W.C. No. 4-796-763.Industrial Claim Appeals Office.
July 28, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber dated February 22, 2011, that ordered the claimant to repay the insurer an overpayment of $15,494.30. We affirm.
The claimant suffered an admitted industrial injury on June 20, 2009. On June 29, 2009, the employer terminated the claimant’s employment due to positive drug test results. Following instructions from the Division of Workers’ Compensation, the insurer withdrew an admission for temporary total disability (TTD) benefits for the closed period between the date of injury to the date of termination. The insurer filed an amended admission for continuing TTD benefits and filed a petition to terminate TTD benefits.
A hearing was held on the petition terminate. By order dated November 30, 2009, ALJ Friend found that the claimant was responsible for the termination of his employment and that the insurer was not liable for TTD benefits. The respondents filed a Final Admission of Liability asserting an overpayment. The respondents applied for a hearing to recover the overpayment and this issue was heard before ALJ Stuber. The parties stipulated that the amount of overpayment is $15,494.30. ALJ Stuber ordered the claimant to repay to the insurer the overpayment of $15,494.30
On appeal there appears to be no factual dispute between the parties. Instead, the claimant contends that TTD payments made by the insurer before the motion to terminate was granted do not constitute an overpayment as defined by the Workers’ Compensation
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Act. Therefore, the claimant argues the ALJ lacked authority to order him to repay those TTD benefits. We disagree.
As noted by the court in Simpson v. Industrial Claim Appeals Office 219 P.3d 354 (Colo. App. 2009), rev’d on other grounds Benchmark/Elite, Inc. v. Simpson 232 P.3d 777 (Colo. 2010), significant changes were made by the General Assembly in 1997 regarding overpayments. The General Assembly amended subsections (1) and (2)(a) of § 8-43-303 to permit reopening of an award on grounds of “fraud” and “overpayment,” in addition to the traditional grounds of error, a mistake, or change in condition. The 1997 amendments also provide that “no such reopening shall affect the earlier award as to moneys already paid except in cases of fraud or overpayment.” (Emphasis added). Further, the 1997 amendments added § 8-40-201(15.5), defining “overpayment” as:
[M]oney received by a claimant that exceeds the amount that should have been paid, or which the claimant was not entitled to receive, or which results in duplicate benefits because of offsets that reduce disability or death benefits payable under said articles [articles 40 to 47 of title 8]. For an overpayment to result, it is not necessary that the overpayment exist at the time the claimant received disability or death benefits. . . .
1997 Colo. Sess. Laws, vol. 1, ch. 45 at 112-16.
The 1997 legislation is designated as an act “concerning the recovery from claimants of workers’ compensation benefits to which such claimants are not entitled.” Ashley v. King Soopers, W. C. Nos. 4-573-332, 4-584-481 (October 28, 2004). In our view, the statute contemplates that in the case of overpayment such as that here, the ALJ has authority to remedy the situation Stroman v. Southway Services, Inc. W. C. No. 4-366-989 (August 31, 1999). This interpretation is consistent with the legislative intent of the 1997 amendments.
In essence, the claimant argues that when an admission results in an overpayment the insurer cannot retroactively withdraw or modify the admission and is bound thereby, at least until an ALJ enters an order as to prospective payments. The claimant appears to be arguing that retroactive reimbursement for an overpayment is prohibited. However, this argument was rejected by the Colorado Court of Appeals in Simpson v. Industrial Claim Appeals Office.
IT IS THEREFORE ORDERED that the ALJ Stuber’s order dated February 22, 2011 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D Paird
_______________________ Dona Rhodes
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DARREN HANEY, COLORADO SPRINGS, CO, (Claimant).
SHAW, STONE WEBSTER, BATON ROUGE, LA, (Employer).
ZURICH AMERICAN INSURANCE, Attn: KARL DIRKSMEYER, C/O: FARA INSURANCE SERVICES, HOUSTON, TX, (Insurer).
MCDIVITT LAW FIRM, PC, Attn: KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: JAMES R. CLIFTON, ESQ., PATTERSON ROAD, GRAND JUNCTION, CO, (For Respondents).
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