National Fruit Product v. Crespin, 97CA0150

• Citation: 952 P.2d 1207
• Decision Date: 18 September 1997
• Docket Number: No. 97CA0150,97CA0150
• Parties: NATIONAL FRUIT PRODUCT and Liberty Mutual Insurance Company, Petitioners, v. Eugene CRESPIN and The Industrial Claim Appeals Office of the State of Colorado, Respondents. . IV
• Court: Court of Appeals of Colorado

Page 1207

952 P.2d 1207

NATIONAL FRUIT PRODUCT and Liberty Mutual Insurance Company Petitioners, v. Eugene CRESPIN and The Industrial Claim Appeals Office of the State of Colorado, Respondents.

No. 97CA0150.

Colorado Court of Appeals Div. IV.

Sept. 18, 1997.

Rehearing Denied Oct. 23, 1997.

Certiorari Denied Feb. 23, 1998.

The Connell Law Firm, John M. Connell, David R. Little, Denver, for Petitioners.

Withers, Seidman & Rice, P.C., Gudrun Rice, Grand Junction, for Respondent Eugene Crespin.

No Appearance for Respondent Industrial Claim Appeals Office.

Opinion by Judge ROY.

In this workers' compensation case, the sole issue on appeal is whether permanent partial disability (PPD) benefits may be offset against permanent total disability (PTD) benefits awarded upon a reopening of the claim. National Fruit Product and Liberty Mutual Insurance Company (collectively insurer) contend that they are entitled to an offset against future payment of PTD benefits of previously paid PPD benefits on the basis that both are paid for a loss of future earning capacity and it would be inequitable to permit claimant to retain both. We disagree and affirm.

The parties stipulated that Eugene Crespin (claimant) sustained a compensable injury in 1989 while working for National Fruit Product. Insurer admitted liability for PPD based on a disability of five percent as a working unit and commenced payment of this award in 1989.

Thereafter, the claim was reopened on three separate occasions because of claimant's worsening condition. As a result of the first two reopenings, claimant was awarded both temporary total disability benefits and increased PPD benefits. The third and final reopening, which occurred in 1994, resulted in claimant being awarded temporary total disability (TTD) benefits retroactively to 1993 and PTD benefits effective July 1995.

The Administrative Law Judge (ALJ) rejected insurer's request for an offset relying on § 8-43-303(1), C.R.S.1997 which, in his view, prohibited any offset. The Panel affirmed without addressing the possible implications of § 8-43-303(1). Instead, the Panel concluded that the insurer could not take an offset because claimant was entitled to the PPD benefits at the time they were paid. The Panel concluded that although both PPD and PTD benefits are intended to compensate claimant for his loss of earning capacity, the benefits were not duplicative because they were payable in differing amounts and for different periods.

We recognize that both PTD and PPD benefits are designed to compensate for a claimant's loss of earning capacity. Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App.1996). We further recognize that, because both benefits compensate for a permanent loss of earning capacity, there is at least a theoretical temporal overlap. However, we agree with the Panel that the two benefits are payable in differing amounts and for essentially different periods.

The PPD rate in effect at the time of claimant's injury was $120 per week with a cap of $37,560. See Colo. Sess. Laws 1987, ch. 51, § 8-51-108(1)(b) at 389 (now codified with amendments as § 8-42-107, C.R.S.1997). In contrast, the PTD benefit was $342.06 per week, or two-thirds of his average weekly wage, payable for life without limit. See § 8-42-111, C.R.S.1997. If we were to hold that claimant's compensation for his permanent partial loss of earning capacity could be offset against his subsequent...