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Culver v. Ace Electric9/18/1997
In this workers' compensation case, Leonard O. Culver (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) which granted his employer, Ace Electric; its insurer, the Colorado Compensation Insurance Authority (CCIA); and the Subsequent Injury Fund (SIF) an offset for social security retirement benefits he received. Claimant also contends that the statute authorizing the offset, § 8-42-103(1)(c)(II), C.R.S. 1997, violates the equal protection guarantees of the Fourteenth Amendment and Colo. Const. art. II, § 25. In a cross-appeal, the SIF seeks review of that portion of the Panel's order to the extent that it required the SIF to pay a portion of claimant's permanent total disability (PTD) benefits. We affirm the Panel's order and rule that the statute is constitutional.
Claimant sustained an admitted industrial injury in 1992 while working for Ace Electric. Finding that claimant was permanently and totally disabled, the Administrative Law Judge (ALJ) concluded that 60% of the disability was attributable to the 1992 injury, and the remaining 40% was attributable to an industrial injury claimant sustained in 1981 while baling hay on his farm. Accordingly, the CCIA was held liable for 60% of the PTD benefits, and the SIF was held liable for 40% of the benefits.
Because claimant began receiving social security retirement benefits at age 62, which was two years prior to the 1992 injury, the CCIA and SIF requested an offset pursuant to § 8-42-103(1)(c)(II)(A), C.R.S. 1997. The ALJ denied the offset on the ground that the statute did not apply to the retirement benefits in this case.
The Panel affirmed the apportionment of liability to the SIF. However, it modified the ALJ's order to permit an off set for the social security retirement benefits received.
I. APPLICATION OF THE OFFSET STATUTE
A.
Arguing that the purpose of the offset statute is to prevent duplication of benefits, claimant contends first that the offset should not be allowed because there is no double recovery here. Claimant notes that he was receiving both social security retirement benefits and wages before the 1992 injury, and that the retirement benefits were received independent of any industrial disability. Therefore, he argues that the offset in effect penalizes him because not only does he receive just two-thirds of his wages in the form of PTD benefits, but his PTD benefits are then reduced by one-half the amount of his retirement benefits. We disagree.
Section 8-42-103(1)(c)(II), the offset provision governing retirement benefits, provides, in pertinent part:
In cases where it is determined that periodic benefits granted by the federal old-age, survivors, and disability insurance act or employer-paid retirement benefits are payable to an individual and the individual's dependents when the individual reaches the age of sixty-five years, the aggregate benefits payable for permanent total disability pursuant to this section shall be reduced, but not below zero:
(A) By an amount nearly as practical to one-half such federal benefits . . . .
This section contains no language limiting the application of the offset only to those circumstances in which both types of benefits compensate wage loss for an industrial disability. See generally Ihnen v. Western Forge, 936 P.2d 634 (Colo. App. 1997) (rejecting claimant's contention that the offset authorized by § 8-42-103(1)(c)(I), C.R.S. 1997, for social security disability benefits should not be applied because she was entitled to social security mother's benefits prior to, and independent of, the work-related injury, yet could not concurrently
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