W.C. No. 3-116-204Industrial Claim Appeals Office.
May 8, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which determined that they waived their right to an offset based on the claimant’s receipt of Social Security Disability Insurance (SSDI) benefits. We affirm.
The claimant sustained a compensable injury in October 1994. He filed a claim for workers’ compensation benefits that was subsequently closed. In 1996, the respondents agreed to reopen the claim. However, a dispute arose concerning the correct calculation of the claimant’s average weekly wage, and the respondents’ entitlement to an offset based on the claimant’s receipt of SSDI benefits.
On September 27, 1996, counsel for respondents wrote a letter to counsel for claimant confirming that the parties reached agreement to increase the claimant’s average weekly wage to $495. In addition, the letter confirmed the parties’ agreement that, commencing July 1, 1996, the respondents would be entitled to an SSDI offset in the amount of $102.81 per week.
On November 5, 1996, counsel for the claimant wrote a letter to counsel for the respondents advising that the insurer was paying temporary total disability benefits at the rate of $330 per week, an amount which reflected the increased wage but not the offset for SSDI. On November 13, 1996, counsel for respondents replied stating that the respondents regretted the delay in effectuating the “stipulated agreement,” and that “internal unforeseeable situations have complicated our timely response” to the issues.
On November 26, 1996, the respondents filed a General Admission of Liability. The admission indicated that the respondents would pay temporary total disability at the rate of $330 per week until July 7, 1996, and at the rate of $227.19 per week commencing July 8, 1996 through November 24, 1996 (reflecting SSDI offset). However, the admission stated no position with respect to the payment of temporary total disability benefits after November 24.
It is undisputed that, after the admission, the insurer continued to pay temporary total disability benefits at the rate of $330. This rate of payment continued until August 3, 1997, when the respondents began to claim the SSDI offset and reduced temporary benefits accordingly.
On December 20, 1996, counsel for the claimant again wrote a letter to counsel for the respondents stating that the insurer was continuing to pay temporary total disability benefits without taking the SSDI offset. On January 13, 1997, counsel for the claimant wrote another letter to counsel for the respondents stating that the claimant assumed the respondents were waiving their right to the SSDI offset, and expressing concern that the claimant was being placed in an “unfair overpayment situation.” Counsel for respondents replied on January 24, 1997, and declared that the respondents were not waiving their right to the offset, and opining that the claimant was not being prejudiced because he was receiving more than he would otherwise. The January 24 letter stated that any overpayment could be recouped by taking a credit against permanent disability benefits.
It should also be noted that the Division of Workers’ Compensation Claims section wrote two letters to the respondent-insurer inquiring about the November 26 admission. Both letters, dated December 11, 1996 and February 28, 1997, questioned the reason for reducing temporary total disability benefits from $330 to $227.19 per week.
The ALJ concluded that the respondents, through their conduct, waived the right to claim the SSDI offset for the period from November 26, 1996 to August 3, 1997. Specifically, the ALJ stated the respondents were fully aware of their right to claim the offset prior to filing the November 26 General Admission of Liability, and were also aware that the claimant’s counsel was urging them to take the offset. Despite this knowledge, the ALJ found that the respondents did not claim the offset in the November 26 admission, nor did they do so until August 3, 1997, some eight months later. The ALJ explicitly found that the respondents’ “actions were inconsistent with their stated assertion that they did not relinquish their right.”
On review, the respondents first contend the ALJ erred in determining that their conduct evidenced an intent to waive the right to claim the SSDI offset during the disputed period. The respondents assert the record cannot support a finding that they engaged in an “intentional relinquishment of a known right” because they claimed the SSDI offset in the November 26 admission, asserted the right in the letter of January 24, 1997, and discussed the offset in several letters prior to January 24. The respondents also rely on the claimant’s testimony that he understood it was the respondents’ intention to take the offset. We find no error.
It is true that a finding of waiver is dependent on a determination that the party intentionally relinquished a known right. However, a waiver need not be explicit. Instead, it may be inferred from conduct where the party engages in actions evidencing an intent to surrender the right, or acts in a manner inconsistent with assertion of the right. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). The conduct evidencing the waiver should be free from ambiguity and clearly manifest the intent not to assert the right. Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984). However, the question of intent is generally one of fact to be determined by the ALJ. See Grimm Construction Co., Inc. v. Denver Board of Water Commissioners, 835 P.2d 599 (Colo.App. 1992).
Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, substantial evidence supports the ALJ’s finding that the respondents acted in a manner inconsistent with asserting the offset during the disputed period. Although the respondents continued to assert the right to the offset through the letter of January 24, 1997, they never acted in accordance with that assertion at any time prior to August 1997. In fact, despite numerous requests from claimant’s counsel, and two inquiries from the Division of Workers’ Compensation, the respondents did not file an admission of liability claiming the offset after November 26, nor did they reduce the claimant’s benefits. Neither did the respondents offer any explanation for their conduct, except a vague assertion that “internal unforeseeable situations” were causing them difficulties. This explanation occurred in November 1996, and does not explain the respondents’ subsequent failure to claim the offset.
Under these circumstances, we cannot say the ALJ erred in finding that the respondents’ conduct was inconsistent with their written assertions of intent to claim the offset. The respondents’ conduct, which was unexplained and of long duration, supports the ALJ’s finding of waiver. See Johnson v. Industrial Commission, 761 P.2d at 1147 at n. 3 (insurer’s failure to claim offset after being aware of claimant’s right to SSDI might well support finding of waiver). Further, claimant’s initial understanding that the respondents intended to claim the offset does not preclude a determination that they later waived the claim. The mere fact that the evidence might have supported a contrary finding is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The respondents also assert that the finding of waiver is improper because they lacked “full knowledge of the relevant facts.” In support, they point out that they did not receive a copy of the SSDI award until May 1, 1997, and were not informed of the status of the claimant’s wife’s claim for SSDI benefits. We are not persuaded.
A finding of waiver requires a party to possess full knowledge of the relevant facts. Johnson v. Industrial Commission supra. Here, it is undisputed that the respondents were aware of the relevant facts that the claimant was receiving SSDI, and that they were entitled to claim an offset, as of their attorney’s letter dated September 27, 1996. By that date, the respondents had “agreed” to a specific amount for the offset, and in fact claimed the offset for a fixed period of time prior to the November 26 admission of liability.
Under such circumstances, the fact that the respondents had not received an actual copy of the SSDI award did not deprive them of knowledge of the facts relevant to claiming the offset. Further, the fact that the claimant’s wife was applying for dependents’ benefits does not constitute a relevant fact. The issue in this case was the respondents’ right to offset th claimant’s SSDI benefits, and the amount of that offset was not in dispute after September 27. The fact that the respondents might be entitled to an additional offset if the wife receives SSDI does not alter the facts concerning their intention to waive the offset based on the claimant’s benefits.
Insofar as the respondents made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 1, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed May 8, 1998 to the following parties:
Dennis L. Whelan, 3505 N. 12th St., #A1, Grand Junction, CO 81506
Western Company of North America, 2403 River Rd., Grand Junction, CO 81505-1309
National Union Fire Insurance, c/o AIG Claim Services, Attn: Carol Keim, P.O. Box 32130, Phoenix, AZ 85064
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Clyde E. Hook, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
By: _________________________