W.C. No. 4-291-934Industrial Claim Appeals Office.
February 26, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which determined that the claimant sustained a compensable injury, and denied the respondents’ request for an offset against temporary disability benefits based on the claimant’s receipt of unemployment insurance (UI) benefits. We affirm.
The claimant filed a claim alleging that he suffered a compensable back injury while working for the respondent-employer. The respondents denied liability for the claim.
In his order dated September 26, 1996, the ALJ found that the claimant did sustain a compensable injury. Moreover, he found the respondents liable for temporary total disability benefits from April 2, 1996 through July 22, 1996.
During the period of temporary total disability, the claimant applied for and received UI benefits. However, the ALJ concluded that, in view of Axelson v. Pace Membership Warehouse, 923 P.2d 322 (Colo.App. 1996), cert. granted, September 3, 1996, the respondents are not entitled to claim the UI offset created by § 8-42-103(1)(f), C.R.S. (1996 Cum. Supp.).
On review, respondents contend that Axelson is not applicable in this case because here, unlike the situation i Axelson, the claimant has not reached maximum medical improvement and it is impossible to determine whether he will ever be entitled to additional UI benefits. We are not persuaded.
We have previously rejected similar arguments in Cassara v. Sky Ute Lodge Casino, W.C. No. 4-275-114, January 6, 1997, and Unaboot v. Mountainsmith, Inc., W.C. No. 4-265-783, October 24, 1996. In those cases we held that the essence of the Axelson decision is that claimants who are forced to apply for UI benefits during litigation of their entitlement to temporary total disability benefits should not be deprived of the opportunity to receive full UI benefits after achieving maximum medical improvement. We decline the respondents’ invitation to depart from these prior holdings.
The respondents also argue that Axelson was wrongly decided. However, we are bound by published decisions of the court of appeals, and may not entertain the respondents’ argument. C.A.R. 35(f).
In light of this determination, we need not consider the claimant’s assertion that the respondents have admitted liability for the disputed period of temporary total disability, and therefore, the appeal is moot.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 26, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed February 26, 1997
to the following parties:
Patrick Spagnuolo, 13028 N. 37 Way, Phoenix, AZ 85032
Telluride School District RE-1, 447 W. Columbia, Telluride, CO 81435
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
By: __________________________________________________