Opinion
No. 82CA0026
Decided July 8, 1982. Rehearing denied August 5, 1982. Certiorari granted October 25, 1982.
Review of Order of the Industrial Commission of the State of Colorado
Hall and Evans, Frederic A. Ritsema, for applicant-appellant.
Zarlengo, Mott and Zarlengo, Albert E. Zarlengo, Jr. for respondents-appellees Hartford Accident and Indemnity Company and Mobile Premix Concrete, Inc.
J. D. MacFarlane, Attorney General, Alice L. Parker, Assistant Attorney General, for respondents-appellees Industrial Commission and Charles McGrath.
Division II.
Workers' compensation claimant, Alvin Engelbrecht, seeks review of an order of the Industrial Commission which allows the insurer, Hartford Accident and Indemnity Company, to increment the credit it receives against claimant's disability benefits as claimant's social security benefits are increased by cost-of-living adjustments. We affirm.
The facts are not in dispute. The claimant was injured in the course and scope of his employment and received permanent total disability benefits. The March 20, 1979 order which found the claimant entitled to maximum disability payments, also stated that these benefits were "subject to an offset for the Social Security Administration Disability Benefits . . ." and the compensation was to be "adjusted periodically in the future for Federal Social Security offset changes for the natural life of the claimant." This order was not appealed.
Subsequent to that order, the claimant requested and was granted a lump sum award. The claimant was granted a lump sum of $26,292, and the insurer was ordered to pay the balance of benefits due at the monthly rate of $315.44 until the claimant reached the age of 65 and $563.22 thereafter. The claimant began receiving social security benefits at the monthly rate of $445.70. Because of cost-of-living adjustments, these benefits have periodically increased to $512.70. The Industrial Commission has determined that the insurer is entitled to increase its credit as the social security benefits rise and it is this decision for which review is sought.
The claimant argues that § 8-51-101(1)(c), C.R.S. 1973, does not permit the insurer to increase its social security credit as social security benefits rise. Such an argument was advanced in Dailey v. Industrial Commission, 651 P.2d 1223 (Colo.App. 1982). In Dailey we held that social security cost-of-living benefits may be offset against a worker's compensation benefits. That case is dispositive here. This procedure is to be followed, even if, as predicted by the claimant, by 1988 the insurer will have to pay nothing. See Meyer v. Industrial Commission, 644 P.2d 46 (Colo.App. 1981).
The claimant further argues that even if the social security offset is permitted to rise with the cost of living, the lump sum award in this case requires that no further credit be taken. We disagree.
Here, the lump sum payment is a substitute for periodic payments. Therefore, the reason for applying the offset in Dailey is applicable. See 4 A. Larson, Workmen's Compensation Law § 97.34 (1981). Furthermore, in Thornton v. Teeter, 37 Colo. App. 427, 548 P.2d 133 (1976), we held that when there is a lump sum payment, the "aggregate amount" is to be reduced by the social security offset pursuant to § 8-51-101(1)(c), C.R.S. 1973.
Order affirmed.
JUDGE PIERCE concurs.
JUDGE STERNBERG dissents.