Opinion
W.C. No. 3-995-722
April 17, 1996
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Wells (ALJ), dated March 1, 1995, which denied its request to reduce the claimant's temporary disability benefits based on her entitlement to social security benefits. We agree that the respondent is entitled to the offset under the statute, and therefore reverse the ALJ's order.
The statute currently codified at § 8-42-103(1)(c)(I), C.R.S. (1995 Cum. Supp.), provides that "where it is determined that periodic disability benefits granted by the federal old-age, survivors, and disability insurance act are payable" to the claimant, temporary total disability benefits shall be reduced by one-half of the federal periodic benefits. (Emphasis added). The statute also provides that:
"Upon request of the insurer or employer, the employee shall apply for such federal periodic benefits and respond to requests from the insurer or employer as to the status of such application. Failure to comply with this section shall be cause for suspension of benefits."
Here, the following facts are undisputed. The claimant's spouse died in early 1990. As a result, the claimant was awarded "mother's benefits" in the amount of $380 per month by the Social Security Administration.
On August 15, 1990, the claimant suffered work-related injuries. The respondent admitted liability for temporary total disability benefits in the amount of $153.09 per week, or approximately $663 per month. The respondent requested that the claimant apply for Social Security disability insurance benefits (SSDI), and she was awarded SSDI in the amount of $411 per month commencing October 1991.
As a result of the SSDI award, and pursuant to § 8-42-103(1)(c)(I), the respondent reduced the claimant's temporary disability benefits by $47.42 per week. However, the SSDI award also rendered the claimant ineligible for the mother's benefits she had been receiving. The combined effect of these events resulted in the claimant receiving less total monthly income than she had previously received with the mother's benefits and temporary disability benefits. Consequently, the claimant withdrew her application for SSDI and obtained the reinstatement of mother's benefits. The respondent then petitioned to modify the claimant's temporary disability benefits based on the amount of SSDI that would be payable to the claimant if she had not withdrawn her application.
The ALJ determined that § 8-42-103(1)(c)(I) was enacted to avoid the duplication of benefits paid on account of the same disability. Because the claimant's receipt of mother's benefits was based upon the wage record of her deceased spouse, and the respondent did not contribute to those benefits, the ALJ determined that the "purpose of the offset was not met."
The ALJ also determined that the offset statute was enacted to provide a method by which the employer and the injured employee would both benefit. Specifically, the ALJ determined that under normal circumstances, an SSDI award increases the claimant's income because the claimant receives some workers' compensation benefits and full SSDI benefits. However, the ALJ determined that under the facts here, permitting the offset would defeat the purpose of the statute "by reducing the claimant's monthly income while at the same time providing a windfall" to the respondent. Therefore, the ALJ denied the request to permit the statutory offset.
We agree with the respondent that the fact that the mother's benefits and the claimant's temporary disability benefits do not constitute a "double recovery" for the same disability is not dispositive. Cf. L.E.L Construction v. Goode, 867 P.2d 875 (Colo. 1994); Engelbrecht v. Hartford Accident Indemnity Co., 680 P.2d 231 (Colo. 1984). Rather, the issue is whether, under § 8-42-102(1)(c)(I), the respondent is entitled reduce temporary disability benefits based on SSDI which is "payable" for the same disability.
It is true that under normal circumstances, the claimant will benefit from an award of SSDI. However, we perceive no basis under the language of the statute for avoiding the application of the offset where the claimant does not experience an economic gain from the award of SSDI.
The principles of statutory construction require that we construe statutes in such a manner as to further the legislative intent. Engelbrecht v. Hartford Accident Indemnity, supra. To discern the intent of the General Assembly, we must first examine the language of the statute. Ackerman v. Hilton's Mechanical Men, Inc., ___ P.2d ___ (Colo.App. No. 95CA1051, February 22, 1996). In so doing, words and phrases must be given their plain and ordinary meaning unless the result is absurd. L.E.L Construction v. Goode, supra. Furthermore, if the statutory language is clear an unambiguous, the interpretative rules of statute construction are inapplicable. Husson v. Meeker, 812 P.2d 731 (Colo.App. 1991).
Section 8-42-103(1)(c)(I) entitles the respondent to an offset "where it is determined" that SSDI is "payable" to the claimant. The American Heritage College Dictionary, Third Edition, (1993) defines the term "payable" to mean "requiring a payment to a particular person."
In Hurtado v. CF I Steel Corporation, 168 Colo. 37, 449 P.2d 819, 821 (1968), the Supreme Court held that in the predecessor statute, the phrase "when it is determined" referred to a "determination," either by the Social Security Administration or the fact-finding agency in the workers' compensation proceedings, that the claimant is eligible to receive SSDI. See § 81-12-1(4), C.R.S. 1965 (Perm Supp.). Therefore, as applied to § 8-42-103(1)(c)(I), the respondent is entitled to an offset where the Social Security Administration determines that a payment of SSDI is due the claimant.
Here, it is undisputed that the claimant is receiving a full award of temporary total disability benefits as a result of the August 1990 injury. It is also undisputed that the Social Security Administration determined that the claimant is entitled to SSDI as a result of the same disability. Further, the parties appear to concede that had the claimant not "withdrawn" her application, SSDI in the amount of $411 per month would be payable to the claimant. Consequently, the respondent is entitled to reduce its liability for temporary disability benefits by one-half of the SSDI "payable" the claimant, or $205.50 per month.
The fact that the claimant is no longer actually receiving SSDI does not support a contrary result. In Hurtado the claimant refused to apply for SSDI and apparently gave no explanation for his refusal. The Supreme Court held that the respondents' entitlement to an offset was not dependent on the claimant's actual receipt of SSDI. Rather, the Court concluded that where the claimant refuses to apply for SSDI the respondent is entitled to an offset pursuant to the amount of SSDI which would be paid if the claimant had applied. Consequently, Hurtado establishes that the offset statute applies even if there is no actual benefit to the claimant, and the result is a "windfall" for the employer.
In Hurtado the Court also stated that it would be "inequitable" to condone the claimant's refusal to "help himself," and "incidentally benefit his employer," by applying for SSDI. Hurtado v. CF I Steel Corp., 449 P.2d at 821. We recognize that the Supreme Court assumed an award of SSDI would have benefited both the claimant and the employer. However, insofar as Hurtado may be read as suggesting that "equitable" considerations may relieve the claimant of the duty to apply for SSDI, the subsequent statutory amendments are contrary to such an interpretation.
Hurtado was based upon § 81-12-1(4), C.R.S. (1963 Perm Supp.), which did not contain any specific language concerning the claimant's duty to apply for SSDI. In 1988 the statute [subsequently reenacted as § 8-43-103(1)(c)(I), C.R.S. (1990 Cum. Supp.)] was amended to expressly require the claimant to apply for SSDI, and provide that the failure to apply may be cause for the suspension of benefits. See 1988 Colo. Sess. Laws, ch. 49, § 8-51-101(1)(c)(I)at 379. Section 8-42-103(1)(c)(I) does not contain any language which limits the claimant's obligation to apply for SSDI to circumstances where both the employer and the claimant will achieve an overall economic gain.
To the contrary, had the General Assembly intended to create an exception to the offset statute, it could have expressly excluded its application to circumstances where the claimant does not accept SSDI or does not benefit from a determination that SSDI is payable. However, the General Assembly did not adopt any such language, and we may not read nonexistent provisions into the statute. See Kraus v. Artcraft Sign Company, 710 P.2d 480 (Colo. 1985).
IT IS THEREFORE ORDERED that the ALJ's order dated March 1, 1995, is reversed. The respondent may reduce its liability for temporary total disability benefits by $205.50 per month, based on the amount of SSDI that is payable to the claimant.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill WhitacreNOTICE
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed April 17, 1996 to the following parties:
Catarina Ihnen, 920 Gib Lane, Apt. D, Colorado Springs, CO 80909
Vicky Alexander, Western Forge, 4607 Forge Road, Colorado Springs, CO 80907
Jon C. Thomas, Esq., 1032 North Wahsatch Ave., Colorado Springs, CO 80903
(For the Claimant)
Carol Finely, Esq., 111 S. Tejon, #720, Colorado Springs, CO 80903
(For the Respondents)
BY: _______________________