W.C. No. 4-521-956Industrial Claim Appeals Office.
May 5, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) permitting the respondent to reduce the claimant’s permanent partial disability (PPD) benefits by a percentage of PERA “disability retirement benefits” paid to the claimant. The claimant argues that because the PERA benefits are “retirement” benefits they may not be offset against PPD benefits. We affirm.
The claimant suffered a compensable injury while employed by the respondent, and the respondent admitted liability for PPD benefits based on a 22 percent whole person impairment. The claimant was unable to return to work as an equipment operator and accepted a PERA “disability retirement” which paid him $2,272.49 per month. The respondent claimed the right to reduce the PPD benefits by an amount equal to the respondent’s contribution to PERA, or by 56 percent of the monthly payment.
The claimant argued to the ALJ that because he was receiving PERA “retirement” benefits, no offset against PPD is appropriate. The claimant reasoned that retirement benefits may only be set off against awards of permanent total disability benefits. However, the ALJ ruled that the PERA payments constitute a form of “periodic disability benefits” payable to the claimant under a pension or disability plan financed in part by the respondent. Consequently, the ALJ ruled the respondent is entitled to claim the offset under § 8-42-103(1)(d)(I), C.R.S. 2003. We perceive no error in this ruling.
It has long been recognized that disability payments made under PERA are to be offset against PPD benefits under § 8-42-103(1)(d)(I) and its predecessors. The purpose of the offset is to prevent a double recovery of disability benefits where the employer has purchased both workers’ compensation insurance and disability pension benefits for the benefit of the employee. Myers v. State, 162 Colo. 435, 428 P.2d 83
(1967); Spanish Peaks Mental Health Center v. Huffaker, 928 P.2d 741
(Colo.App. 1996); Durocher v. Industrial Claim Appeals Office, 905 P.2d 4
(Colo.App. 1995), aff’d. on other issues, 919 P.2d 246 (Colo. 1996).
The particular name which a claimant or employer assigns to the disability pension benefits is not decisive. Rather, the issue is the purpose of the payments. Myers v. State, supra (fact employer paid a “disability annuity” did not preclude offset). Here, substantial evidence in the record supports the ALJ’s finding that the payments which PERA makes to the claimant are “periodic disability benefits.” The record shows that PERA distinguishes between “service retirement,” which is based on age and longevity, and “disability retirement,” which is based on the worker’s mental or physical incapacity to perform employment. See
§ 24-51-602(1)(a), C.R.S. 2003 (describing criteria for service retirement); § 24-51-702(1)(b), C.R.S. 2003 (describing criteria for disability retirement). The claimant acknowledged that the PERA payments made to him are based on medical disability, and he is not eligible for a “service retirement” based on age and longevity. (Tr. Pp. 20, 23). Thus, the order is supported by substantial evidence and is correct as a matter of law.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 13, 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 May 5, 2004 by A. Hurtado.
Jerry Zeigler, P. O. Box 939, Woodland Park, CO 80866
Lori Stillmunks, City of Colorado Springs/Utilities, P. O. Box 1575-630, Colorado Springs, CO 80901
Barkley D. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Joseph C. Irwin, Esq., P. O. Box 1575-510, Colorado Springs, CO 80901 (For Respondent)