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Cericalo v. Industrial Claim Appeals Office of the State of Colorado4/7/2005
ORDER AFFIRMED
Rothenberg and Russel, JJ., concur
In this unemployment benefits case, petitioner, Carmen N. Cericalo (claimant), seeks review of a final order of the Industrial Claim Appeals Office (Panel). At issue in this appeal is the propriety of the action taken by the Division of Employment reducing or offsetting claimant's unemployment benefits by half the amount of his Social Security Disability Insurance (SSDI) benefits, rendering him ineligible to receive any unemployment benefits pursuant to § 8-73-110(3)(a)(I)(A), C.R.S. 2004. Because we conclude the offset was proper, we affirm.
Section 8-73-110(3)(a)(I)(A) provides, in pertinent part, that an individual's weekly amount of unemployment benefits "shall be reduced (but not below zero) by . . . ifty percent of the prorated weekly amount of a primary insurance benefit under Title II of the federal 'Social Security Act' that has been contributed to by a base period employer, because the employee has made contributions to federal social security ." Thus, pursuant to § 8-73-110(3)(a)(I)(A), the unemployment benefits otherwise payable to a claimant must be reduced or offset by half of the prorated amount of such federal social security benefits received by that claimant.
The relevant facts are not in dispute. Claimant suffers complications of diabetes, including blindness and other physical disabilities, and has been receiving SSDI benefits for a number of years. After claimant was laid off from a part-time job of eight hours per week he obtained to supplement this income, he sought and received unemployment benefits attributable to that employment. The Division of Employment later learned that claimant was receiving SSDI benefits, and a deputy ruled that, because of the offset, claimant could not be paid unemployment benefits pursuant to § 8-73-110(3)(a)(I)(A).
At a hearing, claimant confirmed that he was receiving $1,347 per month in SSDI benefits and that such benefits were based on previous contributions to the federal Social Security system from working and were not based on financial need. Claimant also testified that the Social Security Administration allowed him to earn up to $1,200 per month without affecting his receipt of SSDI benefits. Claimant's monthly SSDI benefit amounts to $311 per week when prorated, and because half that amount exceeded his weekly amount of $108 in unemployment benefits, claimant was ineligible to receive any unemployment benefits based on the application of the offset requirements of § 8-73-110(3)(a)(I)(A).
The hearing officer found that claimant's SSDI benefits were paid under Title II of the federal Social Security Act and were contributed to by claimant and his base period employer. Consequently, the hearing officer ruled that the statutory offset requirements applied to claimant's SSDI benefits and rendered him ineligible to receive unemployment benefits. Claimant also argued that application of this offset violated his rights under the federal Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., prohibiting discrimination based on disability. The hearing officer rejected this argument that he was being discriminated against in violation of the ADA in this regard.
On review, the Panel affirmed, concluding that the record supported the determination that claimant's unemployment benefits were properly reduced pursuant to § 8-73-110(3)(a)(I)(A). The Panel did not address claimant's ADA arguments, ruling that it lacked the authority to determine whether the state statutory requirements were preempted by the federal statute under the Supremacy Clause, U.S. Const. art. VI, cl. 2.
I.
To the e
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