W.C. No. 4-160-080Industrial Claim Appeals Office.
April 7, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) dated December 16, 1996. The claimant contends that the ALJ erred in denying his petition to reopen. We disagree, and therefore, affirm.
In an order dated March 2, 1995 and corrected on March 7, 1995, the ALJ found that the claimant is permanently and totally disabled due to the combined effects of a 1993 industrial injury, which is the subject of this claim, and injuries in 1981 and 1982, while the claimant was employed by the City of San Diego. The City of San Diego determined the claimant to be permanently totally disabled as a result of the 1981 and 1982 injuries, and thus, awarded the claimant disability retirement benefits in the amount of $523.13 per month. The contributions by the City of San Diego amount to $404.46 of the monthly benefit.
The ALJ determined that 70 percent of the claimant’s disability is due to the 1981 and 1982 injuries. Consequently, the ALJ apportioned liability for the claimant’s permanent total disability benefits in a 70/30 ratio between the Subsequent Injury Fund (SIF) and the Colorado Compensation Insurance Authority. However, pursuant to § 8-42-103(1)(d)(I), C.R.S. (1996 Cum. Supp.), the ALJ allowed the respondents to offset their liability by the claimant’s receipt of disability retirement benefits from the City of San Diego. The claimant appealed the ALJ’s order insofar as the ALJ granted an offset against his disability retirement benefits.
In an order dated October 19, 1995, we upheld the ALJ’s order, and rejected the claimant’s contention that the respondents are not entitled to an offset of his disability retirement benefits because the respondent-employer did not contribute to the City of San Diego’s disability retirement fund. No appeal was taken from this order.
However, on June 21, 1996, the claimant petitioned to reopen the claim based upon mistake of law. The claimant relied on Spanish Peaks Mental Health Center v. Huffaker, 928 P.2d 741 (Colo.App. 1996), where the court disallowed an offset because the employer had not contributed to the pension fund which was the source of the claimant’s disability pension. In the ALJ’s order of December 16, 1996, he determined that the claimant failed to establish a mistake of law. The claimant’s arguments notwithstanding, we agree with the ALJ.
As argued by the claimant, § 8-43-303(1), C.R.S. (1996 Cum. Supp.), allows an ALJ to reopen a claim due to a mistake of law. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). A mistake of law is established if the original order is inconsistent with a subsequent interpretation of a controlling statute. Renz v. Larimer County School District Poudre R-1, 924 P.2d at 1180, 118 ; Travelers Insurance Co., Industrial Commission, 646 P.2d 399 (Colo.App. 1981).
Section 8-42-103(d)(I), [formerly § 8-51-103(1)(d)(I), C.R.S. (1986 Repl. Vol. 3B)], allows an insurer to offset its liability for permanent total disability benefits:
“[i]n cases where it is determined that periodic disability benefits are payable to an employee under the provisions of a pension or disability plan financed in whole or in part by the employer, herein after called `employer pension or disability plan.'” (Emphasis added).
In Spanish Peaks Mental Health Center v. Huffaker, supra, the claimant was determined to be permanently and totally disabled as a result of an industrial injury sustained during his employment at Spanish Peaks Mental Health Center (Spanish Peaks), and Spanish Peaks was solely liable for the claimant’s permanent disability. However, at the time of the injury the claimant was concurrently employed at the Colorado State Hospital (CSH), and CSH awarded the claimant PERA disability retirement benefits as a result of his disability from the industrial injury. Spanish Peaks sought to offset its liability for workers’ compensation benefits by the claimant’s receipt of the PERA benefits in accordance with former § 8-51-103(1)(d)(I). However, Spanish Peaks made no contribution to the PERA fund which was the source of the claimant’s disability retirement benefits.
The request for offset was denied and we affirmed. See Huffaker v. Spanish Peaks Mental Health, W.C. No. 3-861-876, September 22, 1995. We concluded that, in the context of § 8-42-103(1)(d)(I), the term “employer” means the employer in whose employ the claimant sustained the industrial injury. Because CSH was not the employer in whose employ the claimant suffered the industrial injury, we held in that Spanish Peaks was not entitled to offset its liability for permanent total disability benefits by the claimant’s receipt of PERA disability retirement benefits. The Court of Appeals agreed, and accordingly, affirmed our holding.
The claimant in this matter argues that the court’s holding i Huffaker constitutes a subsequent interpretation of § 8-42-103(1)(d)(I), which could not be anticipated at the time of the final order in this matter. This argument is without merit.
In affirming the ALJ’s March 7 order, we expressly discussed our analysis in Huffaker v. Spanish Peaks Mental Health, supra. However, we concluded that Huffaker was distinguishable and did not govern the facts of this claim.
Furthermore, we are not persuaded by the claimant’s arguments that our prior conclusion was incorrect. Unlike Huffaker, which involved concurrent employment, this claim involves multiple industrial injuries occurring during sequential employment. Furthermore, in this case, all of the industrial injuries contributed to the claimant’s permanent total disability. Two of the injuries occurred during the claimant’s prior
employment with the City of San Diego, and thus, the SIF was determined to be liable for that portion of the claimant’s permanent total disability. See Subsequent Injury Fund v. Trevethan, 809 P.2d 1098
(Colo.App. 1991) (SIF is the functional equivalent of the workers’ compensation insurer carrier). Therefore, in contrast to the circumstances presented in Huffaker, the employer in whose employment this claimant suffered one of the industrial injuries which caused his permanent total disability, is also “the employer” who contributed to his PERA benefits.
Under these circumstances, we agree with the ALJ that his March 7 order is not inconsistent with the Huffaker court’s interpretation of the predecessor statute to § 8-42-103(1)(d)(I). It follows that the ALJ’s March 7 order allowing an offset against the claimant’s disability retirement benefits was not a mistake of law.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 16, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed April 7, 1997 to the following parties:
Ray Cesario, 1306 Inverness Drive, Lafayette, CO 80026
Building Services Systems, Inc., c/o CCIA (Interagency Mail)
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder Esq., (Interagency Mail)
Special Funds — Interagency
Katherine H.R. Mackey, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
John G. Taussig, Jr., Esq., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
Jill Gallett, Esq., A.A.G., Office of Attorney General, Human Resources Section, 1525 Sherman, 5th Flr., Denver, CO 80203 (For SIF)
By: _______________________________