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Ames v. ICAO, 02CA1895 (October 23, 2003): Claimant sustained an admitted injury and was placed under the care of an authorized physician. Claimant then asked for a change in the authorized treating physician, and alleged that he had acted unprofessionally by disclosing confidential information about her to her coworkers. Employer denied the request, and claimant requested a hearing. After claimant requested a change of physician, but before the hearing, the complained-of physician placed claimant at maximum medical improvement (MMI). Employer then request-
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ed a division-sponsored independent medical examination (DIME) on the issue of impairment, and claimant added the issue of MMI. At the hearing, the Administrative Law Judge (ALJ) held that she lacked jurisdiction to hear claimant's request for a change of physician because a DIME was pending on the issue of MMI, and no request for post-MMI medical benefits had been made.
The court of appeals reversed. The court noted that claimant's request for change of physician was based solely on nonmedical reasons involving the alleged unprofes-
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sional behavior of her treating physician. The court stated that considering this allegation, the treating physician should not have made an MMI determination prior to the hearing. Where, as here, the request to change physicians was made before claimant was placed at MMI and was based solely on the treating physician's nonmedical conduct, it was not a challenge to the treating physician's determination of MMI. The court held that the ALJ had authority to hear the claimant's request for a change in physicians.
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Once a claimant has been awarded workers' compensation, you should determine whether there are any offsets that may apply to reduce the amount of money you must pay. The Colorado Workers' Compensation Act provides for a reduction of indemnity benefits based on the claimant's receipt of Social Security (SS) payments, which are payable to employees and their dependents for disability (SSDI), retirement and death. C.R.S. § 8-42-103 permits an offset for fifty percent of the initial monthly award of SS benefits.
If the claimant hired an attorney to help obtain SS benefits, the related attorney fee is excluded from the offset permitted to the insurer. The attorney fee should be deducted from the amount of the SS award before the offset is calculated on the claimant's first lump sum paid by the SS Administration (SSA).
The offset is permitted against temporary total, temporary partial, permanent partial, medical impairment, and permanent total disability benefits received. The insurer has the right to offset retroactive SSDI benefits against the claimant's future compensation payments, even when the worker's compensation case has been closed, and later reopened. In short, the insurer can claim the offset at any time if the claim is open, even if notice of the SS award is given long before the offset is claimed.
The Act requires a claimant to apply for SS benefits upon the written request of the employer or the insurer. The claimant's
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failure to apply upon such written request is cause for a suspension of workers' compensation benefits. If the claimant refuses to apply for SS benefits, the insurer may also reduce compensation payments by taking an estimated offset.
For injuries on and after July 1, 1997, the claimant is required to give written notice of the SS award to the insurer within twenty days of the award. However, the insurer must advise the claimant of the notice requirements at the time the admission or denial of liability for the injury is filed.
The offset applies to SS benefits payable to employees and their dependents. Applications for dependents' benefits are filed separately from the application for the disabled worker. Subject to some limited exceptions, a child is entitled to benefits on the SS record of a disabled parent through age 19, provided they are a student. If the child is not a student, they are entitled to benefits on their parent's account through age 18. The SS Act broadly defines the term "child." Under certain circumstances, the term "child" includes stepchildren and grandchildren. Generally, in defining "child," the SSA looks both at economic dependency on the claimant and relationship. Thus, the claimant's child living with a divorced spouse may be receiving benefits for which you are entitled to an offset, whether or not there is a child support order in effect.
Subject to certain additional limitations, a claimant's spouse is also entitled to SS benefits on the disabled worker's account.
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To be entitled to benefits, a spouse must have a child under age 16, who is the biological child of the claimant, in their care, and must have been married to the claimant for one year prior to the application for benefits. For death benefit offsets, a surviving divorced spouse is entitled to benefits on the account of a deceased worker.
The SS benefits paid to dependents are subject to the "family maximum." This amount is the maximum amount payable on the claimant's account to all family members, including the claimant. The primary insurance amount, or initial award to the claimant, will let you know the family maximum. Since the early 1980s, the family maximum has been limited to 150% of the primary insurance amount in a disability case, but it may be less in cases involving claimants with extremely limited earnings histories.
While a SS offset can be asserted at any time, retroactive benefits are paid only twelve months prior to the date of application, regardless of the actual disability onset date. Therefore, if the severity of the claim justifies it, a written request that the claimant apply for SS benefits should be made as soon as possible. Further, because applications for child and spouse's benefits are filed separately, such request should include language asking the claimant to apply for any available dependents' benefits.
Please feel free to call the attorneys at Clifton, Hook & Bovarnick, P.C., if you have any questions regarding offsets.
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