have withheld from the claimant's benefits. The claimant argues that by seeking an offset the insurer in essence is requesting that the claimant pay the fine that the insurer would have incurred for failing to comply with the support lien. We disagree.
The insurer appears to have complied with its obligations under § 26-13-122(1)(j)and was not subject to a fine. At any rate the issue of imposition of a fine under § 26-13-122(1)(j) was not within the jurisdiction of the ALJ or ours. Here the respondents filed an application for hearing on the issue of the alleged overpayment of TTD due to the child support lien. ALJs are expressly granted authority in § 8-43-207(q), C.R.S. 2007, to conduct hearings to "[r]equire repayment of overpayments." The statutory definition of an "overpayment" is "money received by a claimant that exceeds the amount that should have been paid, or which the claimant was not entitled to receive, or which results in duplicate benefits because of offsets that reduce disability or death benefits payable under said articles." Section 8-40-201(15.5), C.R.S. 2007. In our view, the payment of the $6,581.98 to the Family Support Registry made in connection with the lien and attachment from Weld County District Court regarding the claimant's child support obligation satisfies the definition of an "overpayment" within the meaning of § 8-40-201(15.5).
It is apparently uncontested that the respondents' payment to the claimant of $13,163.96 for past TTD benefits without the deduction of fifty percent pursuant to the lien and attachment was due to an oversight by the adjuster. The respondents' claims adjuster did not intend to pay money that was not owed, but rather was motivated by a desire to issue the payment to the claimant as quickly as possible. Under these circumstances, the claimant was "not entitled to receive" the payment of $6,581.98, and that amount therefore satisfies the statutory definition of an "overpayment." See Cooper v. Industrial Claim Appeals Office, 109 P.3d 1056, 1059 (Colo.App. 2005) ("Generally, an `overpayment' is anything that has been `paid' but is not `owing as a matter of law."); Padilla v. Memorial Hospital, W.C. No. 4-551-866 (June 14, 2007). Therefore, in our opinion the ALJ did not error in determining that there had been an overpayment.
II.
The claimant next argues that the respondents cannot avoid paying the TTD benefits that they admitted for pursuant to the general admission they filed on March 6, 2007. The claimant citing Pacesetter Corp. v. Collett, 33 P.3d. 1230 (Colo.App. 2001) argues that there is no provision in the Act which permits retroactive withdrawals of an admission of liability.
Here, the ALJ allowed the respondents an offset, which does not require the claimant to pay back monies previously paid to him but instead results in a reduction in the claimant's future workers' compensation disability benefits. This reduction in future benefits was based on the amount by which the claimant's previously paid workers' compensation disability benefits should have been reduced in the first instance because of the overpaid lump sum benefits paid to the claimant. The ALJ sought to prevent a windfall to the claimant of duplicative benefits. In our view the ALJ's reasoning is consistent with the purposes of the Act. Indeed the definition of "overpayment" in § 8-40-201(15.5), C.R.S. 2007, refutes the notion that the claimant is entitled keep TTD benefits overpaid by mistake under the circumstances present here. Ashley v. King Soopers W. C. Nos. 4-573-332; 4-584-481(October 28, 2004).
The claimant also relies on HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990), which held that an admission may not be withdrawn retroactively unless it was procured by fraud. However, in 1997, the General Assembly amended subsections (1) and (2)(a) of § 8-43-303 to permit reopening of an award on grounds of "fraud" and "overpayment," in addition to the traditional grounds of error, a mistake, or change in condition. The 1997 amendments also provide that "no such reopening shall affect the earlier award as to moneys already paid except in cases of fraud or overpayment." Further, the 1997 amendments added § 8-40-201(15.5), defining "overpayment" as "money received by a claimant." 1997 Colo. Sess. Laws, vol. 1, ch. 45 at 112-16. Here, the respondents had not filed a final admission and so no petition to reopen was necessary and in our view HLJ Management Group is inapposite.
The statute contemplates that in the case of an overpayment the ALJ has the authority to fashion a remedy. Stroman v. Southway Services, Inc. W. C. No. 4-366-989 (August 31, 1999); Simpson v. Benchmark/Elite, Inc. W.C. No. 4-467-097 (August 8, 2007). The ALJ's interpretation of these facts is consistent with the legislative intent of the 1997 amendments. The 1997 legislation is designated as an act "concerning the recovery from claimants of workers' compensation benefits to which such claimants are not entitled." Ashley v. King Soopers, W. C. Nos. 4-573-332, 4-584-481 (October 28, 2004).
The claimant also contends that the ALJ erroneously allowed the respondent to recover the overpayment because HLJ Management Group, Inc. prevents a reopening from affecting an earlier award as to "moneys already paid." The claimant further argues that allowing recovery of the overpayment would permit the respondents to retroactively withdraw an admission of liability concerning the claimant's disability benefits. We disagree that the ALJ erred in allowing the recoupment of the overpayment.
In Cody v. Industrial Claim Appeals Office, 940 P.2d 1042 (Colo.App. 1996), the court of appeals held that in cases of reopening, § 8-43-303(1) does not preclude recoupment of overpayments by the mechanism of reducing future benefits. Rather, the statute precludes the ALJ from ordering the claimant "actually to pay back moneys from his initial award." Id., 940 P.2d at 1043. This conclusion is consistent with the statutory objective of reopening to permit equitable adjustments in a previous award of benefits. See Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996). Here, the ALJ specifically noted that allowing the respondents to offset the overpayment against future amounts does not require the claimant to pay back monies previously paid to him, but instead results in a reduction in the claimant's future workers' compensation disability benefits. Conclusions of Law § 3 at 3. Consequently, in our opinion the ALJ had authority to diminish the claimant's future permanent disability benefits as a method for recovery of the overpayment.
III.
The claimant also contends that there were no documents submitted which would indicate that the claimant was put on notice that a lien had been filed with the respondents. As we understand the claimant's argument, he asserts that the respondents were required to include the notice of the lien in the general admission of liability and he complains that their failure to do so deprived him of notice of the lien. The claimant further argues that the respondents are precluded from taking an offset because they did not file a general admission expressly indicating that they were reducing the claimant's benefits pursuant to a properly served child support enforcement lien. We disagree.
In our view the claimant had adequate notice that the lien existed and would be complied with. The application for hearing lists the issue as "Overpayment of TTD benefits due to child support lien." At the hearing, the parties filed a written stipulation that the claimant and the respondent adjuster were both aware of the lien. This stipulation establishes that both parties knew of the lien, and we perceive no error in connection with the respondents' request for an ALJ to conduct a hearing seeking to require repayment of an overpayments pursuant to § 8-43-207(q).
IV.
The claimant also contends that the respondents should not be allowed to take more than 50 percent of the indemnity benefits due. The ALJ's order provides simply that the respondents are entitled to an offset of $6,581.98. The claimant did not request the ALJ to fashion a particular recovery method. The argument regarding a limitation on the amount of the offset against indemnity benefits was not raised by the claimant before the ALJ. ( See Claimant's Post Hearing Position Statement, July 24, 2007 and transcript 2-4). Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). Therefore, we shall not consider the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ's order dated August 17, 2007, is affirmed. INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun ___________________________________ Thomas Schrant
PERRY L GARRETT, HOLYOKE, CO, (Claimant)
TRINIDAD DRILLING U.S.A., INC., Attn: BOB ROONEY, SAFETY DIRECTOR, C/O: CHEYENNE DRILLING COMPANY, WOODWARD, OK, (Employer)
COMMERCE INDUSTRY INSURANCE COMPANY, Attn: CORRIE CHAPMAN, C/O: AIG CLAIM SERVICES, INC., (PHOENIX, AZ OFFICE), SHAWNEE MISSION, KS (Insurer)
FRANKLIN D AZAR ASSOCIATES, Attn: JOHN M CONNELL, ESQ., AURORA, CO (For Claimant)
SENTER GOLDFARB RICE, LLC, Attn: SEAN ELLIOTT, ESQ., DENVER, CO, (For Respondents)