Industrial Claim Appeals Office of the State of Colorado, WC
Fraley, PLLC, Roger Fraley, Jr., Centennial, Colorado, for
Appearance for Respondent Industrial Claim Appeals Office
& Lyon, P.C., Nancy C. Hummel, David R. Bennett, Denver,
Colorado, for Respondent State of Colorado Department of
In a workers compensation case, after an employer files a
final admission of liability (FAL) and learns of an
overpayment, the Workers Compensation Act of Colorado (Act),
section 8-42-113.5(1)(b.5)(I), C.R.S. 2019, requires the
employer to "attempt to recover" that overpayment
from a claimant within one year of learning of its existence.
(We will refer to section 8-42-113.5(1)(b.5)(I) as the
statute of limitations.)
This workers compensation case asks us to determine whether
an employers listing of an overpayment on the FAL satisfies
the "attempt to recover" term of the statute of
limitations when a claimants temporary total disability
(TTD) and permanent partial disability (PPD) benefits exceed
the statutory cap. See § 8-42-107.5, C.R.S. 2019
(capping a claimants combined TTD payments and PPD
payments). We conclude it does not because, in this
circumstance, the claimant did not receive ongoing benefits
from which the employer could recoup an overpayment.
Id. ; § 8-42-113.5(1)(a), (c).
Claimants Work-Related Injuries
Claimant, Carold Peoples, sustained admitted work-related
injuries in February 2010. Employer, State of Colorado
Department of Transportation (CDOT), began paying claimant
TTD benefits in March 2010. When claimant reached maximum
medical improvement (MMI) in April 2013, his TTD payments
totaled $83,569.36. The parties agree this amount exceeded
the applicable statutory cap on benefits of $75,000, as set
by section 8-42-107.5.
In May 2012, the Social Security Administration determined
that claimant qualified as disabled under its provisions and
awarded him a monthly sum of social security disability
benefits (SSDI). Claimant received a lump sum payment of
$13,938.75 for "money ... due for September 2010 through
April 2012," and thereafter would receive $954 monthly.
As required by section 8-42-113.5(1)(a), on May 30, 2012,
claimant promptly and timely advised CDOT of his SSDI award.
According to claimants counsel, after claimant notified CDOT
of the SSDI award, CDOT revised its general admission of
liability to reflect an overpayment and began taking a $78
deduction from claimants ongoing TTD payments. This was
consistent with the Act, which mandates that SSDI benefits
first be deducted from workers compensation disability
benefits. § 8-42-113.5(1)(a).
In April 2013, after claimant reached MMI, CDOT filed a FAL
(2013 FAL), which included a calculated overpayment of
$17,632.79. This calculation reflected the offsets. But
because claimants TTD benefits ended at MMI, and his
benefits had already exceeded the statutory maximum award for
combined TTD and PPD benefits set by section 8-42-107.5, he
would receive no ongoing benefits. Consequently, CDOT could
not deduct the overpayment from future disability payments
because there would be none. And, although CDOT could have
sought an order for repayment under section 8-42-113.5(1)(c),
it did not do so at that time or within the following year.
Because neither party sought a hearing, the FAL automatically
The parties agree that the case was reopened approximately
four years later so claimant could receive needed surgery. In
November 2017, CDOT filed an amended FAL modifying claimants
scheduled permanent impairment and noted its payment of $4000
for disfigurement. CDOT again listed the overpayment of
$17,632.79 it had included in its 2013 FAL.
Soon after, claimant applied for a hearing, seeking an
additional disfigurement award for scars left by his
most-recent surgery. He also endorsed the following issue:
Respondents [CDOT and its third-party administrator,
Broadspire] have alleged a right to recover the $17,632.79
overpayment thay [sic] claim exists. They might have a right
to claim overpayment but they do not have a right to recover
it as the exact same amount of claimed overpayment was on the
4/16/13 FAL and Sec. 8-42-113.5(1)(b.5)(I) sets a one year
limit on recovering such overpayments which lapsed over three
response to the application for hearing, CDOT framed the
issue as, "[w]hether contesting overpayment is ripe
since claimant did not dispute overpayment in prior [FAL],
credit for any disfigurement award against overpayment,
credit for previously paid disfigurement, attorney
The matter proceeded to a hearing. Before the hearing, the
parties stipulated that the overpayment totaled $17,632.79.
The presiding administrative law judge (ALJ) rejected CDOTs
ripeness contention but ruled that CDOT, by including the
claimed overpayment in its 2013 FAL, satisfied the statutory
requirement to assert an attempt to recover the overpayment
within one year of ...