Opinion
W.C. Nos. 3-953-960, 4-013-639
February 18, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ), which allowed an offset of permanent total disability benefits by 59.7 percent of the claimant's disability retirement benefits from the Public Employee Retirement Association of Colorado (PERA). We affirm.
The claimant was awarded permanent total disability benefits as a result of a 1989 industrial injury. The claimant also receives PERA disability retirement benefits.
Former § 8-51-101(1)(d) (I), C.R.S. (1989 Cum. Supp.), which governs this claim, provides that where "periodic disability benefits are payable to an employee under the provisions of a pension or disability plan financed in whole or in part by the employer," permanent total disability benefits are subject to a reduction. Section 8-51-101(1)(d)(I)(A) provides that the reduction may be made "only in the amount proportional to the employer's percentage of total contributions to the employer pension or disability plan."
The statute further provides that the ALJ is not required to determine the amount of the reduction with mathematical certainty. Rather, the ALJ to determine "as nearly as practical" the employer's contributions. See Walker v. City and County of Denver, 870 P.2d 1269 (Colo.App. 1994). As stated in Walker, the General Assembly's use of the term "practical" reflects the recognition that in some instances it is not feasible to calculate the employer's exact contribution to the pension plan. 870 P.2d at 1271; Bailey v. Lakewood Fire Protection District, 44 Colo. App. 463, 618 P.2d 716 (1980).
Here, the claimant sought to establish the employer's contribution through the expert testimony of Dr. Patricia Pacey (Dr. Pacey). The employer and its insurer, the Colorado Compensation Insurance Authority (collectively the CCIA respondents) presented expert testimony from Mr. David LeSueur (Mr. LeSueur), who is an actuary. Mr. LeSueur calculated the employer's total contributions to the PERA pension plan as 59.7 percent. Dr. Pacey opined that Mr. LeSueur overstated the employer's contributions by including the employer's payments to the cost of living stabilization fund, the health care fund, and unfunded liabilities. Dr. Pacey also opined that the proper calculation of the employer's total contributions should reflect the distinction between the employer's cost of service retirement benefits and disability retirement benefits, because the claimant is not eligible for federal social security disability benefits.
However, the ALJ was persuaded by the testimony of Mr. LeSueur. The ALJ found that Mr. LeSueur's method of calculating the employer's total contributions "more practically" calculates the employer's total contributions to the PERA pension plan. Therefore, the ALJ granted an offset equal to 59.7 percent of the claimant's PERA disability benefits.
On review, the claimant contends that the method utilized by Dr. Pacey results in a more accurate measure of the employer's contributions. Therefore, the claimant argues that the ALJ erred in rejecting Dr. Pacey's opinions. The claimant also contends that the offset granted by the ALJ was unfair to the claimant because it requires the claimant to "bear greater risks and more of the cost of his benefit." Further, the claimant argues that, as applied in this case, the offset statute violates guarantees of equal protection of the laws under the United States and Colorado Constitutions. We reject these arguments.
I.
It is clear that the claimant is dissatisfied with the ALJ's credibility determinations. However, it is the ALJ's sole prerogative to evaluate the sufficiency, credibility and probative value of conflicting evidence including expert testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). We may not interfere with the ALJ's credibility determinations unless the testimony he credited is rebutted by such hard, certain evidence, that it would be error as a matter of law to believe the testimony which the ALJ credited. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Here, there was direct conflict between Dr. Pacey and Mr. LeSueur concerning the proper method for determining the employer's contributions to the PERA pension plan. The ALJ resolved the conflict in favor of Mr. LeSueur. In so doing, the ALJ found that there was no statutory support for Dr. Pacey's testimony concerning the pertinent factors in determining the employer's contributions. Further, the ALJ found that the "proposed scheme" by Dr. Pacey created an unnecessarily complex method for calculating the offset which is neither "required by nor even indicated the statutory language." We conclude that the ALJ's determinations are supported by substantial evidence in the record and the applicable law. Therefore, we cannot say as a matter of law that the ALJ erred in failing to credit Dr. Pacey's testimony. Halliburton Services v. Miller, supra.
The principles of statutory construction require that statutes be construed in such manner as to further the legislative intent for which they were enacted. Engelbrecht v. Hartford Accident Indemnity Co., 680 P.2d 231 (Colo. 1984). To discern the legislative intent words and phrases should be given effect according their plain and ordinary meaning, unless the result is absurd. Spanish Peaks Mental Health Center v. Huffaker, 928 P.2d 741 (Colo.App. 1996).
As noted by the ALJ, the plain language of former § 8-51-101(1)(d)(I) requires that the offset to be based upon the employer's "total contributions," and does not expressly exclude the employer's contributions for "unfunded liabilities" or "cost of living stabilization."
Furthermore, there is substantial evidence in the record that there are no separate accounts for unfunded liabilities or cost of living increases. Rather, the evidence reflects that these are "accounting allocations" within the same PERA fund. (Tr. May 14, 1996, pp. 30-31, 41; May 21, 1996, pp. 44, 46).
Similarly, the applicable statute does not indicate a distinction between the employer's cost of providing disability retirement benefits and service retirement benefits. To the contrary, Dr. Pacey admitted there is only one pension fund, and that there are no separate disability retirement and service retirement pension funds. (Tr. May 21, 1996, p. 99).
We also agree with the ALJ that nothing in the PERA offset statute suggests that the calculation of the employer's PERA contributions should include consideration of the fact that, under former § 8-51-101(1)(c)(IV), C.R.S. (1989 Cum. Supp.) recipients of federal social security disability benefits who are awarded permanent total disability benefits for an injury which occurred prior to age 45 are not subject to the offset.
In any case, the ALJ found that there was no practical way to exclude some or all of the employer's payments for unfunded liabilities and cost of living increases, and this finding is supported by Mr. LeSueur's testimony. (Tr. May 14, 1996, p. 52). The claimant's remaining arguments have been considered and are not persuasive.
II.
Next, the claimant contends that Mr. LeSueur's testimony does not constitute substantial evidence to support the ALJ's order, because Mr. LeSueur offered conflicting opinions concerning the precise measure of the employer's total contributions to the PERA pension. We disagree.
Inconsistencies, contradictory evidence and incomplete testimony are not uncommon to the adversary process. West v. Aranda, (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication). Insofar as Mr. LeSueur's testimony contained internal inconsistencies concerning the precise percentage of the employer's contributions to the PERA pension fund, it was the ALJ's sole prerogative to resolve the inconsistencies and credit that part of Mr. LeSueur's testimony which he found persuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Admittedly, when asked to consider various alternative methods for calculating the employer's total contributions, Mr. LeSueur rendered conflicting opinions concerning the percentage of contributions by the employer. The ALJ resolved the conflict by crediting the method which resulted in Mr. LeSueur's opinion that the employer's contributions equal 59.7 percent.
We also note that Mr. LeSueur's calculations did not include the claimant's receipt of benefits from the health care fund. (Tr. May 21, 1996, pp. 36, 39). Thus, Mr. LeSueur's computations are consistent with the ALJ's finding that the employer's health care fund payments are not properly included in the offset.
III.
The claimant also contends that the offset statute, as interpreted by the ALJ and as applied to the facts of this claim, violates guarantees of equal protection of the laws under the United States and Colorado constitutions. Specifically, the claimant contends that the statute creates dissimilar treatment of similarly situated individuals. Furthermore, the claimant contends that there is not rational relationship to a legitimate government interest for this dissimilar treatment. The claimant's argument is based upon former § 8-51-101(1)(c)(IV), which provides that there is no offset where the claimant is receiving federal social security disability benefits and permanent total disability benefits for an industrial injury which occurred prior to age 45. In contrast, an injured worker, such as the claimant, who receives PERA disability retirement benefits and permanent total disability benefits for an injury which occurred prior to age 45 is subject to the offset.
The claimant's argument presents a facial challenge to the constitutionality of former § 8-51-101. However, we have no authority to consider the claimant's constitutional challenge. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995).
To the extent that the claimant is asserting an "as applied" challenge to the statute, we recognize that administrative agencies have the authority to determine whether "an otherwise constitutional statute has been unconstitutionally applied." Horrell v. Department of Administration, 861 P.2d 1194, 1196 (Colo. 1993). However, the claimant's "facial" and "as applied" challenges to the offset statute are so intertwined that we cannot consider the "as applied" challenge without addressing the "facial" constitutionality of the statute. To do so would "violate the principle of separation of powers, and cause us to engage in constitutional decision-making beyond our area of expertise." See Denver Center for Performing Arts v. Briggs, 696 P.2d 299, 305 (Colo. 1985) (administrative rulings concerning "facial" challenges to statutes will not be considered "authoritative" on judicial review). Therefore, we decline to consider the claimant's argument that statute "as applied" to him was a violation of equal protection guarantees.
IT THEREFORE ORDERED that the ALJ's order dated July 8, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
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. (1996 Cum. Supp.).
Copies of this decision were mailed February 18, 1997 to the following parties:
Walter L. Johnson, 6120 Gray St., Arvada, CO 80003
Colorado Department of Social Services, 1575 Sherman St., Denver, CO 80203
Colorado Compensation Insurance Authority, Attn: Michael J. Steiner, Esq. (Interagency Mail)
Michael Serruto, Esq., Office of Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
David R. DiGiacomo, Esq., Gerald H. Jaggers, Esq. Douglas J. Perko, Esq., 5460 Ward Rd., Ste. 300, Arvada, CO 80002 (For the Claimant)
BY: _______________________