W.C. No. 3-612-485Industrial Claim Appeals Office.
February 5, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Henk (ALJ), insofar as the ALJ declined to order retroactive relief due to an error in the calculation of the Public Employees’ Retirement Association (PERA) offset. We affirm.
In an order dated June 8, 1988, ALJ Barringer awarded the claimant permanent total disability benefits, and ordered a PERA offset in the amount of $44.42 per week. In January 1996, the respondents filed a petition to modify ALJ Barringer’s order alleging that there was a “mathematical error” in computation of the PERA offset.
Following a hearing and the acceptance of stipulated facts, ALJ Henk concluded that there had been an error in the calculation of the PERA offset and increased the offset to $106.61 per week. However, ALJ Henk refused to apply the modified offset retroactively so as to create an overpayment which the respondents could recover against future benefits. In this regard, the ALJ stated the following:
“The ALJ concludes that the new PERA off-set [sic] should only take effect as of the date of this Order. This is because Section 8-43-303(1) prohibits Respondents from seeking retroactive relief for benefits already paid once a claim is closed, and because Respondents only requested prospective relief . . .”
On review, the respondents contend that the ALJ erred in concluding that § 8-43-303(1) “precludes [the respondents] from recouping a retroactive offset against future benefits.” In support of their argument the respondents principally rely o Cody v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 96CA0485, October 24, 1996). However, because the evidence supports the ALJ’s determination that the respondents did not seek a retroactive offset, we must uphold the order.
Generally, a party may not raise issues on appeal which were not first raised before the ALJ. Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo.App. 1995). Moreover, a party may not take one position before the ALJ, and take a contrary position on appeal. See Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993); Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993).
At the hearing on June 3, 1996, the following colloquy occurred between ALJ Henk and counsel for the respondents concerning the issues for determination:
“The Court: I have need to offset and average weekly wage. Offset recalculation is looking from today forward?
Respondents’ Counsel: Yes.
The Court: You probably wouldn’t get it retro anyway.
Respondents’ Counsel: I don’t believe so.”
Further, the respondents’ “Position Statement,” dated June 3, 1996, states as follows:
“The computations within paragraph 5 of the order were incorrect and the respondents respectfully request the issuance of an order allowing them to prospectively modify the amount of the PERA offset to which they are entitled.” (Emphasis added).
Further, the respondents second position statement, submitted after the hearing, does not indicate that the respondents were seeking relief in the form of retroactive modification of the PERA offset.
Under these circumstances, we agree with the ALJ’s determination that the respondents did not timely raise the issue of whether they are entitled to retroactive modification of the PERA offset. To the contrary, the respondents affirmatively waived consideration of this issue both in writing, and orally at the hearing. Thus, regardless of the correctness of the ALJ’s legal conclusion regarding the propriety of any such offset, we need not address the issue on appeal.
IT IS THEREFORE ORDERED that ALJ Henk’s order dated June 21, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed February 5, 1997 to the following parties:
Louise M. Samora, P.O. Box 1202, Pueblo, CO 81002
Terry Garcia, State Hospital, Raymond F. Callahan, Esq., 3464 S. Willow St., Denver, CO 80231-4599
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco-Galvin, Esq. (Interagency Mail)
Raymond F. Callahan, Esq., 3464 S. Willow St., Denver, CO 80231-4599 (For the Respondents)
Erik W. Lang, 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
By: _______________________________________