W.C. No. 4-298-133Industrial Claim Appeals Office.
July 15, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) dated December 11, 1997, insofar as the ALJ denied their request for an offset based on the claimant’s receipt of unemployment benefits. We reverse the contested portion of the order.
In 1995 the claimant suffered a compensable injury arising out of his employment at Basin Resources, Inc. The claimant received unemployment benefits at the rate of $272 per week from March 11, 1996 to October 7, 1996.
In the December 11 order, the ALJ ordered the respondents to pay temporary total disability benefits commencing March 10, 1996. However, the ALJ denied the respondents’ request to offset their liability for temporary disability benefits by the amount of the claimant’s unemployment insurance benefits. Instead, the ALJ determined that the claimant’s receipt of unemployment benefits constituted an “overpayment” under § 8-73-110(5), C.R.S. 1997, and that this “overpayment” should be repaid to the Department of Labor and Employment and credited against the “accounts” of the claimant and the respondent-employer.
On review the respondents contend that they are entitled to the statutory offset provided by § 8-42-103(1)(f), C.R.S. 1997, and argue the ALJ exceeded her authority in fashioning an alternate remedy for the claimant’s double recovery of unemployment and temporary disability benefits. We agree.
The ALJ’s authority is strictly statutory, and is limited to the specific powers and duties prescribed by the Colorado Workers’ Compensation Act. Lewis v. Scientific Supply Co., 897 P.2d 905
(Colo.App. 1995). Section 8-43-207 C.R.S. 1997, affords the ALJ original jurisdiction to resolve any controversy arising under the Colorado Workers’ Compensation Act. However, the Colorado Workers’ Compensation Act does not afford the ALJ the authority to determine the claimant’s entitlement to unemployment benefits under the Colorado Employment Security Act. Section 8-70-101, C.R.S. 1997. Cf. Garman v. Regis Hair Stylists, W.C. No. 3-718-863 (April 21, 1997) (ALJ exceeded authority in ordering respondents to satisfy county court judgment against the claimant which included court costs and attorney fees). Neither is it within the ALJ’s jurisdiction to modify the claimant’s unemployment benefits, when the claimant receives such unemployment benefits during a period he is also receiving temporary disability benefits.
To the contrary, the Colorado Workers’ Compensation Act creates an explicit remedy for circumstances where the claimant receives temporary total disability benefits and unemployment compensation benefits during the same period. In that event, the insurer is entitled to a reduction of temporary total disability benefits as provided by § 8-42-103(1)(f). That statute states:
“In cases where it is determined that unemployment compensation benefits are payable to an employee, compensation for temporary disability shall be reduced, but not below zero, by the amount of unemployment insurance benefits received, unless the unemployment insurance amount has already been reduced by the temporary disability benefit amount and except that temporary total disability shall not be reduced by unemployment insurance benefits received pursuant to § 8-73-112.”
Thus, we conclude that § 8-42-103(1)(f) is the exclusive remedy for the “overpayment” of benefits in this claim. In reaching this conclusion, we recognize that § 8-43-207(1)(q), C.R.S. 1997, authorizes the ALJ to order the “repayment of overpayments.” However, § 8-43-207(1)(q) implicitly limits the ALJ’s authority to order the repayment of workers’ compensation benefits, not unemployment insurance benefits. In any case, § 8-43-207(1)(q) applies to injuries on or after July 1, 1997, and therefore, is not applicable to this 1995 industrial injury. See 1997 Colo. Sess. Laws, ch. 45, at 114.
Furthermore, the undisputed facts compel the conclusion that the respondents are entitled to the offset. The parties agree that unemployment compensation benefits were “payable” to the claimant during the same period that the respondents are liable for the payment of temporary total disability benefits. In addition, there is no finding, nor any assertion that the claimant’s unemployment insurance benefits were paid pursuant to §8-73-112 C.R.S. 1997. Neither is there any finding or assertion that the claimant’s unemployment insurance benefits were already reduced under the provisions of § 8-73-110(5), C.R.S. 1997. Consequently, the ALJ erred in failing to grant the offset.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 11, 1997, is reversed insofar as the ALJ failed to allow the respondents to offset their liability for temporary total disability benefits by the claimant’s receipt of unemployment benefits.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed July 15, 1998 to the following parties:
Jake Duran, 1500 No. Linden, Trinidad, CO 81091
Basin Resources, Inc., Attn: K.N. Hallows, 14300 Highway 12, Westin, CO 81019
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
James M. Anderson, Esq., 559 E. Pikes Peak Ave., Ste. 212, Colorado Springs, CO 80903 (For the Claimant)
BY: _______________________