     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            October 17, 2019
                               2019COA158

No. 18CA2088, Peoples v. ICAO — Workers’ Compensation —
Benefits — Recovery of Overpayments

     In this workers’ compensation case, the division considers

whether an employer’s listing of an overpayment on a final

admission of liability constitutes an “attempt to recover” the

overpayment under the Workers’ Compensation Act of Colorado,

section 8-42-113.5(1)(b.5)(I), C.R.S. 2019. The division concludes

that when a claimant’s temporary total disability and permanent

partial disability benefits exceed the statutory cap, an employer’s

listing of an overpayment on a final admission of liability does not

constitute an “attempt to recover” the overpayment.
COLORADO COURT OF APPEALS                                       2019COA158


Court of Appeals No. 18CA2088
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-819-262


Carold Peoples,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and State of Colorado
Department of Transportation,

Respondents.


                        ORDER SET ASIDE AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division III
                         Opinion by JUDGE FURMAN
                         Webb and Brown, JJ., concur

                         Announced October 17, 2019


Irwin Fraley, PLLC, Roger Fraley, Jr., Centennial, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Ritsema & Lyon, P.C., Nancy C. Hummel, David R. Bennett, Denver, Colorado,
for Respondent State of Colorado Department of Transportation
¶1    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.)

¶2    This workers’ compensation case asks us to determine

 whether an employer’s listing of an overpayment on the FAL

 satisfies the “attempt to recover” term of the statute of limitations

 when a claimant’s 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 claimant’s 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).

                     I. Claimant’s Work-Related Injuries

¶3    Claimant, Carold Peoples, sustained admitted work-related

 injuries in February 2010. Employer, State of Colorado Department


                                     1
 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.

¶4    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.

¶5    According to claimant’s 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

 claimant’s 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).




                                   2
¶6    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

 claimant’s 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 closed.

¶7    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 claimant’s

 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.




                                    3
¶8    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 years ago.

 In its 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 fees.”

¶9    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 CDOT’s 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



                                   4
  discovering it. Thus, the ALJ rejected claimant’s contention that

  the statute of limitations had expired.

¶ 10   The ALJ awarded claimant $2175 for disfigurement, which he

  then credited against the overpayment. The ALJ also ordered

  claimant to repay the recalculated remaining overpayment of

  $15,257.79 to CDOT “at the rate of $50.00 per week/$200.00 per

  month.”

¶ 11   On review to the Industrial Claim Appeals Office (Panel),

  claimant contended that (1) recovery of the overpayment was not

  properly before the ALJ; (2) the ALJ misinterpreted the statute of

  limitations; and (3) his disfigurement award should not have been

  credited against the overpayment. The Panel rejected all three

  arguments, determining that, based on the record, recovery of the

  overpayment was an issue before the ALJ, CDOT was not barred

  from recovering the overpayment because filing either a FAL or an

  application for hearing to seek an order for repayment satisfied the

  statute of limitations, and the ALJ therefore properly deducted

  claimant’s disfigurement award from the total overpayment.

¶ 12   On appeal, claimant mounts the same three challenges as he

  did to the Panel. Because we conclude that the statute of


                                    5
  limitations barred CDOT from recovering the overpayment, we set

  aside the Panel’s determination.

         II. Statute of Limitations Applicable to Overpayment

¶ 13   The Panel interpreted the statute’s “attempt to recover”

  provision broadly to require nothing more than CDOT setting forth

  the overpayment amount on the 2013 FAL.

¶ 14   Claimant takes issue with the Panel’s interpretation. He

  points to the uniqueness of this case, contending that his TTD and

  PPD benefits exceeded the then-applicable statutory cap of $75,000.

  As he explains, because his benefits exceeded the statutory cap by

  2013, he could receive no more TTD or PPD benefits. In turn,

  CDOT could not deduct installments from future PPD benefits

  payments to repay the overpayment because there were no

  anticipated future PPD benefits. Instead, CDOT could have

  recovered the overpayment at that time, only if it had sought an

  order of repayment and an ALJ had entered such order. See § 8-

  42-113.5(1)(c). Thus, claimant reasons, merely listing the

  overpayment on the 2013 FAL did not satisfy CDOT’s burden to

  “attempt to recover” the overpayment and the statute of limitations

  expired on May 30, 2013, one year from when he informed CDOT of


                                     6
  the overpayment. So, claimant contends, the statute of limitations

  barred CDOT from seeking recovery of the overpayment in 2017.

¶ 15   We agree with claimant.

                    A. Applicable Statutory Provisions

¶ 16   We begin with the statutory provisions relevant to our

  analysis:

              (1) If a claimant has received an award for the
              payment of disability benefits or a death
              benefit under articles 40 to 47 of this title and
              also receives any payment, award, or
              entitlement to benefits under the federal
              old-age, survivors, and disability insurance
              act, an employer-paid retirement benefit plan,
              or any other plan, program, or source for
              which the original disability benefits or death
              benefit is required to be reduced pursuant to
              said articles, but which were not reflected in
              the calculation of such disability benefits or
              death benefit:

              (a) Within twenty calendar days after learning
              of such payment, award, or entitlement, the
              claimant . . . shall give written notice of the
              payment, award, or entitlement to the
              employer or . . . to the employer’s insurer. If
              the claimant or legal representative gives such
              notice, any overpayment that resulted from the
              failure to make the appropriate reduction in
              the original calculation of such disability
              benefits or death benefit shall be recovered by
              the employer or insurer in installments at the
              same rate as, or a lower rate than, the rate at
              which the overpayments were made. Such


                                      7
              recovery shall reduce the disability benefits or
              death benefit payable after all other applicable
              reductions have been made.

              ....

              (b.5)(I) After the filing of a final admission of
              liability, except in cases of fraud, any attempt
              to recover an overpayment shall be asserted
              within one year after the time the requester
              knew of the existence of the overpayment.

              ....

              (c) If for any reason recovery of overpayments
              as contemplated in paragraph (a) or (b) of this
              subsection (1) is not practicable, the employer
              or insurer is authorized to seek an order for
              repayment.

  § 8-42-113.5(1)(a), (b.5)(I), (c).

¶ 17    This statute gives injured workers twenty days to notify their

  employer or their employer’s insurer about any other sources of

  benefits, such as SSDI. See § 8-42-113.5(1)(a). The provision

  mandates that the employer or insurer then deduct installment

  payments toward the overpayment from the injured worker’s

  disability benefit. See id. (“[S]uch disability benefits . . . shall be

  recovered by the employer or insurer in installments at the same

  rate as, or a lower rate than, the rate at which the overpayments

  were made.”).


                                       8
¶ 18   If recouping an overpayment by deducting from future benefits

  is not “practicable,” an employer or insurer “is authorized to seek

  an order for repayment.” § 8-42-113.5(1)(c). And, the employer or

  insurer must “assert[]” an “attempt to recover the overpayment”

  within one year of learning of its entitlement to an overpayment.

  § 8-42-113.5(1)(b.5)(I).

¶ 19   When it filed its 2013 FAL, CDOT had no means of deducting

  any remaining overpayment from claimant’s future PPD benefits

  because claimant would be receiving no such benefits. His TTD

  benefits exceeded the statutory cap, foreclosing his entitlement to

  future PPD benefits. Thus, it was not practicable for CDOT to

  follow the offset procedure contemplated by section 8-42-

  113.5(1)(a). The parties agree, though, that CDOT could have

  sought an order for repayment as authorized by section 8-42-

  113.5(1)(c) but did not do so in 2013.

¶ 20   We must now determine whether the Act barred CDOT from

  seeking an order of repayment in 2017 because it chose not to do so

  in 2013. We conclude it did.

       B. Rules of Statutory Construction and Standard of Review




                                    9
¶ 21   We review statutory construction de novo. Ray v. Indus. Claim

  Appeals Office, 124 P.3d 891, 893 (Colo. App. 2005), aff’d, 145 P.3d

  661 (Colo. 2006).

¶ 22   If its language is clear, we interpret the Act “according to its

  plain and ordinary meaning.” Davison v. Indus. Claim Appeals

  Office, 84 P.3d 1023, 1029 (Colo. 2004). And, “when examining a

  statute’s language, we give effect to every word and render none

  superfluous because we ‘do not presume that the legislature used

  language idly and with no intent that meaning should be given to

  its language.’” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d

  565, 571 (Colo. 2008) (quoting Colo. Water Conservation Bd. v.

  Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597

  (Colo. 2005)).

¶ 23   Although we may give deference to the Panel’s reasonable

  interpretations of the statute it administers, Sanco Indus. v.

  Stefanski, 147 P.3d 5, 8 (Colo. 2006), we are “not bound by the

  Panel’s interpretation” or its earlier decisions, United Airlines v.

  Indus. Claim Appeals Office, 2013 COA 48, ¶ 7; Olivas-Soto v. Indus.

  Claim Appeals Office, 143 P.3d 1178, 1180 (Colo. App. 2006). But

  “the Panel’s interpretation will be set aside only if it is inconsistent


                                     10
  with the clear language of the statute or with the legislative intent.”

  Support, Inc. v. Indus. Claim Appeals Office, 968 P.2d 174, 175

  (Colo. App. 1998).

         C. Scope of “Attempt to Recover” Under Section 8-42-
                           113.5(1)(b.5)(I)

¶ 24   Relying on one of its earlier decisions, the Panel determined

  that CDOT’s filing of the 2013 FAL, in which it listed the

  overpayment amount, constituted a satisfactory “attempt to

  recover” the overpayment under the statute of limitations. In this

  earlier decision, the Panel had rejected the employer’s contention

  that its “informal” attempts to recover an overpayment — primarily

  letters to opposing counsel demanding payment — satisfied the

  statute of limitations. Through informal correspondence, the

  employer “recommended that the insurer receive $50 a week from

  [PPD] benefits to recover the overpayment.” Maez v. Adelphia

  Commc’ns Corp., W.C. No. 4-609-410, 2011 WL 308226, at *1 (Colo.

  I.C.A.O. Jan. 25, 2011). The Panel determined this correspondence

  did not constitute an attempt to recover within the statute of

  limitations. Rather, the Panel determined the employer should have

  “either file[d] a [FAL]” listing the overpayment or sought “an order to



                                    11
  recover the overpayment” to preserve its right to recover the

  overpayment. Id. at *3.

¶ 25   Following the reasoning in Maez, the Panel here determined

  that employer’s listing of the overpayment in its 2013 FAL satisfied

  the statute. The Panel noted that section 8-42-113.5(1)(b.5)(I)

  broadly states that “any attempt to recover” (emphasis added) an

  overpayment within one year of learning of its existence satisfies the

  statute of limitations; therefore, the Panel reasoned, CDOT’s 2013

  FAL, which first identified the overpayment, fulfilled its statutory

  obligation. We disagree. Neither Maez nor the statute’s plain

  language mandate this outcome.

¶ 26   The Maez employer did not learn of the overpayment until

  after it had filed its first FAL. And, because the Maez claimant still

  could receive disability benefits, the Maez employer could recover

  the overpayment by reducing payments of ongoing disability

  benefits. Thus, the Maez employer could have filed a revised FAL

  within the statute of limitations that claimed specific offset against

  future benefits to which the claimant was entitled, and that would

  have constituted an “attempt to recover.” Not so, here. CDOT knew

  about claimant’s SSDI benefits well before it filed its 2013 FAL but


                                    12
  could not recover the overpayments by deducting payments from

  ongoing disability benefits — because claimant could receive no

  more TTD or PPD benefits.

¶ 27   Turning to the statutory language, we also conclude that

  section 8-42-113.5(1)(b.5) does not support the Panel’s

  interpretation in this circumstance. See Support, Inc., 968 P.2d at

  175. The Act does not define “attempt.” But, a common meaning of

  this term includes “to make an effort to” accomplish an end.

  Merriam-Webster Dictionary, https://perma.cc/57Q3-QMUL. And,

  attempt does not include merely asserting an overpayment because

  “attempt” modifies “to recover.” See § 8-42-113.5(1)(b.5)(I).

  “Recover” is defined as “to get back” or “to gain by legal process.”

  Merriam-Webster Dictionary, https://perma.cc/S5NT-DF2C. Thus,

  the term “attempt” in section 8-42-113.5(1)(b.5)(I) cannot be a mere

  assertion of an overpayment; it must include some effort to regain

  the overpayment. CDOT did not make such an effort to regain the

  overpayment when it learned of the overpayment. Rather, the 2013

  FAL simply provided notice to claimant that an overpayment

  existed.




                                    13
¶ 28   For these reasons, we agree with claimant that the 2013 FAL,

  which merely declared the amount of the overpayment, did not

  satisfy the statute of limitations.

¶ 29   And, if the statute of limitations can be satisfied simply by

  asserting the overpayment in a FAL when no means to deduct

  installments are available, rather than making an effort to recover

  the overpayment, what is to prevent an employer from stopping the

  statute of limitations clock with a FAL, waiting an unconscionable

  length of time, and then, much later, filing an application for

  hearing seeking an order for repayment? We do not believe the

  legislature intended to create a loophole through which employers

  can extend the statute of limitations indefinitely. Such an outcome

  would be contrary to the legislature’s intent of limiting employers’

  right to collect repayment of an overpayment to within one year of

  learning of the overpayment. § 8-42-113.5(b.5)(I).

¶ 30   Such a result also runs counter to the Act’s stated goal of

  assuring “the quick and efficient delivery of disability and medical

  benefits to injured workers at a reasonable cost to employers.” § 8-

  40-102(1), C.R.S. 2019. The closure of claims advances this goal.

  But allowing an employer to extend the deadline to seek repayment


                                        14
  of overpayments solely by listing the overpayment in a FAL when no

  means to deduct installments are available, which can occur under

  the Panel’s interpretation, thwarts the goal of closure. See

  Olivas-Soto, 143 P.3d at 1179 (The statute that provides for

  automatic closure of claims thirty days after filing of a FAL “is part

  of a statutory scheme designed to promote, encourage, and ensure

  prompt payment of compensation to an injured worker without the

  necessity of a formal administrative determination in cases not

  presenting a legitimate controversy.”).

¶ 31   We therefore conclude that, where, as here, an employer

  cannot offset its overpayment by deducting from ongoing disability

  payments, an employer must seek an ALJ’s order of repayment

  within one year of learning of its entitlement to an overpayment.

  § 8-42-113.5(1)(b.5). So, we also conclude that the Panel and the

  ALJ erred by determining that CDOT had satisfied this statute

  when it filed its 2013 FAL listing the overpayment.

        D. CDOT Was Not Entitled to Recoup the Overpayment

¶ 32   After it filed its 2013 FAL, CDOT should have made an

  “attempt to recover [the] overpayment” within one year of learning of

  the overpayment. § 8-42-113.5(1)(b.5)(I). Because it did not pursue


                                    15
  a course of action that could lead to recovery of the overpayment —

  relying instead on the mere uncollectable identification of the

  overpayment in the FAL — the statute of limitations expired.

  Consequently, CDOT was barred from seeking recovery of the

  overpayment. The Panel therefore erred when it affirmed the ALJ’s

  order of repayment and credit against claimant’s disfigurement

  award.

       III. Recovery of the Overpayment Was Properly Before the ALJ

¶ 33     Having determined that CDOT was time barred from seeking

  repayment of the overpayment, we need not address claimant’s

  contention that repayment had not been endorsed properly or

  timely.

                             IV. Conclusion

¶ 34     We set aside the Panel’s order and remand the case for

  issuance of a new order in accordance with this opinion.

         JUDGE WEBB and JUDGE BROWN concur.




                                    16
