W.C. Nos. 4-318-532, 4-319-306.Industrial Claim Appeals Office.
June 25, 1998
FINAL ORDER
The respondents, Windsor Building Components Inc.(Windsor) and Lumber Mutual Insurance Company (Lumber Mutual) seek review of the order of Administrative Law Judge Gandy (ALJ) which determined that the claimant suffered a compensable injury and awarded temporary disability benefits. We modify the award of temporary disability benefits.
The ALJ found that the claimant injured his back while lifting outriggers in his employment with Windsor on November 4, 1996. The ALJ found that the claimant reported the injury, and that he was treated by Dr. Major, who imposed restrictions precluding the claimant from bending, twisting, stooping, squatting, or lifting more than pounds. Windsor provided light duty work to the claimant, but the ALJ found that the work involved some bending which the claimant was unable to perform. The claimant ceased reporting for work, and his employment was terminated on November 27, 1996.
The ALJ found that the claimant has “missed time from work” since November 28, 1996, as a result of the November 1996 injury. Accordingly, he ordered Lumber Mutual to pay ongoing temporary total disability benefits to the claimant commencing November 28. Relying on Axelson v. Pace Membership Warehouse, 923 P.2d 322
(Colo.App. 1996), the ALJ further determined that Lumber Mutual is not entitled to an offset based on unemployment benefits the claimant received. However, the ALJ ordered that payment of benefits was suspended during the time the claimant was incarcerated from May 19 through June 23, 1997.
The respondents contest the ALJ’s determinations that the claimant sustained a compensable injury in November 1996, and that he was unable to perform the light duty work provided by Windsor. The respondents argue these findings are contrary to the “overwhelming weight of the credible evidence” in the record. However, we must uphold the ALJ’s factual determinations if they are supported by substantial evidence. See § 8-43-301(8), C.R.S. 1997. Here, the ALJ’s findings are amply supported by the claimant’s testimony. See Hearing Transcript pp. 15-19, 20-22. Despite the respondents’ arguments, that testimony was not incredible as a matter of law, see Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986), and it constitutes substantial evidence supporting the ALJ’s findings. We have no basis for disturbing the findings.
The respondents further argue that because the claimant was sentenced to 45 days in jail, they should be entitled to an offset against temporary disability benefits for that entire length of time, rather than the actual period of his incarceration. We perceive no error in the hearing officer’s determination. See §8-42-113(1), C.R.S. 1997 (an individual is not entitled to benefits for any week during which he is confined to jail following conviction).
The respondents also argue, and the claimant concedes, that the basis of the ALJ’s denial of the offset for the receipt of unemployment benefits is inconsistent with the Supreme Court’s opinion in Pace Membership Warehouse v. Axelson, 938 P.2d 504
(Colo. 1997). However, the claimant contends that it was subsequently determined he was not entitled to the unemployment benefits he received, and that to the extent he is required to repay those benefits, the respondents should not be entitled to an offset. We agree.
Section 8-42-103(1)(f), C.R.S. 1997, provides that “in cases where it is determined that unemployment insurance benefits ar payable to an employee, compensation for temporary disability shall be reduced, but not below zero, by the amount of unemployment insurance benefits received.” (Emphasis added) Here, it is undisputed there was at least an initial determination that unemployment benefits were “payable” to the claimant, and that the claimant received unemployment benefits. Thus, we believe the respondents are entitled to an offset based on the benefits actually received by the claimant. Pace Membership Warehouse v. Axelson, supra (purpose of offset is to prevent double recovery of wage loss benefits).
However, the claimant may be required to repay the unemployment benefits, if there has been a subsequent determination that he was not entitled to the benefits he received. See § 8-81-101(4)(a)(I), C.R.S. 1997 (any person who was not entitled to unemployment benefits he received shall be required to repay those benefits, unless it is determined repayment would be inequitable). To the extent the claimant is required to repay the unemployment benefits, and thus would no longer have “received” the benefits, he shall be entitled to the temporary disability benefits that were reduced under §8-42-103(1)(f). Therefore, we modify the ALJ’s order accordingly.
Finally, the respondents argue that the claimant’s temporary disability benefits should be reduced based on the $252 he was paid for work performed in July or August 1997. See Hearing Transcript pp. 24, 43. The claimant concedes that the respondents are entitled to this reduction. See § 8-42-106(1), C.R.S. 1997 (concerning temporary partial disability).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 31, 1997, is modified to provide that the respondents are entitled to reduce the award of temporary disability benefits based on unemployment benefits the claimant received, as provided in §8-42-103(1)(f). However, if it is determined that the claimant was not entitled to those unemployment benefits, and he is required to repay the unemployment benefits, the claimant would be entitled to the temporary disability benefits that were reduced under that statute.
IT IF FURTHER ORDERED that the ALJ’s order is modified to provide that the respondents are entitled to reduce the temporary disability award based on $252 the claimant was paid for work he performed in July or August 1997. In all other respects the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
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 June 25, 1998 to the following parties:
Greg Garcia, 2436 10th Ave. Ct., Greeley, CO 80631
Windsor Building Components, P.O. Box 732, Windsor, CO 80550-0732
R R Custom Woodworking, Inc., P.O. Box 1232, Greeley, CO 80632-1232
Lumber Mutual Insurance Co., Attn: Diane Struble, 3601 Minnesota Dr., #400, Minneapolis, MN 55347
Colorado Compensation Insurance Authority, Attn: Legal Department (Interagency Mail)
Regina M. Walsh Adams, Esq., 1122 9th St., Ste. 202, Greeley, CO 80631 (For the Claimant)
Bruce McCrea, Esq., 1777 S. Harrison St., Ste. 1110, Denver, CO 80210 (For the Windsor Respondents)
David L. Smith, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For CCIA Respondents)
BY: _______________________