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. 

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.
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

¶ 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 
2

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). 
3

¶ 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.
4

¶ 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 
5

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 
6

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 
7

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 
8

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.”).
9

¶ 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
10

¶ 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 
11

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 
12

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 
13

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.
14

¶ 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 
15

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 
16

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.