Industrial Commission v. Rowe

• Decision Date: 27 March 1967
• Docket Number: No. 22294,22294
• Citation: 425 P.2d 274,162 Colo. 248
• Parties: INDUSTRIAL COMMISSION of Colorado, Denver-Golden Corporation, and State Compensation Insurance Fund, Plaintiffs in Error, v. Elmer ROWE, Defendant in Error.
• Court: Colorado Supreme Court

Page 274

425 P.2d 274

162 Colo. 248

INDUSTRIAL COMMISSION of Colorado, Denver-Golden

Corporation, and State Compensation Insurance

Fund, Plaintiffs in Error, v. Elmer ROWE, Defendant in Error.

No. 22294.

Supreme Court of Colorado, En Banc.

March 27, 1967.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Alious Rockett, Harold Clark Thompson, Francis L. Bury, Feay Burton Smith, Jr., Richard T. Goold, Denver, for plaintiffs in error.

Edward J. Scheunemann, Denver, for defendant in error.

SUTTON, Justice.

This writ of error involves a claim filed April 24, 1964, under the Workmen's Compensation Act by Elmer Rowe, the defendant in error here.

Rowe had been employed by the Denver-Golden Corporation, one of the plaintiffs in error, as a foreman in its Schwartzwalder Uranium mine and claimed total disability from the occupational disease of silicosis. The referee awarded Rowe benefits of $11,400 under the escalator clause of C.R.S.1963, 8118--16. Five thousand dollars of the award was to be paid by respondents Denver-Golden Corporation and State Compensation Insurance Fund; the balance was to be paid from what is known as the Subsequent Injury Fund because the claimant had also previously worked in the mines of a different employer. The referee also made a finding that Rowe had begun to receive social security payments in the amount of $123 per month as of August 1, 1964, and that his weekly compensation rate should accordingly be reduced, under C.R.S.1963, 81--12--1(4), from $43.75 per week to $29.56 per week as of that date.

Denver-Golden Corporation and the State Compensation Insurance Fund thereafter petitioned the Industrial Commission to reduce the total aggregate compensation to be paid to Rowe porportionately with the reduced weekly compensation. The Commission thereupon, after hearing, by a vote of 2 to 1 reduced the total amount due from the two state funds and Denver-Golden Corporation from $11,400 to $7,959.94. It provided that denver-Golden and the Insurance Fund were to be responsible for $3,635.73 of this amount and that the balance of $4,324.21 was to be paid from the Subsequent Injury Fund. Rowe, being dissatisfied with the ordered reduction, appealed to the District Court with the result that the decision was reversed with orders to the Industrial Commission to reinstate the total amount of $11,400 initially awarded by the referee.

Since there is no dispute that this claimant is totally disabled by silicosis, the primary issue here is: Whether the maximum aggregate amount awarded Rowe under C.R.S.1963, 81--18--16 should have been reduced proportionately to the weekly compensation as the latter was reduced under C.R.S.1963, 81--12--1(4)?

The statute provides in pertinent part:

'(4) In cases where it is determined that periodic disability benefits granted by the federal old-age, survivors, and disability insurance act are payable to an individual, The weekly benefits payable pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to one-half such federal periodic benefits for such week.' (C.R.S.1963, 81--12--1(4)). (Emphasis added.)

In addition, C.R.S.1963, 81--18--16(2) provides for an increasing scale in the aggregate amount payable to one totally disabled from silicosis. This section provides for an award of $500 as of January 1, 1946, and thereafter the aggregate payable is to increase at a rate of $50 per month until a maximum of $13,693.75 (as provided for in C.R.S.1963, 81--18--15) is reached. As of March 27, 1964, the date on which claimant Rowe was determined to be totally disabled, the aggregate payable to him under this formula had reached $11,400, the amount awarded by the referee here.

Nowhere in the Workmen's Compensation Act is there a provision for a reduction of the Aggregate total award in cases in which a claimant is also receiving federal old-age or disability payments. The only statute applicable is C.R.S.1963, 81--12--1(4) which provides that the Weekly benefits payable shall be reduced in this type of case. Plaintiffs in error would, nevertheless, have us infer from the above quoted portion of C.R.S.1963, 81--12--1, that the aggregate awards as well as weekly benefits are to be reduced. They urge that it was the intent of the legislature to prohibit recovery by a claimant from more than one employer-financed plan, and that failure to reduce the aggregate total in this case would thwart legislative intent. And, they disregard entirely the statutory provision of C.R.S.1963, 81--18--16(2) which requires a formula payment to Rowe of $11,400 from Workmen's Compensation...