W.C. No. 4-562-681Industrial Claim Appeals Office.
December 1, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which upheld the respondents’ right to offset the claimant’s award of temporary total disability (TTD) benefits by the amount of unemployment insurance (UI) benefits paid for the same period of time. The claimant contends the ALJ ignored an “agreement” by which the claimant promised to repay the UI benefits to the UI Fund. We affirm.
The essential facts are undisputed. The claimant sustained a compensable injury of bilateral carpal tunnel syndrome (CTS). This condition was apparently diagnosed in November 2002, and the claimant filed a claim for benefits in December 2002.
On May 9, 2002, prior to the CTS diagnosis, the claimant was discharged from employment for what the employer judged to be poor work. Consequently, when the claim was filed, the respondents contended the claimant was precluded from receiving TTD benefits because she was responsible for the separation. Section 8-42-103(1)(g), C.R.S. 2003; § 8-42-105(4), C.R.S. 2003. This issue was ultimately resolved against the respondents by the ALJ’s order dated July 16, 2003, and the respondents were ordered to pay TTD beginning May 9, 2002.
During the pendency of this litigation the claimant applied for and was awarded UI benefits for the period June 1, 2002, through March 1, 2003. Relying on § 8-42-103(1)(f), C.R.S. 2003, the ALJ determined the respondents are entitled to reduce the TTD benefits by the amount of UI benefits which the claimant received. In so doing, the ALJ rejected the claimant’s argument that her attorney’s December 11, 2002, written promise to repay the UI benefits to the UI Fund upon receipt of TTD benefits abrogated the offset.
On review, the claimant contends the ALJ erred by ignoring her “agreement” to repay the UI Fund upon receipt of the TTD benefits. The claimant argues the UI Fund “claimed the credit first” and the respondents are not entitled to the offset by operation of §8-73-110(5), C.R.S. 2003. Instead, the claimant asserts the TTD benefits must be paid either directly or indirectly to the UI Fund. Presumably, this repayment would have the effect of restoring the weeks of UI benefits depleted during the litigation. We disagree with the claimant’s argument.
The pertinent portion of § 8-42-103(1)(f) provides that:
In cases where it is determined that unemployment insurance benefits are payable to an employee, compensation for temporary disability shall be reduced, but not below zero, by the amount of unemployment insurance benefits received, unless the unemployment insurance amount has already been reduced by the temporary disability amount and except that temporary total disability shall not be reduced by unemployment insurance benefits received pursuant to section 8-73-112. (Emphasis added).
Here, the plain language of the statute provides the respondents have the right to offset the amount of UI benefits “received” against TTD benefits. Here, there is no doubt the claimant received the UI benefits. Thus, the respondents are entitled to the offset. See Chapman v. Spectranetics Corp., W.C. No. 4-162-568 (June 28, 1994).
Moreover, we reject the claimant’s assertion that the December 11 letter, by which claimant’s counsel promised the claimant would repay the UI Fund for benefits received upon “collection” of TTD benefits, abrogated the respondents’ right to the offset. In Pace Membership Warehouse v. Axelson, 938 P.2d 504 (Colo. 1997), a fact pattern substantially identical to that presented here, the claimant argued the UI offset statute denied equal protection because it discriminated against claimants who applied for UI benefits during the pendency of litigation concerning entitlement to TTD benefits. The inequality resulted from the fact that if a claimant received UI benefits during the pendency of TTD litigation the claimant’s eligiblity for UI benefits after maximum medical improvement would be reduced by a corresponding number of weeks. Conversely, claimants who do not apply for UI benefits during the pendency of litigation may receive a full award of TTD benefits and a full award of UI benefits after reaching maximum medical improvement.
However, the majority in Axelson rejected this challenge finding that the UI offset provision is designed to coordinate UI and TTD benefits payable for the same period of time. The court determined the statutory scheme is rationally related to the legitimate purpose of coordinating benefits and avoiding double recovery, and the fact that the statutory scheme causes some “inequities” does not lead to invalidation of the offset provision.
In Axelson, Justice Hobbs partially concurred and partially dissented. He argued the constitutional question could and should be avoided by construing the statutory scheme, including § 8-73-110(5), as requiring respondents to reimburse the UI Fund for UI benefits paid during the pendency of the litigation. This reimbursement would have the effect, under § 8-73-110(5), of restoring the weeks of UI benefits depleted during the TTD litigation. According to Justice Hobbs this construction of the statutory scheme would ensure the claimant a full award of TTD and UI benefits and avoid unjust enrichment of the employer.
However, because the views of Justice Hobbs represented the minority of the court, we assume his interpretation of the statutory scheme was rejected by the majority. Rather, the majority concluded that the focus of the offset statute is avoiding double recovery for a specific period of time, and the statute is not unconstitutional because it may have some disparate impact on claimants with different financial resources and different capacities to await the outcome of TTD litigation. 938 P.2d at 509, n. 6.
Consequently, we agree with the ALJ that the letter authored by the claimant’s attorney does not alter the respondents’ statutory right to the offset established by § 8-42-103(1)(f) and Axelson. Nothing in the statute or the Axelson decision states the offset may be abrogated if the claimant promises the UI Fund to “refund” the UI benefits if and when TTD litigation is successfully concluded. Indeed, unless proceedings before the Division of Employment and Training determine the claimant was not entitled to receive the UI benefits, it has necessarily been determined the UI benefits were “payable” to the claimant and he in fact “received” them. What the claimant may choose to do with such benefits after receiving them is of no consequence to the respondents’ statutory right of offset. Cf. Garcia v. Windsor Building Components,
W.C. No. 4-318-532 (June 25, 1998) (statutory offset for UI benefits not appropriate if it is determined the claimant is not entitled to the UI benefits and is ordered to repay them pursuant to § 8-81-101(4)(a)(I)).
Moreover, we reject the claimant’s assertion that there has been an “agreement” to repay the UI Fund. The only evidence in the record is the letter of claimant’s attorney which states the claimant’s intention to refund the UI benefits on successful conclusion of the TTD litigation. There is no evidence that the UI Fund agreed to this procedure, and there certainly is no evidence the respondents agreed to waive the statutory offset. Neither is the letter evidence that the UI Fund claimed any offset or right to recover the TTD benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 16, 2003, 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 is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on December 1, 2003 by A. Hurtado.
Mary Preston, 1502 Rainier Dr., Colorado Springs, CO 80910
Cyril Seligman, Electronic Medical Management, Inc., 1625 W. March Ln., Stockton, CA 95207
Legal Department, Pinnacol Assurance — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Thomas M. Condas, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903 (For Respondents)