Opinion
W.C. No. 4-184-977
August 9, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied his claim for permanent total disability benefits and permitted an offset based on the claimant's receipt of social security disability insurance benefits (SSDI). We affirm.
The ALJ found that the claimant sustained a compensable shoulder injury in August 1993. However, citing the respondents' vocational expert's testimony that the claimant is capable of engaging in employment as a parking lot attendant or security guard, the ALJ found that the claimant failed to prove his entitlement to permanent total disability benefits. Further, the ALJ permitted the respondents to reduce their liability for permanent partial disability benefits based on the claimant's receipt of SSDI benefits.
I.
On review, the claimant concedes that the claimant's entitlement to permanent total disability benefits was a question of fact for resolution by the ALJ. However, the claimant argues that the ALJ should have interpreted the evidence to find the claimant permanently and totally disabled.
The claimant is correct in stating that the issue of whether the claimant is permanently and totally disabled is one of fact for resolution by the ALJ. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). In deciding the issue, the ALJ was required to determine whether the claimant is able to earn "any wages." McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995); but see Christie v. Coors Transportation Co., ___ P.2d ___ (Colo.App. No. 95CA0581, December 7, 1995), cert. granted, July 2, 1996.
We have reviewed the record and find that substantial, albeit conflicting, evidence supports the ALJ's determination that the claimant failed to carry his burden of proof. The fact that the evidence might have supported contrary findings and conclusions is immaterial on review. Consequently, we are without power to interfere with the ALJ's order. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988); § 8-43-301(8), C.R.S. (1995 Cum. Supp.).
II.
The claimant's next contention is that the ALJ erred in ordering that the respondents' liability for permanent partial disability benefits be offset by the claimant's receipt of SSDI benefits. The claimant argues that the Social Security Administration found that the claimant is "unable to return to work." However, the claimant states that the ALJ found that the "inability to return to work is not the result of the industrial accident." Thus, the claimant reasons that the award of SSDI benefits must have been due to one or more of the claimant's pre-existing conditions and should not be offset against benefits for the workers' compensation injury. We are not persuaded.
Assuming, arguendo, that SSDI benefits may not be offset against workers' compensation benefits where the SSDI benefits are not paid on account of the workers' compensation injury, the record is insufficient to support the claimant's argument. In Arellano v. Division of Labor, 42 Colo. App. 149, 590 P.2d 987 (1979), the Court of Appeals held that where it is established that SSDI benefits are being paid a presumption arises that the SSDI benefits are being paid as a result of the industrial injury. Consequently, the claimant bears the burden of presenting evidence that the SSDI benefits are not paid because of the workers' compensation injury.
Here, as in Arellano, the claimant presented no evidence whatsoever concerning the basis of the SSDI award. There is evidence that the claimant suffered from conditions which were partially disabling prior to the industrial injury. However, there is no evidence that the SSDI benefits were paid prior to the industrial injury, nor any evidence that the SSDI benefits were attributable to the pre-existing conditions. Thus, the ALJ properly declined the claimant's invitation to speculate concerning the basis of the SSDI award.
In any event, as the claimant recognizes, we have previously held that SSDI benefits may be offset against workers' compensation benefits regardless of whether the SSDI benefits are paid on account of the workers' compensation injury. See Korang v. Bank One Colorado, Corp., W.C. No. 4-200-325, April 9, 1995. In Korang, we noted that § 8-42-103(1)(c)(I), C.R.S. (1995 Cum. Supp.) contains no express language requiring that the SSDI benefits be paid on account of the workers' compensation disability in order for the respondents to receive an offset. Further, relying on L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994), we concluded that the offset provision is an effort to coordinate workers' compensation benefits with SSDI benefits, and requiring that benefits be payable on account of the same disability would foster the type of "double recovery" and "grab-bag" of benefits condemned in L.E.L. Construction.
We recognize that on March 21, 1996 the Court of Appeals vacated our decision in Korang. Korang v. Industrial Claim Appeals Office, (Colo.App. No. 95CA1454, March 21, 1996) (not selected for publication). However, the court's action appears to have been the result of a request for remand by the parties and did not constitute a ruling on the merits. Consequently, we adhere to our ruling in Korang.
It follows that, in this case, the ALJ correctly allowed the offset. Regardless of whether the SSDI benefits were paid on account of the workers' compensation injury or the claimant's pre-existing conditions, § 8-42-103(1)(c)(I) supports the offset.
IT IS THEREFORE ORDERED that the ALJ's order dated January 30, 1996, 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, 1996 to the following parties:
Leroy J. Gauger, 6775 McClelland Rd., Calhan, CO 80808
Natkin Company, P.O. Box 1160, Columbus, OH 43216-1160
Aetna Life Casualty, Bonnie Burley, P.O. Box 173712, Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
By: _________________________