Opinion
W.C. No. 4-149-019
May 9, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) dated August 27, 1996, as corrected on October 1, 1996, which granted an offset in accordance with § 8-42-103(1)(e), C.R.S. (1996 Cum. Supp.). We affirm.
Section 8-42-103(1)(e), provides that:
"In cases where it is determined that periodic disability benefits are payable to an individual and said individual's dependents pursuant to a workers' compensation act of another state or of the federal government, the aggregate benefits payable for temporary total disability, temporary partial disability, permanent partial disability and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal to the benefits payable pursuant to such other workers' compensation act."
The respondents requested to offset their liability for temporary total disability benefits based upon the following stipulated facts. The claimant suffered compensable injuries to his neck and upper back on August 18, 1992 while working for the Minerex Corporation. The respondents admitted liability for temporary total disability benefits at the rate of $373.33 per week for the periods, September 4, 1992 through October 4, 1992; and December 1, 1992 through March 3, 1996.
On November 15, 1992, the claimant suffered a work-related injury to his wrists while working for a Utah employer. As a result, the claimant received temporary total disability benefits under the workers' compensation laws for the State of Utah at the rate of $401 per week, for the period June 18, 1993 through February 27, 1996.
In July 1994 the claimant requested an expedited hearing on the issues of medical and temporary disability benefits. On September 12, 1994, the ALJ determined that the claimant had not achieved maximum medical improvement (MMI), and awarded continuing temporary total disability benefits retroactive to February 15, 1993.
Thereafter, the respondents filed a General Admission of Liability dated May 1, 1995, in which they asserted an offset against the claimant's receipt of temporary total disability benefits from the State of Utah. The claimant objected, and argued that § 8-42-103(1)(e) is not applicable to this claim. The claimant also asserted that the respondents are equitably estopped from asserting the offset.
The ALJ rejected the claimant's arguments and found that, although the claimant suffered two industrial injuries, he only sustained "one wage loss." The ALJ also determined that the claimant's receipt of concurrent temporary total disability benefits from Colorado and Utah resulted in a double recovery for the same wage loss. Therefore, the ALJ concluded that under § 8-42-103(1)(e) the respondents are entitled to offset their liability for temporary total disability benefits by the claimant's receipt of temporary total disability benefits for the Utah claim.
I.
On review, the claimant renews the arguments he made before the ALJ. First, the claimant contends that § 8-42-103(1)(e) [formerly 8-51-101(1)(e), C.R.S. (1986 Repl. Vol. 3B)], does not apply where, as here, the claimant receives disability benefits for multiple industrial injuries. In support, the claimant cites Circle K. Corp. v. Industrial Claim Appeals Office, 809 P.2d 1116 (Colo.App. 1991), in which the court denied an offset of federal compensation benefits against permanent partial disability benefits where the benefits were awarded for separate industrial injuries. The ALJ determined that Circle K is inapposite, and we agree.
The claimant in Circle K received permanent partial disability benefits under the Colorado Workers' Compensation Act for a 1985 industrial back injury, and federal workers' compensation benefits for permanent partial disability caused by a 1987 industrial back injury. The Court of Appeals recognized that the predecessor to § 8-42-103(1)(e) was designed to prevent duplication of benefits for the "same disabling injury." 809 P.2d at 1117. However, the court concluded that the claimant did not receive a double recovery for the "same disabling injury" because the federal workers' compensation benefits only compensated the claimant for a loss of earning capacity caused by the 1987 injury, and the Colorado benefits only compensated the claimant for disability caused by the 1985 injury. 809 P.2d at 1118. Therefore, the court held that no offset was available under the statute.
However, this claim involves the receipt of duplicate benefits for "temporary total disability," and not "permanent partial disability." Therefore, Circle K is not dispositive of the respondents' right to an offset.
Temporary and permanent disability benefits are similar in that they both compensate the claimant for a loss of earning capacity. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). However, they do not compensate for the same loss. Temporary disability benefits are designed to replace the claimant's actual lost wages during the period he is recovering from the industrial injury. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Mesa Manor v. Industrial Claim Appeals Office, 881 P.2d 443 (Colo.App. 1994). In contrast, permanent disability benefits compensate the claimant for a future loss of earning capacity. Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995). It follows that Circle K does not involve the same type of benefit at issue in this claim.
Furthermore, an injured worker cannot suffer more than a total wage loss. Accordingly, in the context of temporary disability an injured work cannot lose more than one hundred percent of his actual wages, regardless of the number of industrial injuries which contribute to that disability. It follows that where a claimant has been awarded temporary total disability benefits, a second award of temporary total disability benefits necessarily compensates the claimant for the same wage loss.
In contrast, a permanently "partially" disabled worker is presumed to retain some earning capacity. Consequently, Circle K is not instructive on the scope of section 8-42-103(1)(e) where the claimant receives multiple awards for "total" disability. Therefore, we do not consider the claimant's further arguments based upon Circle K.
II.
Next, because this matter involves benefits for temporary total disability, we reject the claimant's contention that the ALJ erred in finding "only one wage loss." In reaching this conclusion we note the claimant's mistaken reliance on Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988), for the proposition that the term "one wage loss" refers to the wage loss from a "single injury."
In Johnson the workers' compensation carrier sought to offset its liability for temporary total disability benefits by the claimant's receipt of federal social security disability benefits. It so happened that the claimant in Johnson suffered a "single" industrial injury, which resulted in only "one wage loss." However, we are unable to locate any language in Johnson which suggests that an injured worker suffers more than "one wage loss" if the injured worker's temporary total disability is the result of more than one industrial injury.
III.
Nevertheless, the claimant points out that § 8-42-103(1), C.R.S. (1996 Cum. Supp.) [formerly § 8-51-101(1), C.R.S. (1986 Repl. Vol. 3B)] refers to the claimant's entitlement to temporary disability benefits for "the injury." Consequently, the claimant contends that the statute only contemplates an offset where the claimant receives duplicate benefits for a single industrial injury. We are not persuaded.
As argued by the claimant, § 8-42-103(1) sets forth the claimant's general right to recover temporary disability benefits for "the injury." However, § 8-42-103(1) expressly states that the right to disability benefits is "subject to" the limitations in subsections (1)(a) through (1)(f). Furthermore, as we stated above, subsection 8-42-103(1)(e) contemplates a limitation of the claimant's temporary disability benefits when the claimant receives concurrent awards of temporary total disability benefits from separate industrial injuries.
Moreover, the claimant's argument ignores the fact that the temporary total disability benefits awarded on the Colorado and Utah claims are duplicate payments under the same wage loss protection system. See L.E.L Construction v. Goode, 867 P.2d 875 (Colo. 1994). The following language in L.E.L. is particularly instructive.
"Once it is recognized that workmen's compensation is one unit in an overall system of wage-loss protection, rather than something resembling a recovery in tort or on a private accident policy, the conclusion follows that duplication of benefits from different parts of the system should not ordinarily be allowed."
IV.
The claimant further asserts that his dependents did not receive benefits from the State of Utah, and argues that § 8-43-103(1)(e) is expressly limited to circumstances where the claimant and his "dependents" are receiving periodic disability benefits from another state.
The claimant did not raise this argument before the ALJ. Therefore, we shall not consider the argument for the first time on appeal. See Broadmoor Hotel v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA014, August 22, 1996); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
V.
Alternatively, the claimant argues that insofar as he suffered only "one wage loss" the offset should be apportioned between the Utah and Colorado injuries based upon the extent to which each injury contributed to the claimant's temporary total disability. We disagree.
As the ALJ expressly recognized, and the claimant concedes, the apportionment statute currently codified in § 8-42-104(2), C.R.S. (1996 Cum. Supp.) does not apply to temporary total disability benefits. Furthermore, the plain and obvious meaning of the offset statute does not support the claimant's argument. Section 8-42-103(1)(e) states that the offset shall be equal to "the benefits payable pursuant to such other workers' compensation act." Therefore, we do not address the claimant's contention that public policy considerations compel a contrary construction of the statute. Ihnen v. Western Forge, ___ P.2d ___ (Colo.App. No. 96CA0819, March 20, 1997) (where plain and ordinary meaning of the statute is unambiguous, it is binding and there is no need to resort to the other rules of statutory construction).
VI.
Next, the claimant contends that insofar as § 8-42-103(1)(e) is applicable, the respondents "waived" their right to assert the offset. The ALJ was not persuaded by this argument, and we perceive no basis to interfere with her determination.
Waiver "is the intentional relinquishment of a known right." Johnson v. Industrial Commission, 761 P.2d at 1147. Waiver may be explicit or implicit, but must be based upon "full knowledge of all the relevant facts." Johnson v. Industrial Commission, supra.
Here, the ALJ rejected the claimant's contention that his July 1994 Motion for an Expedited Hearing notified the respondents that he was receiving duplicate disability benefits from the State of Utah. To the contrary, the ALJ found that the respondents did not have adequate notice until receipt of the claimant's interrogatory responses dated March 22, 1995. Therefore, the ALJ was not persuaded that the respondents waived the offset by failing to assert it prior to the entry of the September 12 award of temporary total disability benefits. The ALJ also determined that the respondents did not delay in asserting the offset after receiving notice on March 22, 1995.
The claimant's arguments notwithstanding, the ALJ's findings are supported by substantial, albeit conflicting, evidence in the record. Thus, they must be upheld. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Further, the ALJ's findings support her determination that the respondents did not waive their right to an offset. Johnson v. Industrial Commission, supra.
VII.
Moreover, we must uphold the ALJ's determination that the claimant failed to sustain his burden to prove that the respondents are equitably estopped from asserting the offset. To establish equitable estoppel the claimant must prove four elements. The elements are: (1) the party to be estopped must know the relevant facts; (2) the party to be estopped must also intend that its conduct be acted on or must so act that the party asserting the estoppel has a right to believe the other party's conduct is so intended; (3) the party asserting the estoppel must be ignorant of the true facts; (4) the party asserting the estoppel must detrimentally rely on the other party's conduct. Johnson v. Industrial Commission, 761 P.2d at 1146.
The ALJ determined that the claimant failed to sustain his burden of proof. The ALJ found that the claimant did not present evidence that the respondents intended their failure to appeal the September 12 order or assert the offset before May 1995 to be acted on, or in fact acted such that the claimant had a right to believe the respondents conduct was so intended. The ALJ also found that claimant relied upon statements by his attorney and not the respondents' conduct when spending the duplicate benefits he received. Further, the ALJ determined that the claimant's reliance, if any, on the respondents' failure to assert the offset was unreasonable since the claimant failed to establish that the respondents knew he was receiving temporary total disability benefits from the State of Utah before March 1995, and the respondents never told the claimant that they were waiving their right to an offset.
These findings are supported by substantial evidence and the ALJ's plausible inferences from the evidence. Furthermore, these findings support the ALJ's conclusion that the claimant failed to sustain his burden of proof to apply the doctrine of equitable estoppel.
VIII.
Moreover, the claimant argues that the ALJ erred in allowing the respondents to assert the offset retroactively from June 18, 1993. The claimant contends that the respondents are not entitled to an offset for benefits paid prior to the final order of September 12, 1994. We disagree.
As argued by the claimant, a final award of benefits may not be modified in the absence of an appropriate order reopening the proceedings. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991). An order resulting from a contested hearing, which addresses benefits and which grants or denies benefits, constitutes an "award" for purposes of the reopening statutes. Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994). However, the determination of whether an "award" has closed a particular issue requires analysis of the nature of the issues addressed by the award. L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992) rev'd on other grounds 867 P.2d 875 (Colo. 1994).
The ALJ's September 12 order was an open ended award of temporary disability benefits. The ALJ ordered the respondents to pay ongoing temporary total disability benefits from February 15, 1993 "until such time the Claimant has reached MMI or the Respondents are relieved from paying temporary disability benefits, pursuant to statute." In view of the ALJ's reference to MMI, the ALJ implicitly left the claim open for a future determination of other issues such as the claimant's entitlement to disability benefits after MMI. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995) (MMI determines end of temporary disability and beginning of permanent disability). Consequently, the respondents were not required to reopen the claim before asserting their offset.
Moreover, the ALJ was not precluded from granting the offset against benefits paid prior to May 1, 1995. In Johnson v. Industrial Commission, supra, the Supreme Court allowed the insurer to offset the claimant's social security benefits prior to the date the insurer actually asserted the offset. See also Cody v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0485, October 24, 1996) (upheld retroactive offset of social security disability benefits based on Johnson v. Industrial Commission, supra.). In so doing the court stated that "there is nothing in the language or structure of Colorado's worker's compensation legislation that limits the insurer's claim of offset only to benefits payable prospectively from the date on which the offset is claimed." 761 P.2d at 1144. However, insofar as the offset resulted in a prior overpayment of workers' compensation benefits, the court limited the insurer's remedy to a reduction of future benefits. 761 P.2d at 1145;
The claimant's remaining arguments have been considered and are unpersuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated October 1, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE 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, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed May 9, 1997 to the following parties:
Bill Clymer, 208 Victor Ave., Victor, CO 80860
Lloyd Quinn, Minerex, P.O. Box 470, Mt. Vernon, IN 47620
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Gordon J. Williams, Esq., 559 E. Pikes Peak Ave., Ste. 203, Colorado Springs, CO 80903 (For the Claimant)
Ronald H. Nemirow, Esq., 1660 Wynkoop St., #900, Denver, CO 80202-1197 (For the Respondents)
BY: ____________________________