Opinion
W.C. No. 4-791-437.
August 10, 2011.
FINAL ORDER
The claimant and the employer both seek review of an order of Administrative Law Judge Stuber (ALJ) dated February 28, 2011 that determined the employer was entitled to an offset for 50 percent of the claimant's initial social security award, but denied the employer's request for an offset for the claimant's U.S. Marine Corps retirement benefits. We affirm.
The claimant served for a number of years in the U.S. Marines and then received a military retirement pension, funded solely by the United States military. In 2002 the claimant began full-time work for the employer until he began to receive Social Security retirement (SSI) benefits. The claimant then continued to work part-time for the employer. On April 23, 2009, the claimant suffered an admitted work injury while working for the employer. The ALJ determined that the claimant was permanently and totally disabled as a consequence of the admitted April 23, 2009 work injury. The ALJ granted the employer an entitlement to an offset for the SSI benefits, but denied the employer's request for an offset for the U.S Marine Corps retirement benefits.
I.
The employer argues that the ALJ erred in declining to offset the claimant's military retirement benefits against his permanent total disability benefits. We are not persuaded that the ALJ erred.
The ALJ denied the request for offset under § 8-42-103(1)(c)(11.5). Citing Spanish Peaks Mental Health Center v. Huffaker, 928 P.2d 741 (Colo. App. 1996), the ALJ determined that since the "employer" that contributed to the pension was the United States military, the current employer was not entitled to an offset for that pension.
In Spanish Peaks, the employer sought to offset disability retirement benefits the claimant received from the Public Employees' Retirement Association (PERA) against the claimant's workers' compensation benefits. The workers' compensation employer did not contribute to the PERA pension fund. The court denied the offset, noting that the intent of the offset provision is to prevent an injured employee from receiving double disability benefits, i.e., workers' compensation and a disability pension, both financed by the same employer. The court held that because the offset was applicable only for an employer who has contributed to both sources of payments and it was acknowledged that the employer had not contributed to PERA, no offset was available.
The employer seeks to distinguish Spanish Peaks Mental Health Center on the ground that it dealt with § 8-42-103(1)(d)(I), rather than § 8-42-103(1)(c)(II.5), which the employer relies upon here. Section 8-42-103(1)(d)(I) provides as follows:
In cases where it is determined that periodic disability benefits are payable to an employee under a pension or disability plan financed in whole or in part by the employer, hereinafter called `employer pension or disability plan', the aggregate benefits payable for temporary total disability, temporary partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to the employer pension or disability plan benefits, with the following limitations. . . .(Emphasis added).
Section § 8-42-103(1)(c)(II.5) provides:
In cases where an employer does not participate in federal old-age, survivors, and disability insurance, and it is determined that employer-paid retirement benefits are payable to an individual and the individual's dependents, the aggregate benefits payable for permanent total disability pursuant to this section shall be reduced, but not below zero by an amount determined as a percentage of the employer-paid retirement benefits, said percentage to be determined by a weighted average of the employer's contributions during the period of covered employment divided by the total contributions during the period of covered employment. (Emphasis added).
We see no principled distinction between the court's reasoning that would apply to offsets for an "employee under a pension or disability plan financed in whole or in part by the employer" under § 8-42-103(1)(d)(I) and "employer-paid retirement benefits" under § 8-42-103(1)(c)(II.5). Therefore, we are bound by the court's determination in Spanish Peaks Mental Health Center and apply it here to affirm the ALJ's determination. See also City County of Denver v. Industrial Claim Appeals Office, 892 P.2d 429 (Colo.App. 1994) (under § 8-42-103(1)(e), the employer was not entitled to offset veterans' disability benefits paid to claimant.
The employer relies on Culver v. Ace Elec. 971 P.2d 641 (Colo. 1999). In that case, the court held that the offset provision of the Workers' Compensation Act reduces periodic permanent total disability payments when social security retirement benefits are also payable, regardless of whether social security benefits are payable prior to or after the industrial injury. However the Culver court, in contrast to the present case, dealt with the situation where the offset provision operated to reduce the periodic payments otherwise payable to the injured permanently and totally disabled worker if the worker is also eligible to receive social security benefits for the same period of time. The Culver court recognized that prevention of duplication of benefits serves a legitimate governmental purpose if the two sets of benefits being coordinated can legitimately be placed in a common pool of benefits. The Culver court determined that the legislature had placed social security retirement benefits and permanent total disability benefits in a common pool of wage loss compensation benefits for purposes of an offset provision.
We acknowledge the line of cases, such as Culver, where courts have found that workers' compensation statutory benefits generally should be coordinated with other legislated social welfare wage loss benefits, such as unemployment and social security benefits, to prevent a double recovery for one wage loss from one injury. However, in our view the present case does not invoke the need for coordination of two social welfare wage loss benefit statutes. This distinction is consistent with the court's decision in Spanish Peaks Mental Health Center, where the court distinguished cases in which there were benefits from two social welfare wage loss benefits within the same common pool of wage loss benefits and cases in which there was a separate employer-paid disability pension benefit plan not contributed to by the employer seeking to offset against workers compensation benefits. In our view, the claimant's military pension is not in the same common pool of social welfare wage loss benefits that must be coordinated with the claimant's workers' compensation benefits.
The statutory offset here concerns the General Assembly's limitation of circumstances in which employer-paid disability pension benefits should be offset against workers' compensation benefits funded by the same employer. Because it was acknowledged that the employer here did not contribute to the claimant's military pension, it follows that no offset is available.
II.
The claimant argues that § 8-42-103 clearly limits an offset to those benefits to which the employer has contributed. Since the employer here never contributed to the claimant's SSI benefits, the claimant argues the employer should not be entitled to reduce its obligation to pay permanent total disability benefits. The claimant relies on Spanish Peaks Mental Health Center v. Huffaker, supra. We disagree.
The Spanish Peaks court, citing L.E.L. Const. v. Goode, 867 P.2d 875 (Colo. 1994), determined that workmen's compensation, unemployment compensation, nonoccupational sickness and disability insurance, and old age and survivors' insurance are all part of a system based upon a common principle and should be coordinated to prevent double recovery for one wage loss from one injury. Spanish Peaks Mental Health Center, 928 P.2d at 744. Thus, we read Spanish Peaks Mental Health Center as allowing an SSI offset from permanent total disability benefits in the present case.
In our view, Culver v. Ace Elec, 952 P.2d 1200 (Colo. App. 1997), is dispositive of the present issue and the ALJ was correct in relying on it. In Culver, the claimant began receiving social security retirement benefits at age 62, which was two years prior to the industrial injury. The Culver court determined that under the plain language of the statute, the offset may be taken for social security retirement benefits, even though retirement benefits are not designed to compensate a claimant for an industrial injury. See also Hillery v. Three Aces, LLC d/b/a Ace Hardware, W.C. 4-755-808 (January 14, 2011) (citing Culver for proposition that General Assembly chose to place social security retirement benefits and permanent total disability benefits into same pool of benefits; thus avoidance of double recovery achieved by § 8-42-103(1)(c)(II), which deducts value of social security old age benefits from award for workers' compensation benefits). There is no material difference in this case.
The claimant nevertheless argues that the Colorado legislature, by recently enacting Senate Bill 09-168, has recognized the hardship that is created by allowing employers to recoup overpayments created by social security benefit awards and modified § 8-43-113.5(b.5). The amendment provides that, after the filing of a final admission of liability, any attempt to recover an overpayment shall be asserted within one year after the time the requestor knew of the existence of the overpayment. Colo. Sess. Laws 2009, Ch. 184 at 806. The claimant argues that this section is procedural in nature and the ALJ erred in awarding any offset because the employer made no effort to assert any overpayment based on the claimant's receipt of social security benefits for well in excess of one year after the enactment of § 8-43-113.5(b.5). However, we note that the legislature specifically provided that the provisions of Senate Bill 09-168 would apply to workers' compensation claims filed on or after the applicable effective date of the act, which was April 22, 2009. The legislature here expressly prescribed the statute's proper reach; therefore, resort to the rules of statutory construction to ascertain the statute's temporal scope is unnecessary. Craig v. Eberly, 164 F.3d 490, 494 (10th Cir. 1998). The claim here was filed before the effective date of Senate Bill 09-168, and therefore it does not apply.
The claimant also argues that under § 8-42-102(3) C.R.S., the ALJ has discretion to compute the claimant's average weekly wage in any manner that will fairly determine the claimant's wage. The claimant contends that the claimant's income received from the Social Security Administration should have been considered in the calculation of his temporary disability rate. Therefore, the claimant requests that we remand the matter for further findings and direct the ALJ to utilize the discretionary portion of § 8-42-102(3) to re-calculate the claimant's wage before permitting the social security offset.
However, we agree with the employer that the argument was not raised by the claimant before the ALJ. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987). Therefore, we shall not consider it for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994).
As we understand the claimant's next argument, he contends that the social security offset provisions of the Workers' Compensation Act are in violation of the equal protection guarantees of the federal and state constitutions because they single out persons over the age of 62 for disparate treatment. We lack jurisdiction to address the claimant's facial constitutional challenges to the Act. 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). Furthermore, insofar as the claimant may be understood as asserting both "facial" and "as applied" challenges to the offset provisions of the Act, the arguments supporting the "as applied" challenge are so intertwined with the facial challenge that we do not perceive how we can consider one without passing on the other.
The claimant further generally argues that to allow the offset places an unnecessary onerous burden on persons over the age of 62. This is a matter for the General Assembly and presents us with no grounds upon which the order of the ALJ's order may be disturbed.
IT IS THEREFORE ORDERED that the ALJ's order dated February 28, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
John D. Baird
____________________________________
Dona Rhodes
ROBERT ZERBA, 56 BELLA SPRINGS VIEW #422, COLORADO SPRINGS, CO, (Claimant).
STEVEN U. MULLENS, PC, Attn: PATTIE J. RAGLAND, ESQ., COLORADO SPRINGS, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: MARGARET D. KECK, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
SEDGWICK CMS, Attn: MS SHARMIE JENSEN, LEXINGTON, KY, (Other Party).