W.C. No. 3-870-606Industrial Claim Appeals Office.
February 20, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wells (ALJ) which granted the respondents’ request to offset their liability for disability benefits by the claimant’s receipt of federal Social Security Disability (SSDI) benefits between May 1, 1991 and August 1, 1994, and recover overpaid disability benefits by reducing the claimant’s disability benefits commencing August 1, 1994, at a rate of $25 per week. We affirm.
The ALJ’s order was based upon Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988), and the following stipulated facts. The claimant suffered a compensable injury on July 6, 1987 and reached maximum medical improvement on October 13, 1991. In an order dated August 18, 1992, the ALJ awarded maximum permanent partial disability benefits of $36,560, which were subsequently paid in a lump sum. On April 6, 1993, the claimant filed a Petition to Reopen and applied for a hearing on the issues of medical benefits and permanent total disability benefits. On May 31, 1994 the ALJ reopened the claim and ordered the respondents to provide certain medical benefits commencing April 6, 1993. The order reserved all other issues for future determination.
In June 1993, the claimant was awarded SSDI benefits retroactive to May 1, 1991. Subsequently, the respondents offered vocational rehabilitation which the claimant accepted. As a result, the respondents admitted liability for temporary disability benefits commencing August 1, 1994, offset by the claimant’s SSDI benefits. The respondents also reduced the claimant’s temporary disability benefits at a rate of $25.00 per week, to recover overpaid disability benefits resulting from the claimant’s award of SSDI benefits retroactive to May 1, 1991.
On review the claimant does not dispute the respondents’ right to a statutory offset against the SSDI benefits he received on or after August 1, 1994. However, the claimant contends that this is a closed claim and argues that, under these circumstances, the ALJ erred in allowing an offset of the SSDI benefits he received between May 1, 1991 and August 1, 1994. We disagree.
Initially, we reject the claimant’s contention that this is a closed claim. The claim was reopened pursuant to the ALJ’s order of May 31, 1994, which granted the claimant’s petition to reopen.
Next, the claimant is mistaken in asserting that benefits cannot be “added or subtracted” once a claim has been closed. To the contrary §8-43-303(1), C.R.S. (1995 Cum. Supp.) [formerly § 8-53-113 C.R.S. (1986 Repl. Vol. 3B)], provides that where a claim is reopened “compensation and medical benefits previously ordered may be ended, diminished, maintained, or increased” as long as the reopening does not “affect the earlier award as to moneys already paid.”
Furthermore, the Workers’ Compensation Act does not preclude an insurer from asserting an offset of SSDI benefits received prior to the date the claim is reopened. See Wilson v. Jim Snyder Drilling, 747 P.2d 647
(Colo. 1987). Consequently, we have previously concluded that upon reopening of a claim the ALJ may grant a “retroactive” offset of social security benefits, as long as it does not require the claimant to return previously received workers’ compensation benefits to the respondents. See Wray v. Colorado Department of Highways, W.C. No. 3-814-784, January 18, 1996; Davis v. Mulberry Inn, Inc., W.C. No. 3-949-781, November 16, 1995 Hollandsworth v. Precision Paving, W.C. No. 3-785-482, February 10, 1995 Renz v. Larimer County School District Poudre R-1, W.C. No. 2-896-485, July 12, 1995.
The result in these cases was based upon Morrison v. Clayton Coal Co., 116 Colo. 501, 181 P.2d 1011 (1947), and Johnson v. Industrial Commission, supra, where the Supreme Court held that it is permissible to allow an offset for SSDI benefits received prior to the date the insurer formally requests the offset. Admittedly, Johnson did not involve the reopening of a claim. However, the Supreme Court suggested that the recovery of overpaid benefits would not violate the “moneys already paid” language in § 8-43-303 if the insurer recovered the overpayment by reducin future benefits.
Contrary to the claimant’s contention, nothing in Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992), or Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991) suggests that disability benefits previously awarded may not be modified retroactively upon the reopening of a claim. Accordingly, the claimant’s reliance upon Milco and Brown Root does not persuade us to alter our prior analysis. Therefore, we adhere to our previously stated conclusion that the ALJ may allow an offset for the SSDI benefits already received, against the respondents’ liability for future workers’ compensation benefits.
The claimant argues that this conclusion is inconsistent with the ALJ’s failure to award medical benefits for treatment rendered prior to the date of the claimant filed his Petition to Reopen. However, the claimant did not appeal the ALJ’s order of May 31, 1994, and therefore, the issue of whether the ALJ properly denied the claimant’s request for medical benefits prior to April 6, 1993, is not properly before us.
Lastly, it is within the ALJ’s discretion to fashion a recovery method for overpaid benefits resulting from a retroactive offset. Louisiana Pacific Corporation v. Smith, 881 P.2d 456 (Colo.App. 1994). Under the totality of factual circumstances presented here, we cannot say that the respondents recovery of overpaid benefits by reducing the claimant’s future benefits at a rate of $25.00 per week exceeds the bounds of reason. Therefore, we may not interfere with the ALJ’s order granting the recovery of overpaid benefits at this rate. See Louisiana Pacific Corporation v. Smith, supra; Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 28, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed February 20, 1996 to the following parties:
John Cody, 7855 Fountain Mesa, Fountain, CO 80817
El Paso County Search Rescue, 3950 Inter Park, Colorado Springs, CO 80907
Colorado Compensation Insurance Authority, Attn: P. Tochtrop, Esq. (Interagency Mail)
William Alexander, Esq., 3608 Galley Road, Colorado Springs, CO 80909-4349 (For the Claimant)
BY: _______________________