No. 82CA0026 | Colo. Ct. App. | Jul 8, 1982
Lead Opinion
Workers’ compensation claimant, Alvin Engelbrecht, seeks review of an order of the Industrial Commission which allows the insurer, Hartford Accident and Indemnity Company, to increment the credit it receives against claimant’s disability benefits as claimant’s social security benefits are increased by cost-of-living adjustments. We affirm.
■ The facts are not in dispute. The claimant was injured in the course and scope of his employment and received permanent total disability benefits. The March 20, 1979 order which found the claimant entitled to maximum disability payments, also stated that these benefits were “subject to an offset for the Social Security Administration Disability Benefits ...” and the compensation was to be “adjusted periodically in the future for Federal Social Security offset changes for the natural life of the claimant.” This order was not appealed.
Subsequent to that order, the claimant requested and was granted a lump sum award. The claimant was granted a lump sum of $26,292, and the insurer was ordered to pay the balance of benefits due at the monthly rate of $315.44 until the claimant reached the age of 65 and $563.22 thereafter. The claimant began receiving social security benefits at the monthly rate of $445.70. Because of cost-of-living adjustments, these benefits have periodically increased to $512.70. The Industrial Commission has determined that the insurer is entitled to increase its credit as the social security benefits rise and it is this decision for which review is sought.
The claimant argues that § 8-51-101(l)(c), C.R.S.1973, does not permit the insurer to increase its social security credit as social' security benefits rise. Such an
The claimant further argues that even if the social security offset is permitted to rise with the cost of living, the lump sum award in this case requires that no further credit be taken. We disagree.
Here, the lump sum payment is a substitute for periodic payments. Therefore, the reason for applying the offset in Dailey is applicable. See 4 A. Larson, Workmen’s Compensation Law § 97.34 (1981). Furthermore, in Thornton v. Teeter, 37 Colo. App. 427" court="Colo. Ct. App." date_filed="1976-03-11" href="https://app.midpage.ai/document/city-of-thornton-v-teeter-1351888?utm_source=webapp" opinion_id="1351888">37 Colo. App. 427, 548 P.2d 133 (1976), we held that when there is a lump sum payment, the “aggregate amount” is to be reduced by the social security offset pursuant to § 8-51-101(l)(c), C.R.S.1973.
Order affirmed.
Dissenting Opinion
dissenting.
I respectfully dissent.
I believe it is neither equitable under the facts, nor necessary under the law to allow the workmen’s compensation insurer to benefit from Social Security cost of living increases in benefits. The statute, § 8-51-101(l)(c), C.R.S.1973, provides that if Social Security benefits decrease the credit against the compensation award also decreases; however, the statute is silent as to what happens when Social Security benefits rise. Workers’ compensation benefits are set at a fixed sum as of the date of the accident. To allow a Social Security credit taken by the insurer to rise as cost of living increases in those benefits are awarded would lead to a steady erosion of the disability benefits. There is no good reason why the insurer should benefit from Social Security costs of living increases. If the General Assembly had intended that result, they could have so provided. They did not do so in the statute, and we err in writing such a provision into the statute.
Based upon this rationale, and the well reasoned dissenting opinion of Judge Kelly in Dailey v. Industrial Commission, Colo. App., 651 P.2d 1223 (1982), I would reverse the order of the Industrial Commission, and would decline to follow the majority opinion in Dailey.