Opinion
W.C. No. 4-265-783
October 24, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) insofar as the ALJ denied a request to offset their liability for temporary total disability benefits, by the amount of unemployment insurance benefits received by the claimant, as provided in § 8-42-103(1)(f), C.R.S. (1996 Cum. Supp.). The respondents contend that the ALJ erroneously relied upon Axelson v. Pace Membership Warehouse, ___ P.2d ___ (Colo.App. No. 95CA0561, February 8, 1996), cert. granted September 3, 1996, to deny the offset. We disagree, and therefore, affirm.
Insofar as pertinent, § 8-42-103(1)(f) provides:
"[W]here it is determined that unemployment insurance benefits are payable to an employee, compensation for temporary disability shall be reduced, but not below zero, by the amount of unemployment insurance benefits received . . . ."
However, in Axelson v. Pace Membership Warehouse, supra, the Court of Appeals concluded that § 8-42-103(1)(f) creates disparate treatment between injured workers who receive unemployment benefits while their entitlement to temporary disability benefits is litigated, and are retroactively awarded such benefits for a concurrent period of time, and those workers who do not need to litigate their entitlement to temporary disability benefits and therefore, do not receive unemployment benefits during their period of temporary disability. This is true because workers who must litigate their entitlement to temporary disability and receive retroactive awards, are subject to the offset. Conversely, workers who do not need to litigate can receive their full entitlement of temporary disability benefits, without jeopardizing their base year of entitlement to unemployment benefits for any periods of unemployment after they reach maximum medical improvement (MMI), and are no longer entitled to temporary disability benefits. See § 8-73-112, C.R.S. (1995 Cum. Supp.); Axelson v. Pace Membership Warehouse, supra; cf. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995) (MMI terminates temporary disability benefits and triggers the right, if any, to permanent disability benefits). Furthermore, the court concluded that this disparate treatment is not rationally related to achieving the state's interest of reducing the cost of workers' compensation and preventing a double recovery by the claimant. Consequently, the court held that § 8-42-103(1)(f), as applied to workers who rely on unemployment benefits while successfully litigating their entitlement to retroactive temporary disability benefits, violates constitutional guarantees to equal protection.
On review, the respondents contend that Axelson does not apply to the facts of this claim. Therefore, the respondents argue that the ALJ erred in failing to allow them to assert an offset against the claimant's unemployment insurance benefits. Alternatively, the respondents contend that Axelson was wrongly decided, and seek to preserve this argument pending the Supreme Court's certiorari review of Axelson. We reject these arguments.
As the respondents recognize, we and the ALJ are bound by published decisions from the Court of Appeals. C.A.R. 35(f). Therefore, unless modified or reversed by the Supreme Court, Axelson represents the current state of the law concerning the application of § 8-42-103(1)(f), and must be upheld.
Furthermore, we perceive no appreciable difference between the circumstances in Axelson and the facts presented in this claim. The claimant in Axelson suffered a compensable injury in June 1990. The following month, the claimant was separated from her employment and filed a claim for temporary disability benefits. The employer contested the claim for temporary disability benefits. Later, an ALJ awarded the claimant temporary total disability benefits from July 1990 to December 1992, when the claimant reached MMI. The award included benefits during a period in which the claimant applied for, and received unemployment insurance benefits. Consequently, the employer sought to offset the award by the claimant's receipt of unemployment insurance benefits.
In view of the fact that no offset would have been available to the employer had the claimant not sought unemployment insurance benefits until after December 1992, the Axelson court held that it was arbitrary and capricious to deprive the claimant of unemployment insurance benefits just because the employer decided to contest the claim for temporary disability benefits, and the claimant was required to rely on the unemployment insurance benefits as a means of "subsistence" during a period in which she was later determined to be temporarily totally disabled. In reaching this conclusion, the court stated:
"[S]imply because of the timing of their claims, an offset of the TTD benefits by the unemployment insurance already paid, in effect, converts the pre-order unemployment benefits into TTD benefits. When this occurs, as it did here, the employer and its workers' compensation insurance carrier receive credit for benefits paid at the expense of the injured worker."
Similar to the facts in Axelson, this claim involves the receipt of unemployment insurance benefits during a period in which the claimant was later determined to be temporarily disabled. In particular, the ALJ found that the claimant suffered a compensable injury in July 1995. Dr. Jensen released the claimant to return to regular employment on a trial basis commencing November 27. However, the claimant was separated from her employment with the respondent-employer and was unable to find other employment. Further, the ALJ determined that on December 22, 1995, Dr. Jensen rescinded the November 27 release, and reported that the claimant was unable to work until she had surgery for DeQuervain's tenosynovitis. Thereafter, the claimant applied for temporary disability benefits, which the respondents denied. The claimant also applied for and received unemployment insurance benefits.
The respondents do not dispute the ALJ's factual determinations. In any case, the ALJ's findings are supported by substantial evidence in the record, and therefore, must be upheld. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). The ALJ's findings also support his award of temporary total disability benefits retroactive to November 27, 1995.
Moreover, the ALJ's findings of fact reflect his determination that here, as in Axelson, the claimant applied for, and received unemployment insurance benefits as a source of subsistence, during a period of "temporary disability." Consequently, some period of the claimant's entitlement to unemployment benefits was jeopardized, and we agree with the ALJ that Axelson is applicable. Contrary to the respondents' argument, nothing in Axelson suggests that the holding is limited to cases where a claimant remains unemployed after reaching MMI, and is actually deprived of a portion of her unemployment entitlement period as a result of the need to collect unemployment while successfully litigating entitlement to retroactive temporary disability benefits. Therefore, we decline to infer that such a restriction was intended.
IT IS THEREFORE ORDERED that the ALJ's order dated May 2, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona HalseyNOTICE
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 October 24, 1996 to the following parties:
Surang Unaboot, 2910 North Ave., #39B, Grand Junction, CO 81504
Mountain Smith, Inc., 18301 W. Colfax Ave., Bldg. P, Golden, CO 80401-4834
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun (Interagency Mail)
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
BY: _______________________