 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
U.S. West Communications Inc. v. Industrial Claim Appeals Office3/18/1999
ORDER AFFIRMED
Division A
Erickson* and Sternberg*, JJ., concur
*Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and ยง24-51-1105, C.R.S. 1998.
In this workers' compensation case, the issue raised by U.S. West Communications, Inc., (employer) is whether the 50% offset for Social Security Disability Insurance (SSDI) benefits should be taken against temporary total disability (TTD) and permanent partial disability (PPD) in their aggregate amount or whether the offset may be taken against each benefit separately. The Industrial Claim Appeals Office (Panel) held that the SSDI offset should be taken against the aggregate amount of the TTD and PPD benefits payable to James E. Harper (claimant). We affirm.
Claimant sustained two compensable back injuries while working for employer, one in 1989 and the other in 1993. The parties stipulated that claimant is permanently and totally disabled as a result of these two injuries.
In September 1993, claimant began receiving SSDI benefits, and during the eight-month period from September 1993 to May 1994, claimant was also entitled to concurrent PPD benefits on the first claim and TTD benefits on the second. The parties stipulated that the statutory offset to which employer was entitled for the SSDI benefits is $129.54 per week. However, employer asserted entitlement to one weekly offset of $129.54 against claimant's PPD benefits, and another weekly offset in the same amount against claimant's TTD benefits.
The Administrative Law Judge (ALJ) disagreed and determined that employer could take only one offset of $129.54 against the total amount of the combined PPD and TTD benefits. The Panel affirmed.
In this appeal, employer again contends that it is entitled to take one offset against the PPD benefits and another against the TTD benefits. It argues that the offset statute does not provide that, if benefits are paid concurrently for more than one injury, the offset is limited to benefits for only one injury. Based on our interpretation of the statute, we disagree.
Section 8-42-103(1)(c)(I), C.R.S. 1998, the offset provision governing SSDI benefits, provides, in pertinent part:
"In cases where it is determined that periodic disability benefits granted by the federal old-age, survivors, and disability insurance act are payable to an individual and said individual's dependents, the aggregate benefits payable for temporary total disability, temporary partial disability, permanent 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 one-half such federal periodic benefits . . . ." (emphasis added)
The phrase "aggregate benefits payable" was added to clarify that the offset applies to the total amount paid. See City of Thornton v. Teeter, 37 Colo. App. 427, 548 P.2d 133 (1976).
The phrase replaced language that provided that the "weekly benefit payable" was subject to the offset. In construing that predecessor language, the supreme court declined to engage in judicial legislation to extend this reduction to include the total benefits. Industrial Commission v. Rowe, 162 Colo. 248, 425 P.2d 274 (1967). Rather than the court making the change, the General Assembly, in response to Rowe, amended the phrase to "aggregate benefits payable." See Yates v. Sinton Dairy, 883 P.2d 562 (Colo. App. 1994). Further, the statutory use of the conjunctive "and" in describing the benefits to be aggregated indicates the various classes of benefits that are to be combined for the purpose of t
Page 1 2 Colorado Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|