W.C. No. 4-102-139Industrial Claim Appeals Office.
February 16, 1996
FINAL ORDER
The self-insured respondent seeks review of a final order of Administrative Law Judge Wells (ALJ) which denied the respondent’s claim for an offset based upon the claimant’s alleged eligibility for Public Employees Retirement Association (PERA) benefits. We affirm.
The ALJ found that the claimant was entitled to PERA benefits based upon his employee contributions and length of service with the respondent. However, the claimant elected to withdraw his personal contribution to PERA and “essentially opted out of the system.” Consequently, the claimant was not entitled to PERA disability benefits.
Under these circumstances, the ALJ concluded that the respondent is not entitled to offset its workers’ compensation liability under the statute currently codified at § 8-42-103(1)(d)(I), C.R.S. (1995 Cum. Supp.). The ALJ concluded that, because employees with PERA accounts are entitled to withdraw their contributions, they “should not be penalized or made to leave their money in so that they can receive their disability retirement” and reduce the employer’s workers’ compensation liability.
Relying principally on Hurtado v. CFI Steel Corp., 168 Colo. 37, 449 P.2d 819 (1969), the respondent argues that the claimant was obliged to apply for PERA disability benefits so as to reduce workers’ compensation liability. The respondent also cites § 8-42-103(d)(II), C.R.S. (1995 Cum. Supp.), which states that claimants “shall apply for such periodic disability benefits” upon request by the insurer or employer. We find no error.
We rejected a nearly identical argument in the case of Rolfe v. Colorado Department of Public Safety, W.C. Nos. 3-897-090 4-106-954, February 8, 1996. In that case, we recognized that PERA disability benefits are subject to offset under § 8-42-103(1)(d)(I), but only in an amount proportional to the employer’s percentage of total contributions to the pension or disability plan. Section 8-42-103(1)(d)(I)(A), C.R.S. (1995 Cum. Supp.); Colorado Department of Highways v. Sparling, 821 P.2d 780
(Colo. 1991). We also noted that the purpose of the statutory scheme is to preclude a “double recovery” by the claimant where the employer has purchased workers’ compensation insurance and has also purchased, in whole or in part, a disability pension for the employee. See Myers v. State of Colorado, 162 Colo. 435, 428 P.2d 83 (1967); Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995), cert. granted on other issues, October 30, 1995.
In Rolfe, we held that § 8-42-103(1)(d)(I) does not permit an offset where the claimant withdraws his personal contribution to PERA because the claimant will not receive any PERA disability benefits, and hence, will not receive a “double recovery.” Moreover, we recognized that the claimant’s election to withdraw his personal contribution relieves the employer of any obligation to contribute to the PERA retirement program, and therefore, does not create a situation where an employer purchases “both a disability plan and workers’ compensation insurance” for the same injury.
We also rejected the argument that PERA benefits should be treated the same as social security disability benefits under the decision in Hurtado v. CFI Steel Corp., supra. We noted that, in the case of social security disability benefits, a pool of disability benefits is available regardless of the employer’s contribution. In contrast, where a claimant withdraws his PERA contribution there is no available fund of disability benefits. Consequently, the effect of the claimant’s withdrawal is to restore the situation to the status quo ante, and neither the claimant nor the employer is treated inequitably.
Moreover, we agree with the ALJ’s recognition that social security is an entirely mandatory system, whereas PERA permits a claimant to “opt out.” We perceive nothing in the workers’ compensation system, including § 8-42-203 [8-42-103](1)(d)(II), as designed to deprive PERA contributors of their right to withdraw personal contributions merely because they sustain an injury which entitles them to workers’ compensation benefits. To hold otherwise would work a distinct inequity in ways not contemplated by Hurtado.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 31, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed February 16, 1996 to the following parties:
Michael L. Cope, II, 28 North Hayman Ave., Colorado Springs, CO 80909
Andrew Martinez, City of Colorado Springs, P.O. Box 1575-1370, Colorado Springs, CO 80901
Anthony R. Cross, 416 E. Colorado Ave., Ste. 200, Colorado Springs, CO 80903
(For the Claimant)
Gregory K. Chambers, Esq. Scott L. Evans, Esq., 950 S. Cherry St., #1502, Denver, CO 80222
(For the Respondent)
By: ________________________