Opinion
W.C. No. 3-814-784
January 18, 1996
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Friend (ALJ Friend) dated April 14, 1995. The respondents contest the order insofar as ALJ Friend denied their request to offset the claimant's workers' compensation death benefits by her receipt of Social Security (SS) widow's benefits between June 23, 1994 and November 14, 1994. We set aside the order and remand for entry of a new order.
This matter was previously before us. On May 9, 1995, we affirmed an order of Administrative Law Judge Rumler (ALJ Rumler) which determined that the offset issue was closed by virtue of a 1987 award of workers' compensation death benefits, and that the respondents were precluded from offsetting the claimant's SS widow's benefits in the absence of a petition to reopen. The respondents did not appeal our order.
On November 14, 1994, subsequent to ALJ Rumler's order, the respondents filed a petition to reopen the claim, alleging mistake of law and citing L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994) (widow's benefits constitute periodic federal death benefits subject to offset). The respondents applied for a hearing and sought permission to offset their liability for workers' compensation death benefits by the claimant's receipt of SS widows' benefits effective June 23, 1994.
ALJ Friend determined that ALJ Rumler's order constituted the law of the case. ALJ Friend also found, in view of L.E.L. Construction v. Goode, supra, that there was a mistake of law in the 1987 award which justified reopening the claim. However, ALJ Friend determined that "no fraud was alleged or proven." Therefore, ALJ Friend denied the respondents' request to assert the SS offset prior to November 18, 1994.
On review, the respondents renew their contention their are entitled to the SS offset without the filing of a petition to reopen. We reject this argument.
Our May 1995 order details the analysis we relied upon in affirming ALJ Rumler's determination that a petition to reopen was a procedural prerequisite to the respondents' offset. Furthermore, we are not persuaded to reconsider our determination. See Baca v. Summit Pressed Brick Tile, W.C. No. 3-596-325, October 12, 1994, aff'd Summit Pressed Brick Tile v. Baca, Colo App. No. 94CA1857, November 30, 1995 (not selected for publication) (order awarding death benefits subject to offset is an "award" and petition to reopen is necessary to modify offset). Therefore, we adhere to our conclusion that the filing of a petition to reopen the claim was a procedural prerequisite to the offset of the claimant's SS widows' benefits.
Next, the respondents contend that ALJ Friend erred in failing to allow them to assert the offset commencing June 23, 1994. We conclude that ALJ Friend's findings of fact are insufficient to permit appellate review of the respondents' contention. Therefore, we must set aside the order and remand for additional findings and the entry of a new order. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
The Workers' Compensation Act does not preclude the retroactive offset of SS benefits. See Wilson v. Jim Snyder Drilling, 747 P.2d 647 (1987). To the contrary, § 8-43-303(1), C.R.S. (1995 Cum. Supp.) [formerly § 8-53-113 C.R.S. (1986 Repl. Vol. 3B)], provides, in pertinent part, that where an order is reopened "compensation and medical benefits previously ordered may be ended, diminished, maintained, or increased" as long as the reopening does not "affect the earlier award as to moneys already paid."
Accordingly, we have previously concluded that upon reopening a claim, the ALJ may grant a "retroactive" offset as long as it does not require the claimant to return previously received workers' compensation benefits to the respondents. Davis v. Mulberry Inn, Inc., W.C. No. 3-949-781, November 16, 1995 ; Hollandsworth v. Precision Paving, W.C. No. 3-785-482, February 10, 1995; Renz v. Larimer County School District Poudre R-1, supra; see also Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995). Our conclusion was based, in part upon Morrison v. Clayton Coal Co., 116 Colo. 501, 181 P.2d 1011 (1947) where the court stated that:
"[The statute] contains no restriction as to finding a change of time of disability, or extent of disability, from that originally found, but only the limitation that they shall not affect `moneys already paid.' The prior award determined that the moneys already paid were the property of the claimant. One way in which those particular moneys could be affected by the review would be by the finding that those moneys were not the property of the claimant, but must be returned to the insurer."
We also noted Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988), where the Supreme Court held that it is permissible to allow an offset for social security benefits prior to the time the respondents actually asserted the offset. Although Johnson did not involve a reopening, the court also suggested that recovery of overpaid benefits would not affect "moneys already paid" if the respondents recovered the benefits by reducing future benefits.
Here, the ALJ's findings are insufficient for us to ascertain the basis of ALJ Friend's order denying the respondents' request for a retroactive offset. However, insofar as the ALJ denied the request based upon his determination that ALJ Rumler's order was the "law of the case" concerning the respondents' obligation to pay workers' compensation death benefits up to November 18, 1994, his determination is not consistent with the reopening statutes.
Further, it is true that where a retroactive offset results in an overpayment of workers' compensation benefits, the respondents are limited to a reduction of future benefits to recover the overpayment. Johnson v. Industrial Commission, supra. Moreover, it is the within the ALJ's discretion to fashion the recovery method which is warranted by the particular facts of the claim, including the absence of fraud or economic hardship which may result to a party. See Louisiana Pacific Corporation v. Smith, 881 P.2d 456 (Colo App. 1994). However, we know of no authority, and the claimant cites none, in support of ALJ Friend's determination that the absence of "fraud" is dispositive of the respondents' request to assert the SS offset prior to the date of the filing of their petition to reopen.
Here, it is unclear whether the ALJ's findings concerning the absence of fraud pertain to his determination that the respondents are not entitled to a retroactive offset, or a determination that the respondents are not entitled to recover overpaid benefits resulting from a retroactive offset. However, the absence of fraud does not preclude a retroactive offset.
On remand the ALJ must make additional findings which resolve the pertinent issues, and shall enter a new order concerning the respondents' assertion of an offset prior to November 18, 1994.
IT IS THEREFORE ORDERED that the order of ALJ Friend dated April 14, 1995, is set aside, insofar as the ALJ denied the offset prior to November 18, 1994, and the matter is remanded to ALJ Friend for the entry of a new order on this issue, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed January 18, 1996 to the following parties:
Erma Wray, 4605 Routt St., Wheat Ridge, CO 80033
Colorado Department of Highways, 4201 E. Arkansas Ave., Denver, CO 80222
Colorado Compensation Insurance Authority, Attn: P. Tochtrop, Esq., — Interagency Mail
Andrew R. Bantham, Esq., 999 18th St., Suite 3100, Denver, CO 80202
Richard T. Goold, Esq., 1017 S. Gaylord St. Denver, CO 80209 (For the Claimant)
BY: _______________________