Opinion
W.C. Nos. 3-897-090 4-106-954
February 8, 1996
FINAL ORDER
In these consolidated workers' compensation cases, the respondents seek review of a final order of Administrative Law Judge Erickson (ALJ), insofar as it denied the respondents' claim for an offset based on the claimant's alleged eligibility for Public Employees Retirement Association (PERA) benefits. We affirm.
The ALJ awarded the claimant permanent partial disability benefits for two separate industrial injuries. The ALJ also concluded that the respondents are not entitled to offset their liability pursuant to the statute currently codified at § 8-42-103(1)(d)(I), C.R.S. (1995 Cum. Supp.).
In support of the denial of the offset, the ALJ found that the claimant was allowed to withdraw his personal contributions to PERA, and that none of the monies returned to the claimant by PERA represent contributions made by the respondent-employer. Further, the ALJ found that the claimant's withdrawal of his PERA contribution means that the claimant has not, and will not, receive any PERA disability benefits.
Relying principally on Hurtado v. CFI Steel Corp., 168 Colo. 37, 449 P.2d 819 (1969), the respondents argue that the claimant was obliged to apply for PERA disability benefits. Further, the respondents argue that it is inequitable to permit the claimant to opt out of PERA, and thereby, refuse to "help himself and his employer." We reject this argument.
Section 8-42-103(1)(d)(I) permits respondents to offset their liability for workers' compensation disability benefits by "periodic disability benefits . . . payable to an employee under the provisions of a pension or disability plan financed in whole or in part by the employer." This statute applies to PERA disability payments. Myers v. State of Colorado, 162 Colo. 435, 428 P.2d 83 (1967). However, the offset is restricted to an "amount proportional to the employer's percentage of total contributions" to the pension or disability plan. Section 8-42-103(d)(I)(A), C.R.S. (1995 Cum. Supp.); Colorado Department of Highways v. Sparling, 821 P.2d 780 (Colo. 1991).
The purpose of this statutory scheme is to preclude a "double recovery" by the claimant where the employer has purchased workers' compensation insurance, and has also purchased, in whole or in part, a disability pension for the employee. Myers v. State of Colorado, supra; Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995), cert. granted on other issues, October 30, 1995. To the extent pension disability benefits are payable as a result of an employer's contribution, the offset is mandatory. Colorado Department of Highways v. Sparling, supra.
Applying these principles here, we conclude that the ALJ correctly denied the claim for an offset. First, as the ALJ noted, no disability benefits are payable to the claimant as a result of the PERA disability program. Instead, the claimant withdrew his contribution to PERA, and this rendered him ineligible for PERA benefits. Thus, there is no "double recovery" resulting from the injury.
Moreover, the claimant's withdrawal of his contribution relieved the respondent-employer of any obligation to contribute its share to the PERA program. Consequently, this is not a situation in which the employer has purchased both a disability plan and workers' compensation insurance.
In our view, Hurtado v. CFI Steel Corp., supra, does not constitute authority to the contrary. In that case, which involved Social Security disability benefits, the court held that it would be "inequitable under the circumstances" to deny a Social Security offset where the claimant refused to apply for Social Security benefits.
In Hurtado, the claimant was refusing to avail himself of social benefits available on account of his injury. These benefits were available regardless of the employer's contribution to Social Security. In contrast, the claimant's election to withdraw his PERA contribution means that there is no available fund of disability benefits. Rather, the effect of the withdrawal is to restore the situation to the s tatus quo ante, and neither the claimant, nor the respondent-employer, is treated inequitably by denying the offset.
IT IS THEREFORE ORDERED that the ALJ's order, dated April 24, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL 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 February 8, 1996 to the following parties:
Donald Rolfe, 683 Kalispell St., Aurora, CO 80011
Colorado Department of Public Safety, 700 Kipling, Lakewood, CO 80215
Legal Department, Colorado Compensation Insurance Authority — Interagency Mail
Subsequent Injury Fund — Interagency Mail
George T. Ashen, Esq. and Timothy Hicks, Esq., 1226 Bannock St., Denver, CO 80204
(For Claimant)
Raymond F. Callahan, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For Respondents)
James E. Martin, Esq., Office of the Attorney General, 1525 Sherman St., 5th floor, Denver,
CO 80203 (For SIF)
By: ______________________________