W.C. No. 3-902-709Industrial Claim Appeals Office.
December 22, 1997
ORDER OF REMAND
The pro se claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ), which suspended the claimant’s temporary total disability benefits in order to allow the respondent to recover an overpayment of benefits. We set the order aside and remand for entry of a new order.
The ALJ found that the claimant sustained a compensable injury on April 21, 1988, and is entitled to receive temporary total disability benefits. The ALJ also found that in 1994 the claimant was notified of his right to receive social security disability insurance benefits (SSDI). The award was retroactive to July 1, 1991, and the retroactive benefits equaled $17,818.
The ALJ further found that the claimant has received “disability pension benefits” in the total amount of $385,791. The parties stipulated that the employer pension plan was “fully funded” by the respondent. However, the respondent never claimed any offset as a result of the claimant’s receipt of the pension disability benefits.
In January 1997, the respondent filed a petition to modify, terminate or suspend the claimant’s temporary total disability benefits because of the claimant’s receipt of the pension disability benefits and the retroactive SSDI award. (Respondent began claiming an offset for ongoing SSDI benefits in May 1994). The claimant filed an “objection” to the petition to terminate arguing, among other things, that he is “not liable for voluntary payments made after [the respondent] received notification of all facts that would effect [sic] their determination of benefits.” The claimant specifically alleged that in March 1994, he advised insurance adjuster Reginald Vaughn of his receipt of the SSDI award and the “payment from United Airlines.”
At the suspension hearing, the claimant testified that in 1989 he advised a “claims supervisor” adjusting the claim on behalf of the respondent that he was “receiving retirement payments of $4,132 per month from United Airlines.” (Tr. p. 42). He also testified that he notified adjuster Vaughn of this fact. (Tr. p. 42). Moreover, the claimant testified that he notified the respondent’s adjusters of the SSDI award. (Tr. p. 43).
Following completion of the hearing, the ALJ entered an order granting the respondent the right to suspend the claimant’s temporary total disability benefits until they “recoup” an overpayment of $403,609. This amount represents the retroactive SSDI award and the total pension disability payments. In so doing, the ALJ stated that the claimant “previously provided the Respondent with documentation regarding his receipt of social security disability benefits and disability benefits under the pension plan.” However, the ALJ stated that the claimant did not “contest the fact that the Respondent is in fact entitled to an offset based upon Claimant’s receipt of disability benefits.”
The claimant petitioned to review the ALJ’s order citing numerous procedural errors, challenging the ALJ’s jurisdiction to award the offsets, and alleging a denial of due process. The claimant also reiterated his argument that the respondent, “by its actions, chose not to take a statutory offset of temporary disability benefits” after notice of his receipt of the SSDI and pension disability benefits. (Argument 17). We conclude that the ALJ’s findings are insufficient to resolve this latter argument, and remand for entry of a new order.
The ALJ is obliged to enter findings of fact and conclusions of law sufficient to indicate the basis of his order. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Where the ALJ’s findings are insufficient to resolve the legal issues, and permit appellate review, we may remand the matter for entry of a new order. Section 8-43-301(8), C.R.S. 1997.
As a general matter, there is no statutory prescription establishing a time limit for recovering statutory offsets. Cody v. Industrial Claim Appeals Office, 940 P.2d 1042 (Colo.App. 1996). However, the statutory right to recover an offset is always subject to equitable limitations, including the doctrine of waiver. Johnson v. Industrial Commission, 761 P.2d 1140
(Colo. 1988).
Waiver is the intentional relinquishment of a known right which may be explicit, or may be implied by conduct. Johnson v. Industrial Commission, 761 P.2d at 1147. Footnote 3 from th Johnson decision is pertinent here:
“Although we cannot say that the commission erred in rejecting Johnson’s estoppel and waiver claims, we point out that an insurer should timely claim an offset once the insurer has reason to believe that a workers’ compensation claimant is eligible to receive social security disability benefits, [citation omitted], and the insurer’s failure to do so might well support, under a different factual record, a determination that the insurer has waived, or is estopped from asserting, any claim of offset for social security disability benefits received by the workers’ compensation claimant and the worker’s dependents prior to the point at which the offset is claimed.”
Here, the claimant testified that, by 1989, one of the respondent’s adjusters was aware of his receipt of pension disability benefits. Further, the claimant testified that the respondent was aware of the retroactive SSDI award by May 1994. In fact, the ALJ expressly found that the claimant provided “documentation” to the respondent concerning his receipt of these benefits.
Nevertheless, the ALJ made no explicit findings and conclusions concerning evidence that the respondent waived its right to claim the offsets by failing to take timely action to claim them. In our view, this evidence, if credited, could support the inference that the respondent had full knowledge of the relevant facts and voluntarily, knowingly, and intelligently waived its right to claim the offsets prior to its filing of the petition to suspend benefits. The failure to resolve this issue warrants a remand because the transcript indicates that the ALJ may not have recognized that waiver is a valid defense to statutory claims for offset. (Tr. p. 45). Cf. Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996) (case warranted remand for additional findings where claimant’s factual allegations indicated estoppel, even though the term “estoppel” was not expressly mentioned in claimant’s position statement).
On remand, the ALJ shall enter specific findings of fact and conclusions of law concerning whether or not the respondent’s conduct amounts to a waiver of its right to claim an offset based on the claimant’s receipt of the retroactive SSDI award, and the claimant’s receipt of pension disability benefits. In light of this disposition, we need not consider the claimant’s remaining arguments at this time.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 11, 1997, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
Copies of this decision were mailed December 22, 1997 to the following parties:
Eric E. Chandler, 980 Fireweed Dr., Salt Lake City, UT 84123
United Airlines, Inc., Denver International Airport, 8500 Pena Blvd., Denver, CO 80249
Laurie Iverson, Hartford Insurance Company, P.O. Box 22815, Denver, CO 80222
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)
By: _______________________________