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Koch Industries12/7/1995
In this workers' compensation proceeding, petitioners, Koch Industries, Inc., and Pacific Employers Insurance Company, seek review of a final order of the Industrial Claim Appeals Panel (Panel) which determined that the death benefits payable to Maria De Pena, wife of the deceased worker, Luis A. Pena, were not subject to an offset for social security payments received by decedent's sons from a prior marriage. We affirm.
In December 1990, a final order determined that decedent had sustained an injury during the course and scope of his employment. The death benefit of $371.21 per week was apportioned 40% to decedent's widow, and 30% each to his two sons from a prior marriage. However, each of decedent's sons also received $811 per month in federal social security benefits. Therefore, pursuant to Knight v. Department of Natural Resources, 689 P.2d 733 (Colo. App. 1984), petitioners were granted an offset for the aggregate amount of $1,622 against the workers' compensation benefits until the social security benefits ceased to be paid to either child. Thus, no workers' compensation benefits were actually received by the widow or the sons.
In February 1994, decedent's widow filed a petition to reopen based upon an alleged mistake of law. She asserted that under Hoffman v. Hoffman, 872 P.2d 1367 (Colo. App. 1994), the offset previously allowed for the social security benefits paid to decedent's sons from a prior marriage was in error.
Although the Administrative Law Judge (ALJ) determined that a mistake of law had been made in the December 1990 order, the ALJ concluded that a reopening was not appropriate because the widow had not appealed the prior order. Nevertheless, the ALJ granted the widow relief from the date of his decision on the belief that such a change could be made without a reopening. Hence, under this new order, there was no longer to be an offset for the benefits paid to decedent's other dependents, and thus, the widow began to receive $148.48 per week in workers' compensation death benefits beginning October 24, 1994.
In affirming this latter order, the Panel determined that the ALJ should have reopened the case and granted the widow both retroactive and prospective relief because Hoffman constituted a new rule of law. However, because the widow had not petitioned for review of the ALJ's order, the Panel affirmed that order, which granted only prospective relief. In doing so, the Panel concluded that, under C.A.R. 35(f), it was required to follow the current statement of the law as set forth in Hoffman.
I.
Petitioners first contend that the Knight decision correctly interpreted the language of the statute now codified at § 8-42-114, C.R.S. (1995 Cum. Supp.) and, consequently, that the Hoffman decision was incorrect. We are not persuaded.
Section 8-42-114 provides that:
In cases where it is determined that periodic death benefits granted by the federal old age, survivors, and disability insurance act or . . . a workers' compensation act of the federal government are payable to an individual and the individual's dependents, the aggregate benefits payable for death pursuant to this section shall be reduced, but not below zero, by an amount equal to fifty percent of such periodic benefits.
(Emphasis added)
In Knight v. Department of Natural Resources, supra, and Hoffman v. Hoffman, supra, different divisions of this court addressed application of the statute now found at § 8-42-114 to the circumstance when workers' compensation death benefits were p
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