Opinion
W.C. No. 3-005-278
July 11, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which allowed the respondents to offset their liability for death benefits by the claimant's receipt of Social Security widow's benefits. We affirm.
In an order dated August 4, 1988, the claimant was awarded workers' compensation death benefits in connection with the death of her husband. Commencing November 1, 1989 the claimant began receiving federal Social Security widow's benefits.
In L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994), the Colorado Supreme Court held that federal social security widow's benefits are "periodic death benefits" within the meaning of former § 8-50-103 C.R.S. (1986 Repl. Vol. 3B). Thereafter, the respondents filed an admission of liability stating that commencing July 13, 1994, the claimant's death benefits would be offset by 100 percent of the claimant's Social Security widow's benefits. The claimant objected.
The ALJ concluded that pursuant to former § 8-50-103 and L.E.L. Construction v. Goode, supra, the respondents are entitled to reduce the workers' compensation death benefits by 100 percent of the claimant's Social Security widow's benefits. In so doing, the ALJ determined that the 1988 award of death benefits did not address the Social Security offset issue and reserved the issue for a future determination. Therefore, the ALJ concluded that the respondents are entitled to modify the claimant's death benefits effective July 13, 1994.
The claimant contends, inter alia, that the ALJ lacked jurisdiction to resolve the offset issue because the August 4 order was a "final order." Alternatively, the claimant contends that the respondents are not entitled to "unilaterally" and retroactively reduce her death benefits by her receipt of federal Social Security widow's benefits. We reject these arguments.
Admittedly an "award" which becomes "final" by the exhaustion of, or failure to exhaust review proceedings precludes further benefits unless there is an appropriate order to reopen 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 a benefit, constitutes an "award" for purposes of the reopening statutes currently codified in § 8-43-303 C.R.S. (1994 Cum. Supp.). Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994) cert. denied December 5, 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. See L.E.L Construction v. Goode, 849 P.2d 876 (Colo.App. 1992) rev'd on other grounds 867 P.2d 875 (Colo. 1994). Furthermore, an order which expressly reserves certain issues is not "final" as to the issues reserved, and therefore, does not "close" the claim. Brown Root, Inc. v. Industrial Claim Appeals Office, supra.
We have reviewed the ALJ's findings of fact and the 1988 order. Contrary to the claimant's contention, there is substantial evidence to support the ALJ's finding that the 1988 order did not address the offset for Social Security widow's benefits. The ALJ's findings of fact are consistent with the plain language of the 1988 order, and therefore, must be upheld. See Findings of Fact 6, 7, 9; Conclusions of Law 4; section 8-43-301(8), C.R.S. (1994 Cum. Supp.); Brown Root, Inc. v. Industrial Claim Appeals Office, supra.
Furthermore, we agree with the respondents that the reference in the 1988 order to "social security benefits" pertains to benefits paid to the claimant's husband between the date of his original industrial injury and his death. This is buttressed by the factual stipulation that the claimant was not awarded widow's benefits until November 1989.
Moreover the claimant concedes that the 1988 order expressly reserved, for future determination, all issues not resolved in the order. Under these circumstances the 1988 order did not close the claim as to the respondents' right to an offset against the claimant's workers' compensation death benefits by the claimant's federal social security widow's benefits. Therefore, the ALJ's jurisdiction to address the offset issue was not dependent upon an order "reopening" the claim, and the claimant's remaining arguments in this regard are without merit.
Next, the claimant contends that L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994) is not applicable to this claim. The claimant argues that the law in effect at the time of her husband's death, did not provide an offset against widow's benefits. We disagree.
The claimant concedes that the claim is governed by former § 8-50-103 C.R.S. (1986 Repl. Vol. 3B) which provided, in pertinent part, that:
"[I]n cases where it is determined that periodic death benefits granted by the federal old age, survivors, and disability insurance act or a worker's compensation act of another state or of the federal government are payable to an individual and his dependents, the aggregate benefits payable for death pursuant to this section shall be reduced, but no below zero, by the amount equal to one hundred percent of such periodic benefits."
In L.E.L. Construction v. Goode, 867 P.2d 878, the Supreme Court concluded that former § 8-50-103 creates an offset of federal social security mother's and widow's benefits against death benefits. Accordingly, L.E.L. Construction v. Goode, 867 P.2d 875, 878 (Colo. 1994), reflects the Supreme Court's conclusion that the law which governs this claim did provide an offset on account of federal social security widow's benefits, and has been applied consistent with this conclusion. See Rosa v. Industrial Claim Appeals Office, 885 P.2d 331 (Colo.App. 1994) ( L.E.L governs offset in 1987 death claim).
Lastly, we reject the claimant's contention that the respondents were not entitled to assert the offset without a hearing, and therefore, the ALJ erred in allowing the respondents to take the offset commencing July 13. In granting the offset retroactive to the date of the respondents' July 13 admission of liability, the ALJ relied upon the cases of Gregory v. Crown Transportation, 776 P.2d 1163 (Colo.App. 1989), and Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
In Gregory, the court held that a petition to modify was not a prerequisite to an insurer's offset against social security disability benefits. We agree with the ALJ that under circumstances, such as presented here, where the offset issue is not governed by the reopening statutes, Gregory allows the insurer to assert a social security benefit offset by the filing an admission of liability. Compare Baca v. Summit Pressed Brick Tile, W.C. No. 3-596-325, October 12, 1994.
Further, we note that in Johnson v. Industrial Commission, 761 P.2d 1145, the court upheld an order allowing a retroactive offset of social security disability benefits based upon the insurer's filing of an admission of liability. In so doing, the Johnson 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." Johnson v. Industrial Commission, 761 P.2d 1144. Therefore, Johnson implicitly authorizes the ALJ to grant a retroactive offset.
We are mindful of the fact that Gregory involved workers' compensation benefits paid for permanent total disability and Johnson involved an award of permanent partial disability benefits. However, we know of no authority, and the claimant cites none, in support of her contention that the principles established in Gregory and Johnson do not apply to an offset against workers' compensation death benefits. Therefore, we are not persuaded that this matter is distinguishable.
Because the courts have interpreted the statute to allow the insurer to assert a social security offset by the filing of an admission of liability, the ALJ did not err in granting the offset retroactive to the respondents' July 13, 1994 admission of liability. Consequently, it is immaterial whether the Rules of Procedure Part IX(E), 7 Code Colo. Reg. 1101-3 at 36 (1993) also allow the respondents to assert the offset in this manner. Therefore, we need not address the claimant's arguments concerning the application of Rule IX(E).
IT IS THEREFORE ORDERED that the ALJ's order dated March 8, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill WhitacreNOTICE
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. (1994 Cum. Supp.).
Copies of this decision were mailed July 11, 1995 to the following parties:
Emily O. Harper, P.O. Box 1166, Pinehurst, ID 83850-1166
Motor Cargo, 3888 E. 45th Ave., Denver, CO 80216
Colorado Compensation Insurance Authority, Attn: Legal Department (Interagency Mail)
Eliot J. Wiener, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
Keith Tempel, Esq., 3200 Cherry Creek Drive South, #680, Denver, CO 80209 (For the Claimant)
BY: _______________________