W.C. No. 3-962-376Industrial Claim Appeals Office.
February 2, 1998
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wells (ALJ) which determined that the respondents overpaid temporary total and permanent disability benefits in the amount of $36,682.34. We set aside the order and remand the matter to the ALJ for entry of a new order.
The matter was submitted to the ALJ on the following stipulated facts. The claimant received temporary disability benefits from 1989 to March 18, 1993, when he reached maximum medical improvement (MMI). At that time the respondents admitted liability for maximum permanent partial disability benefits ($37,560). The claimant received periodic permanent partial disability benefits at the rate of $120 per week from May 26, 1993 to July 20, 1993, when the respondents made a lump sum payment of permanent partial disability benefits in the amount of $31,792.83. From July 21, 1993 to November 3, 1994, no disability benefits were paid to the claimant. On November 3, 1994 temporary total disability benefits were reinstated and paid through March 23, 1995. The claimant currently receives benefits for permanent total disability.
Effective August 1992, the claimant was awarded Social Security Disability Insurance benefits (SSDI). No SSDI offset was taken until March 23, 1995. As a result of the SSDI award the parties stipulated that the respondents overpaid temporary disability benefits in the amount of $4,889.51 between August 1992 and March 23, 1995.
The ALJ found that there were two periods of temporary total disability and one lump sum payment of permanent partial disability, which were overpaid as a result of the SSDI offset. Based upon the parties’ stipulation, the ALJ found that temporary disability benefits were overpaid in the amount of $4,889.51. The ALJ also found that permanent partial disability benefits were overpaid in the amount of $13,746.96 due to the SSDI offset. The ALJ’s calculation was based upon his finding that the lump sum award equaled 313 weeks of benefits (March 18, 1993 to March 17, 1999), which he then multiplied by the SSDI offset of $43.92 per week.
Furthermore, relying upon Kehm v. Continential Grain, 756 P.2d 381 (Colo.App. 1987), the ALJ determined that the $18,045.87 balance of the lump sum award must be credited against the respondents’ liability for permanent total disability benefits. Consequently, the ALJ calculated the total overpayment as $36,682.34 ($18,045.87 + $13,746.96 + $4,889.51).
According to the claimant, the respondents have paid a total of $51,806.28 in disability benefits between November 1989 and February 24, 1997, but he is only entitled to disability benefits of $20,514.57. Therefore, the claimant contends that the total overpayment through February 24, 1997 is $31,291.71. Furthermore, the claimant argues that the ALJ’s order erroneously allows the respondents to take a double SSDI offset for permanent partial disability benefits payable between March 18, 1993 and March 17, 1999, and the temporary total and permanent total disability benefits he received between November 3, 1994 through February 24, 1997. The claimant contends that the respondents are entitled to only a single offset.
Because the claimant’s calculation of the overpayment is based upon disability benefits paid prior to the award of SSDI, the claimant’s calculations are not persuasive. Nevertheless, we conclude that the ALJ’s findings of fact are insufficient to resolve the claimant’s contention that the ALJ erroneously granted a double offset. Therefore, we must remand the matter for entry of a new order.
Section 8-42-103(1)(c)(I), C.R.S. 1997, [formerly §8-51-101(1)(c), C.R.S. (1986 Repl. Vol. 3B)], provides that:
“In cases where it is determined that periodic disability benefits granted by the federal old-age, survivors, and disability insurance act are payable to an individual and said individual’s dependents, the aggregate benefits payable for temporary total disability, temporary partial disability, permanent partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to one-half such federal periodic benefits; . . . .”
The purpose of this statute is to prevent the claimant from receiving a “double recovery” of workers’ compensation benefits and SSDI benefits for the same disability. L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994). Furthermore, in Yates v. Sinton Dairy, 883 P.2d 562 (Colo.App. 1994), the court held that the term “aggregate benefits” refers to all benefits which are “payable” to a claimant at the time the offset is taken.
A claimant normally receives temporary disability and permanent disability benefits consecutively, not concurrently. This is true because permanent disability benefits are not payable until MMI and temporary disability benefits cease at MMI. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). It follows that, under normal circumstances, the respondents are entitled to an SSDI offset against temporary disability benefits and a separate, subsequent offset against permanent partial disability benefits. Thereafter, if the claimant is awarded permanent total disability benefits the respondents are entitled to the SSDI offset against the permanent total disability benefits.
Admittedly, under some circumstances, temporary and permanent partial disability benefits may be paid concurrently. See Mesa Manor v. Industrial Claim Appeals Office, 881 P.2d 443 (Colo.App. 1994); Hetherington v. Aspen Leaf Builders Supply, Inc., W.C. No. 3-058-466, May 22, 1997. However, a claimant is not entitled to benefits for temporary disability, permanent partial disability and permanent total disability for the same periods of time Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168
(Colo.App. 1996). This is because a claimant cannot be more than permanently totally disabled.
Accordingly, where a claimant is receiving temporary or permanent partial disability benefits during the same periods of time that he is receiving permanent total disability benefits, the temporary or permanent partial disability benefits must be credited against the respondents’ liability for permanent total disability benefits. See Hetherington v. Aspen Leaf Builders Supply, Inc., W.C. No. 3-058-466 (May 22, 1997). The SSDI offset is then applied against the rate of permanent total disability benefits which are payable to the claimant after the application of the credit.
We also note that, subsequent to the order issued by the ALJ, the court announced National Fruit Product v. Crespin, ___ P.2d ___ (Colo.App. No. 97CA0150, September 18, 1997). In Crespin, the court recognized that, under some circumstances, a claimant may receive permanent partial disability benefits and permanent total disability benefits for different periods of time. In Crespin, the claimant suffered an injury and in 1989 was awarded permanent partial disability benefits based upon a 5 percent disability. The claim was reopened on three occasions, and the claimant was awarded additional temporary and permanent partial disability benefits. In 1994, the claim was again reopened resulting in an award of permanent total disability benefits commencing in July 1995. Under the circumstances, the court held that crediting the claimant’s permanent partial disability benefits against his subsequent permanent total disability benefits would, in effect, deprive the claimant of compensation for the periods of time in which he was only permanently partially disabled. Consequently, the court held that the respondents were not entitled to a credit against permanent total disability for permanent partial disability benefits, which were due and payable prior to July 1995.
Here, the stipulated facts suggest that between March 18, 1993 and November 3, 1994, the only benefits “payable” to the claimant were permanent partial disability benefits at the rate of $120 per week. See Denver v. Nemeth, 138 Colo. 505, 3335 P.2d 292
(1959). Consequently, insofar as the claimant was not temporarily disabled nor permanently totally disabled during this time frame Crespin compels a conclusion that the permanent partial disability benefits which were payable during this period may not be credited against the respondents liability for permanent total disability benefits.
However, we are unable to ascertain from the stipulated facts, the parties’ appellate briefs and the ALJ’s findings of fact, when the claimant became permanently totally disabled. Therefore, the record is insufficient for us to ascertain whether the ALJ correctly calculated the overpayment of permanent partial disability benefits, and the matter must be remanded for a new order which reflects the ALJ’s consideration of the principles announced in Crespin.
In reaching this conclusion we are aware of the respondents’ Final Admission of Liability dated January 25, 1996. However, that Admission purports to admit liability for permanent total disability benefits commencing “3-18-93.” Thus, the Admission conflicts with the parties’ written stipulation which indicates that the claimant was temporarily disabled between November 1994 and March 1995.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 13, 1997, is set aside and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
Copies of this decision were mailed February 2, 1998 to the following parties:
Cynthia L. Keith, 14201 E. Hawaii Cir., Unit D, Aurora, CO 80012
Jewell Melby, Integrated Health Services, 3625 Parkmoor Village Drive, Colorado Springs, CO 80917
Pamela Rose, Wausau Insurance Companies, P.O. Box 419157, Kansas City, MO 64141-6157
Mark E. Macy, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For the Respondents)
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 203, Colorado Springs, CO 80910-3026 (For the Claimant)
David L. Smith, Esq. Douglas P. Ruegsegger, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
BY: ________________________________