Opinion
W.C. No. 3-882-477
October 24, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) insofar as it allowed an offset of liability for permanent total disability benefits by the claimant's receipt of retirement benefits. We affirm.
On review, the respondents concede that the claimant is permanently and totally disabled as a result of a 1987 injury during his employment at Littleton Electric, Inc. The sole issue is whether the ALJ correctly calculated the statutory offset applicable to the claimant's receipt of retirement benefits from the Eighth District Electrical Pension Fund (Pension Fund), which is a union retirement and disability plan financed by the employer.
Under former § 8-51-101(1)(d), C.R.S. (1986 Repl. Vol. 3B), which governs this claim, permanent total disability benefits shall be reduced where "periodic disability benefits are payable to an employee under the provisions of a pension plan financed in whole or in part by the employer." Myers v. State, 428 P.2d 83 (Colo. 1967). In State Penitentiary v. Toothaker, 832 P.2d 1009 (Colo.App. 1991) ( Toothaker) , the Court of Appeals held that § 8-51-101(1)(d) only applies to the portion of the claimant's pension benefits which are attributable to the industrial disability.
At the hearing on November 30, 1994, the parties stipulated to the following facts. In 1989, the claimant became eligible for regular retirement benefits in the amount of $ 762.04 per month. Commencing February 1990, the claimant was determined to be totally disabled by the Social Security Administration and was awarded Social Security disability benefits. As a result, the claimant's retirement was converted to a disability retirement and the claimant's retirement benefits were increased to $863.50 per month. The parties further stipulated that the claimant reached age 65 in October 1993. Tr. pp. 14, 16.
The ALJ found that under the terms of the Pension Fund, the claimant's retirement became a regular retirement in October 1993, when the claimant reached age 65. The ALJ also found that the claimant's industrial disability accounted for only $ 101.46 of the monthly retirement benefits paid between February 1, 1990 and September 30, 1993. Therefore, the ALJ granted an offset of $101.46 per month for that period, and denied an offset for retirement benefits paid to the claimant after September 1993.
Contrary to the respondents' arguments, there is substantial evidence to support the ALJ's findings of fact, and therefore, the findings must be upheld. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Ms. Younger, who is employed by the third-party administrator of the Pension Fund, testified that the Pension Fund follows the social security system. Tr. p. 23. Younger stated that under the terms of the Pension Fund, an employee is entitled to disability retirement benefits as long as the employee is under the age of 65 and is totally disabled as established by an award of Social Security disability benefits. Tr. pp. 22, 23, 26. Younger stated that when the employee reaches age 65, the retirement benefits continue regardless of the employee's disability, because at that time the employee is entitled to a normal retirement benefit in the same amount. Tr. pp. 22, 23, 25. Younger further testified that she changes the employee's pension status from disability to normal retirement when the employee reaches age 65, because the third-party administrator considers the benefits to "become regular retirement." Tr. pp. 24, 25.
The written pension plan states that disability retirement benefits are paid in the same amount as regular retirement benefits and are only available to an employee who has not reached age 65. Exhibit 1, p. 15. The plan also states that at age 65, the pension continues, "as long as [the employee] remains retired, even if he recovers from his disability." Exhibit 1, p. 16.
Under these circumstances, ALJ could and did infer that the Pension Fund precludes the claimant from receiving disability retirement benefits at age 65. The evidence also supports the ALJ's determination that the claimant's industrial disability only accounted for the increase in benefits between February 1990 to September 30, 1993. The respondents' contention that this evidence might also support contrary inferences is immaterial. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences).
Furthermore, the fact that the claimant was required to apply for Social Security disability benefits, and that the reclassification of his retirement benefits to a disability retirement was mandatory upon the award of Social Security disability benefits, is not dispositive. The ALJ determined that the reclassification to a disability retirement only increased the claimant's monthly benefit by $101.46. Therefore, we agree with the ALJ's conclusion that the statutory offset is limited to the increased benefit between February 1990 and September 30, 1993. See Setzer v. Ideal Basic Industries, Inc., W.C. No. 3-599-631, May 7, 1992.
Moreover, the ALJ's determinations reflect the proper interpretation of Toothaker. The injured worker in Toothaker was not eligible for a normal retirement benefit prior to age 65, but received Public Employee Retirement Act (PERA) disability benefits. Consequently, the court upheld our conclusion that the entire disability retirement benefit prior to age 65 was attributable to the industrial disability, and subject to an offset. At age 65, the injured worker's retirement benefit was based in part upon service credit provided on account of the industrial disability. Therefore, the Toothaker court held that the portion of the injured worker's retirement benefits at age 65 which were attributable to the industrial injury remained subject to an offset.
Unlike the facts in Toothaker, this claimant was eligible for a regular earned service retirement in 1989 independent of his work related disability. In other words, had the claimant not suffered the industrial disability, he was still entitled to retirement benefits of $762.04 per month. Consequently, the early retirement benefits were not duplicative of workers' compensation benefits, and no offset was required to prevent a "double recovery" by the claimant. Scriven v. Industrial Commission, 736 P.2d 414 (Colo.App. 1987). The ALJ also noted that the claimant's regular retirement benefit at age 65 did not include service credit provided on account of the industrial disability. Tr. p. 35; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). Therefore, the circumstances here are opposite to the facts in Toothaker which required an offset for retirement benefits received by after age 65.
IT IS THEREFORE ORDERED that the ALJ's order dated December 21, 1994, is affirmed.
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 October 24, 1995 to the following parties:
Kenneth F. Waechter, 5655 Park County Road, #72, Bailey, CO 80421
Littleton Electric, Inc., 5708 S. Rapp St., Littleton, CO 80210-1986
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq., (Interagency Mail)
Suzanne Harvey Lynch Esq., 3515 S. Tamarac Dr., Ste. 200, Denver, CO 80237 (For the Claimant)
BY: _______________________