MTR. OF THE CLM. OF FRANCIS v. THE PETRO., W.C. No. 4-778-573 (10/20/2010)


IN THE MATTER OF THE CLAIM OF HAROLD FRANCIS, Claimant, v. THE PETROLEUM PLACE, INC., and Employer, TRAVELERS INDEMNITY COMPANY OF COLORADO, Insurer, Respondents.

W.C. No. 4-778-573.Industrial Claim Appeals Office.
October 20, 2010.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Broniak (ALJ) dated June 4, 2010, that ordered payment of temporary total disability (TTD) benefits without an offset for long term disability (LTD) benefits received by the claimant. We affirm.

The claimant sustained a compensable injury on November 15, 2008 and was entitled to TTD benefits. The employer provided a LTD policy. The LTD policy provided that the total monthly disability benefits are to be reduced by the amounts received as workers’ compensation benefits. The ALJ, citing § 8-42-103(1)(d)(I)(B) C.R.S. determined that the respondents have failed to establish that they were entitled to an offset the amount of the LTD payments against the TTD benefits owed to the claimant.

It is provided in § 8-42-103(1)(d)(I)(B) as follows:

Where the employer pension or disability plan provides by its terms that benefits are precluded thereunder in whole or in part if benefits are awarded under articles 40 to 47 of this title, the reduction provided in this paragraph (d) shall not be applicable to the extent of the amount so precluded.

Here, there appears to be no dispute, and in any event the ALJ found on substantial evidence, that the LTD policy provides that LTD benefits are precluded to the extent the claimant receives corresponding workers’ compensation benefits.

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We recognize that § 8-42-103(1)(d)(I) creates a reduction in the aggregate indemnity benefits payable for workers’ compensation based on periodic disability benefits payable under an employer financed pension or disability plan. However, this offset is subject to the limitation contained in § 8-42-103(1)(d)(I)(B). Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714,717 (Colo. App. 1984).

We further recognize, as contended by the respondents, that subsection (1)(d)(I) is designed to prevent a “double recovery” of benefits where the employer has purchased a disability plan and is liable for workers’ compensation benefits to compensate the claimant for a work-related injury. Spanish Peaks Mental Health Center v. Huffaker, 928 P.2d 741 (Colo. App. 1996). However, if the pension or disability plan by its terms precludes payment to the extent workers’ compensation benefits are available, subsection (1)(d)(I)(B) nullifies the offset by providing that no reduction of workers’ compensation benefits is permitted Masdin v. Gardner-Denver-Cooper Industries, Inc., supra, Gonzales v. City of Fort Collins, W. C. No. 4-365-220 (August 05, 2004) (where entitlement to LTD benefits was reduced because of receipt of workers’ compensation benefits the employer not entitled to any offset against workers’ compensation benefits).

The ALJ relied upon Masdin v. Gardner-Denver-Cooper Industries, Inc. and the respondents have not offered any basis upon which to distinguish the case. In our view Masdin v. Gardner-Denver-Cooper Industries, Inc., and Gonzales v. City of Fort Collins are dispositive.

IT IS THEREFORE ORDERED that the ALJ’s order dated June 4, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

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HAROLD FRANCIS, EVERGREEN, CO, (Claimant).

TRAVELERS INDEMNITY COMPANY OF COLORADO, Attn: RENESSA JENSEN, DENVER, CO, (Insurer).

THE ELEY LAW FIRM, Attn: DANIEL B. GALLOWAY, ESQ., DENVER, CO, (For Claimant).

THOMAS, POLLART MILLER, LLC, Attn: GLEN GOLDMAN, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).

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