Johnson v. Industrial Com'n of State, 85CA1622
| Decision Date | 18 September 1986 |
| Docket Number | No. 85CA1622,85CA1622 |
| Citation | 732 P.2d 1236 |
| Parties | Richard E. JOHNSON, Petitioner, v. The INDUSTRIAL COMMISSION OF the STATE of Colorado; Mike L. Baca and Gary B. Rose, as members of the Industrial Commission of Colorado; Charles McGrath, Director of the Division of Labor; Patricia Jean Clisham, a hearing officer of the Department of Labor and Employment; Lovett Ski Corporation; and State Compensation Insurance Fund, Respondents. . III |
| Court | Colorado Court of Appeals |
French & Stone, P.C., Mark M. Haynes, Boulder, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Michael J. Steiner, Asst. Atty. Gen., Denver, for respondents Industrial Com'n, Mike L. Baca, Gary B. Rose, Charles McGrath and Patricia Jean Clisham.
Pamela L. Musgrave, Denver, for respondents State Compensation Ins. Fund and Lovett Ski Corp.
Richard E. Johnson (claimant) seeks review of a final order of the Industrial Commission which permitted State Compensation Insurance Fund and Lovett Ski Corporation (respondents) to offset from his aggregate workmen's compensation benefits, one-half the amount of social security disability benefits received by claimant and his dependents. We affirm.
Claimant was injured in October 1978. Respondents admitted liability and paid temporary disability benefits intermittently until April 1982. In April 1979, claimant began receiving social security disability benefits in addition to workmen's compensation. The social security benefits continued until March 1984, with the exception of one year in the interim, when the benefits were terminated.
In May 1982, pursuant to § 8-51-101(1)(c), C.R.S., respondents claimed an offset equal to one-half the amount of social security benefits received and payable. Claimant contested the offset and asserted the defenses of estoppel and waiver.
Following a combined hearing on respondents' claim for offset and to determine the degree of claimant's permanent disability, the Industrial Commission found that claimant had sustained a 13% permanent partial disability and that an offset was proper. The Commission noted that § 8-51-101, C.R.S., contained no time limitation for claiming an offset and, therefore, allowed the offset against workmen's compensation benefits previously paid as well as those payable.
On review, claimant contends that because he had previously advised respondents that he was receiving social security benefits and respondents thereafter failed for three years to claim the offset, the Industrial Commission erred in not applying the doctrines of estoppel and waiver to bar respondents' claim for offset. Claimant also argues that, under these circumstances, the offset should be prospective only against those workmen's compensation benefits payable after the offset was claimed. We disagree.
Section 8-51-101(1)(c), C.R.S., provides:
"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 and his dependents, 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 one-half such federal periodic benefits...." (emphasis added)
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Johnson v. Industrial Com'n of State of Colo., 86SC383
...Ins. Fund. QUINN, Chief Justice. We granted certiorari to review the decision of the court of appeals in Johnson v. Industrial Commission, 732 P.2d 1236 (Colo.App.1986), which construed section 8-51-101(1)(c), 3B C.R.S. (1986), to permit a workers' compensation insurer to offset against fut......