W.C. No. 4-608-694.Industrial Claim Appeals Office.
July 28, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated March 24, 2011 to the extent the ALJ ordered the respondents to pay permanent partial disability (PPD) benefits of $164.19 a week for 59.753 weeks, consistent with our earlier order of remand. We affirm.
This matter concerns the application of the statutory offset of Social Security Disability Insurance (SSDI) benefits and the statutory cap on benefits to the claimant’s PPD benefits. The claimant sustained an industrial injury in 2004. The applicable statutory scheme provides that the aggregate benefits payable to the claimant for temporary total disability and permanent partial disability benefits shall be reduced, but not below zero, by an amount practically equal to one-half of his SSDI benefits. Section 8-42-103(1)(c)(I), C.R.S. 2009. (Recent amendments eliminated the SSDI offset for PPD benefits for cases involving injuries on or after July 1, 2010. Colo. Sess. Laws 2010, Ch. 310 at 1458-60.) The claimant’s entitlement to combined temporary disability payments and PPD payments is limited to $120,000. Section 8-42-107.5, C.R.S. 2004.
We disagreed with the ALJ’s initial calculation of PPD benefits payable to the claimant and remanded this matter for a new order. The claimant appealed our order of remand to the Colorado Court of Appeals. The court determined that our order was interlocutory and dismissed the appeal without prejudice. The court’s mandate issued on November 19, 2010.
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On remand the ALJ determined that the claimant had already been paid $98,369.99 in temporary total disability benefits and that the claimant is subject to a statutory cap on benefits of $120,000. The respondents’ remaining liability for PPD benefits is $21,630.01. The maximum payout rate for PPD is $361.99. The weekly SSDI offset is $197.80. The ALJ ordered the respondents to file a final admission of liability to pay PPD benefits consistent with our remand. We had concluded that it was necessary to reflect the statutory offset for SSDI by calculating the number of weeks it would take to pay the remaining balance of PPD benefits in the amount of $21,630.01 (59.753 weeks) and apply the weekly SSDI offset against the weekly PPD benefits payment accordingly. Thus, the ALJ ordered the respondents to pay the claimant PPD benefits in the weekly amount of $164.19 for 59.753 weeks. The ALJ also awarded the claimant $1,500 for permanent disfigurement, which the claimant does not contest on appeal.
The claimant does not dispute the accuracy of the ALJ’s calculations according to our instructions on remand. Instead, the claimant again raises arguments regarding how the claimant’s PPD benefit payments should be calculated. Essentially, the claimant takes issue with our determination that it is necessary to apply the SSDI offset to the remaining balance of PPD benefits available under the statutory cap applicable to the claim, as done by the ALJ on remand, in order to prevent a double recovery of benefits. However, we adhere to the reasoning set forth in our previous order issued on December 14, 2009 and incorporate that order here by reference.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 24, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Dona Rhodes
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LEONARD FLORES, PUEBLO, CO, (Claimant).
ROCKY MOUNTAIN STEEL MILLS, Attn: CAROLYN BJUR, SUITE 2200, PORTLAND, OR, (Employer).
CONTINENTAL CASUALTY CO., Attn: MICHELLE TRESSLER, C/O: SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., LEXINGTON, KY, (Insurer).
LAW OFFICE OF MICHAEL W SECKAR, PC, Attn: MICHAEL W SECKAR, ESQ., PUEBLO, CO, (For Claimant).
LEE KINDER, LLC, Attn: KATHERINE M LEE, ESQ., E FLORIDA AVE, SUITE DENVER, CO, (For Respondents).
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