Durocher v. Industrial Claim Appeals Office of State of Colo., s. 94CE0024

Decision Date18 May 1995
Docket Number94CE0025,Nos. 94CE0024,s. 94CE0024
Citation905 P.2d 4
PartiesJoseph C. DUROCHER, Petitioner and Cross-Appellee, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Department of Revenue, and Colorado Compensation Insurance Authority, Respondents and Cross-Appellants. . IV
CourtColorado Court of Appeals

Gerlach & Weddell, P.C., Dale A. Gerlach, Colorado Springs, for petitioner and cross-appellee.

Carolyn A. Boyd, Michael J. Steiner, Curt Kriksciun, Denver, for respondents and cross-appellants, Dept. of Revenue and Colorado Compensation Ins. Authority.

Opinion by Judge NEY.

Joseph C. Durocher (claimant) seeks review of the decision of the Industrial Claim Appeals Panel (panel) which allowed Colorado Department of Revenue and Colorado Compensation Insurance Authority (collectively CCIA) to offset claimant's receipt of Public Employees Retirement Association (PERA) disability benefits against claimant's medical impairment benefits. CCIA on cross appeal contends the panel erred in determining all effects of an industrial injury are to be rated in accordance with § 8-42-107(8)(c), C.R.S. (1994 Cum.Supp.) when it is determined that the injury caused at least one impairment measured as a whole person. We affirm the Panel's order.

Claimant sustained admitted compensable injuries to his lower back, hip, and knee. The Administrative Law Judge (ALJ) found that the treating physician rated claimant's impairment from the lower back and hip injuries as 25% of the whole body and that claimant's injury to the right knee amounted to 2% impairment to the whole person which was adopted in the 25% impairment rating. The ALJ also allowed CCIA to offset the medical impairment benefits by the claimant's receipt of PERA disability benefits.

Claimant then filed a petition to review, and the panel modified the ALJ's order to award payment of medical impairment benefits based upon a whole person impairment of 27% for claimant's injuries. The panel determined that when a claimant suffers one or more impairments which do not appear as scheduled losses pursuant to § 8-42-107(2), C.R.S. (1994 Cum.Supp.), the claimant is entitled to have his total impairment from a single industrial accident measured as impairment of the whole body, and accordingly, is entitled to be compensated in accordance with § 8-42-107(8), C.R.S. (1994 Cum.Supp.). The panel further agreed that CCIA was entitled to an offset for PERA benefits received by claimant as provided by § 8-42-103(1)(d), C.R.S. (1994 Cum.Supp.).

Claimant now repeats his argument that the ALJ and the panel erred in allowing CCIA to offset its liability for the medical impairment benefits by his receipt of PERA disability benefits. Claimant argues that the provisions of Colo.Sess.Laws 1991, ch. 219, § 8-42-107 operated to repeal "permanent partial disability benefits" and replace them with "medical impairment benefits." Claimant concludes that because § 8-42-103(1)(d) does not expressly state that "medical impairment benefits" are susceptible to an offset for disability benefits payable to an employee under the provisions of a disability plan financed in whole or in part by the employer, the statute thus does not contemplate an offset against medical impairment benefits. We disagree.

The statutory language currently codified as § 8-42-103(1)(d)(I), C.R.S. (1994 Cum.Supp.) provides that:

In cases where it is determined that periodic disability benefits are payable to an employee under the provisions of a pension or disability plan financed in whole or in part by the employer, hereinafter called "employer pension or disability plan", 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 as nearly as practical to such employer pension or disability plan benefits....

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  • In the Matter of Claim of Montoya v. Kaiser-Hill Company, LLC, W.C. No. 4-633-835 (CO 4/26/2006), W.C. No. 4-633-835
    • United States
    • Colorado Supreme Court
    • 26 Abril 2006
    ...would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo. App. 1995). Under this standard of review it is the ALJ's sole prerogative to evaluate the credibility of the witnesses an......
  • In the Matter of Claim of Marsh v. City of Arvada, W.C. No. 4-650-300 (CO 4/26/2006), W.C. No. 4-650-300
    • United States
    • Colorado Supreme Court
    • 26 Abril 2006
    ...would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo. App. 1995). Under this standard of review it is the ALJ's sole prerogative to evaluate the credibility of the witnesses an......
  • Mountain City Meat Co. v. Oqueda
    • United States
    • Colorado Supreme Court
    • 24 Junio 1996
    ...94CA1992, (Colo.App. May 4, 1995) (not selected for official publication); Durocher v. Industrial Claim Appeals Office & Department of Revenue & Colorado Compensation Insurance Authority, 905 P.2d 4 (Colo.App.1995); and Monachelli v. Industrial Claim Appeals Office & Heating & Plumbing Engi......
  • Waymire v. Industrial Claim Appeals Office of State of Colo.
    • United States
    • Colorado Court of Appeals
    • 2 Mayo 1996
    ...categorizes permanent partial disability benefits as "schedule injuries" or "medical impairment benefits." Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App.1995); see also Askew v. Sears Roebuck & Co., 914 P.2d 416 Furthermore, we agree with the Panel that claimant's argume......
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