CO Code § 8-42-103 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 42 - Benefits|§ 8-42-103. Disability Indemnity Payable as Wages - Period of Disability

  If the injury or occupational disease causes disability, a disability indemnity shall be payable as wages pursuant to section 8-42-105 (2)(a) subject to the following limitations:   If the period of disability does not last longer than three days from the day the employee leaves work as a result of the injury, no disability indemnity shall be recoverable except the disbursement provided in articles 40 to 47 of this title for medical, surgical, nursing, and hospital services, apparatus, and supplies, nor in any case unless the division has actual knowledge of the injury or is notified thereof within the period specified in said articles.    If the period of disability lasts longer than two weeks from the day the injured employee leaves work as the result of the injury, disability indemnity shall be recoverable from the day the injured employee leaves work.      In cases where it is determined that periodic disability benefits granted by the federal “Old-Age, Survivors, and Disability Insurance Amendments of 1965”, Pub.L. 89-97, are payable to an individual and the individual's dependents, the aggregate benefits payable for temporary total disability, temporary partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to one-half the federal periodic benefits; but, if the federal “Old-Age, Survivors, and Disability Insurance Amendments of 1965”, Pub.L. 89-97, is amended to provide for a reduction of an individual's disability benefits thereunder because of compensation benefits payable under articles 40 to 47 of this title, the reduction of compensation benefits provided in said articles shall be decreased by an amount equal to the federal reduction. Upon request of the insurer or employer, the employee shall apply for such federal periodic disability benefits and respond to requests from the insurer or employer as to the status of such application. Failure to comply with this section constitutes cause for suspension of benefits. (c) (I) In cases where it is determined that periodic disability benefits granted by the federal “Old-Age, Survivors, and Disability Insurance Amendments of 1965”, Pub.L. 89-97, are payable to an individual and the individual's dependents, the aggregate benefits payable for temporary total disability, temporary partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to one-half the federal periodic benefits; but, if the federal “Old-Age, Survivors, and Disability Insurance Amendments of 1965”, Pub.L. 89-97, is amended to provide for a reduction of an individual's disability benefits thereunder because of compensation benefits payable under articles 40 to 47 of this title, the reduction of compensation benefits provided in said articles shall be decreased by an amount equal to the federal reduction. Upon request of the insurer or employer, the employee shall apply for such federal periodic disability benefits and respond to requests from the insurer or employer as to the status of such application. Failure to comply with this section constitutes cause for suspension of benefits.    In cases where it is determined that periodic benefits granted by the federal old-age, survivors, and disability insurance act or employer-paid retirement benefits are payable to an individual and the individual's dependents, the aggregate benefits payable for permanent total disability pursuant to this section shall be reduced, but not below zero:   By an amount equal as nearly as practical to one-half such federal benefits; except that this reduction for the periodic benefits granted by the federal old-age, survivors, and disability insurance act shall not exceed the reduction specified in subparagraph (I) of this paragraph (c) for the periodic disability benefits payable to an individual;    By an amount determined as a percentage of the employer-paid retirement benefits, said percentage to be determined by a weighted average of the employer's contributions during the period of covered employment divided by the total contributions during the period of covered employment; except that in permanent total disability cases all contributions made by the employer pursuant to a collective bargaining agreement with the employee's representative shall be considered to have been made by the employee.  (II.5) In cases where an employer does not participate in federal old-age, survivors, and disability insurance, and it is determined that employer-paid retirement benefits are payable to an individual and the individual's dependents, the aggregate benefits payable for permanent total disability pursuant to this section shall be reduced, but not below zero by an amount determined as a percentage of the employer-paid retirement benefits, said percentage to be determined by a weighted average of the employer's contributions during the period of covered employment divided by the total contributions during the period of covered employment.        Notwithstanding sub-subparagraph (A) of subparagraph (II) of this paragraph (c), if the federal “Old-Age, Survivors, and Disability Insurance Amendments of 1965”, Pub.L. 89-97, is amended to provide for a reduction of an individual's periodic benefits thereunder because of compensation benefits payable under articles 40 to 47 of this title, the reduction of compensation benefits provided in said articles shall be decreased by an amount equal to the federal reduction.    The provisions of subparagraphs (II) and (III) of this paragraph (c) shall apply only if the injury on which the award for permanent total disability was based occurred after the claimant reached forty-five years of age.    The reductions or offsets in this subsection (1)(c) apply only if the employee was not receiving the periodic disability benefits or retirement benefits granted by the federal “Old-Age, Survivors, and Disability Insurance Amendments of 1965”, Pub.L. 89-97, as amended, or employer-paid retirement benefits at the time of the work-related injury.         In cases where it is determined that periodic disability benefits are payable to an employee under a pension or disability plan financed in whole or in part by the employer, hereinafter called “employer pension or disability plan”, the aggregate benefits payable for temporary total disability, temporary partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to the employer pension or disability plan benefits, with the following limitations: (d) (I) In cases where it is determined that periodic disability benefits are payable to an employee under a pension or disability plan financed in whole or in part by the employer, hereinafter called “employer pension or disability plan”, the aggregate benefits payable for temporary total disability, temporary partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to the employer pension or disability plan benefits, with the following limitations:   Where the employee has contributed to the employer pension or disability plan, benefits shall be reduced under this section only in an amount proportional to the employer's percentage of total contributions to the employer pension or disability plan.    Where the employer pension or disability plan provides by its terms that benefits are precluded thereunder in whole or in part if benefits are awarded under articles 40 to 47 of this title, the reduction provided in this paragraph (d) shall not be applicable to the extent of the amount so precluded.       Upon request of the insurer or employer, the employee shall apply for such periodic disability benefits and respond to requests from the insurer or employer as to the status of such application. Failure to comply with this section shall be cause for suspension of benefits.    The provisions of this paragraph (d) shall apply to a disability pension paid pursuant to article 30.5 or 31 of title 31, C.R.S.; except that said reduction shall not reduce the combined weekly disability benefits below a sum equal to one hundred percent of the state average weekly wage as defined in section 8-47-106 and applicable to the year in which the weekly disability benefits are being paid.    If the disability benefits awarded pursuant to articles 40 to 47 of this title are paid in a lump sum pursuant to section 8-43-406, the weekly benefit attributed to such workers' compensation benefits, for the purpose of calculating the combined weekly disability benefit specified in subparagraph (III) of this paragraph (d), shall be calculated by assuming that the employee is receiving the weekly disability benefits payments such employee would have received had such weekly disability payments not been reduced and paid as a lump sum.       In cases where it is determined that periodic disability benefits are payable to an individual and said individual's dependents pursuant to a workers' compensation act of another state or of the federal government, the aggregate benefits payable for temporary total disability, temporary partial disability, permanent partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal to the benefits payable pursuant to such other workers' compensation act.    In cases where it is determined that unemployment compensation benefits are payable to an employee, the aggregate benefits payable for permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to such unemployment compensation benefits. In cases where it is determined that unemployment insurance benefits are payable to an employee, compensation for temporary disability shall be reduced, but not below zero, by the amount of unemployment insurance benefits received, unless the unemployment insurance amount has already been reduced by the temporary disability benefit amount and except that temporary total disability shall not be reduced by unemployment insurance benefits received pursuant to section 8-73-112.    In cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.    Unless the offset provisions of section 29-5-403 (10) have already been taken, in cases where it is determined that a firefighter has received an award of benefits for a cancer diagnosis pursuant to section 29-5-403 (3)(b) to (3)(k), the aggregate benefits payable for temporary total disability, temporary partial disability, permanent partial disability, and permanent total disability shall be reduced, but not below zero, by an amount equal to the total amount of such cancer diagnosis benefits. In cases where it is determined that a covered individual has received cosmetic disfigurement benefits pursuant to section 29-5-403 (4)(b), benefits for disfigurement payable pursuant to section 8-42-108 shall be reduced, but not below zero, by an amount equal to such cosmetic disfigurement benefits.       Within fifteen days after receipt of written notice by the employer or, if insured, the employer's workers' compensation insurance carrier or third-party administrator of the termination of a fringe benefit or advantage enumerated in section 8-40-201 (19)(b), and the effective date of the termination and cost of conversion, the employer or, if insured, the employer's workers' compensation insurance carrier or third-party administrator shall recalculate the applicable average weekly wage and begin payment of benefits in accordance with the recalculation with interest beginning on the date the benefit was terminated.     History. Source: L. 90: Entire article R&RE, p. 487, § 1 effective July 1; (1)(d)(IV) amended, p. 1844, § 30, effective July 1. L. 92: IP(1) amended, p. 1824, § 1, effective April 29. L. 94: (1)(c)(II) amended and (1)(c)(II.5) added, p. 2001, § 3, effective July 1. L. 96: (1)(d)(III) amended, p. 940, § 2, effective May 23. L. 99: (1)(g) added, p. 266, § 1, effective July 1. L. 2000: IP(1)(c)(II), (1)(c)(II.5), and (1)(c)(III) amended, p. 1762, § 1, effective June 1. L. 2010: IP(1), (1)(c)(I), (1)(c)(III), and IP(1)(d)(I) amended,(SB 10-187), ch. 310, p. 1457, § 4, effective July 1. L. 2013: (2) added,(SB 13-285), ch. 301, p. 1594, § 2, effective July 1. L. 2017: (1)(h) added,(SB 17-214), ch. 187, p. 684, § 3, effective May 3. L. 2021: (1)(c)(V) added,(HB 21-1050), ch. 384, p. 2570, § 2, effective September 7.    Editor's note:    This section is similar to former § 8-51-101 as it existed prior to 1990.    Section 13(2)(d) of chapter 384 (HB 21-1050), Session Laws of Colorado 2021, provides that the act changing this section applies to injuries occurring on or after September 7, 2021.     ANNOTATION   Law reviews. For article, “Update on Colorado Appellate Decisions in Workers' Compensation Law”, see 32 Colo. Law. 97 (June 2003). For article, “Termination of Undocumented Workers Under the Workers' Compensation Act”, see 37 Colo. Law. 59 (March 2008).   Annotator's note. Since § 8-42-103 is similar to § 8-51-101 as it existed prior to the 1990 repeal and reenactment of the “Workers' Compensation Act of Colorado”, articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.   Constitutionality of social security benefit offset. Subsection (1)(c), providing for an offset of social security retirement benefits against workers' compensation benefits, does not violate equal protection under the state or federal constitutions. Culver v. Ace Elec., 952 P.2d 1200 (Colo. App. 1997), aff'd, 971 P.2d 641 (Colo. 1999); Stolworthy v. Clark, 952 P.2d 1198 (Colo. App. 1997), aff'd sub nom. Culver v. Ace Elec., 971 P.2d 641 (Colo. 1999).   Avoiding duplicative benefits serves a legitimate governmental interest, and imposing an offset is rationally related to that interest. Culver v. Ace Elec., 952 P.2d 1200 (Colo. App. 1997), aff'd, 971 P.2d 641 (Colo. 1999).   Other sections may limit rights granted by this section. The general statement in subsection (1)(a) that, whenever an “injury or occupational disease causes disability, a disability indemnity shall be payable as wages” does not override the statutory time limits on reopening of claims under § 8-43-303 . Calvert v. Indus. Claim Appeals Office, 155 P.3d 474 (Colo. App. 2006).   The various provisions of subsection (1)(c) and (1)(d)(I) do not impinge on any of the rights guaranteed by either the state or federal constitution. Myers v. State, 162 Colo. 435 , 428 P.2d 83 (1967).   Offset for SSDI benefits set forth in subsection (1)(c)(I) may be taken retroactively against compensation benefits received before the insurer has invoked the claim of an offset. Nothing in the statute indicates that an insurer's right of offset is subject to a time limitation. Imposing such a restriction would undermine the very purpose of the offset, which is to prevent a windfall of duplicative disability benefits regardless of whether such outcome occurs by mistake. Jiminez v. Indus. Claim Appeals Office, 51 P.3d 1090 (Colo. App. 2002).   Mere happening of accident not cause for benefits. Even though exposure to disease might be considered an accident under the workmen's compensation act, the mere happening of an accident does not give rise to a right to benefits. City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399 (1976).   Benefits flow only to a workman who has suffered a disabling injury as a result of the accident. City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399 (1976).   When employer required to pay medical expenses. An employer is required to pay medical expenses only in cases in which he would be charged with the duty of paying other compensation under the act. City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399 (1976).   Benefits under this section are based on the loss or impairment of the earning power of the workman. They protect against an actual loss of earnings which must be shown to have been occasioned during the period of time for which the claim for benefits is made. An award for disability, either permanent or temporary presupposes the actual inability of the workman to earn as much, because of the injury, as he was able to earn prior thereto. Ice v. Indus. Comm'n, 120 Colo. 144 , 207 P.2d 963 (1949).   Benefits are based upon loss or impairment of the earning power of the workman and are designed for protection against actual loss of earnings as a result of the injury. City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399 (1976); Monfort of Colo. v. Husson, 725 P.2d 67 (Colo. App. 1986); Ray v. Indus. Claim Appeals Office, 920 P.2d 868 (Colo. App. 1996).   “Disability” means industrial disability or loss of earning capacity. The term “disability” as used in the workmen's compensation act means industrial disability or loss of earning capacity, and not mere functional disability. World of Sleep, Inc. v. Davis, 34 Colo. App. 279, 527 P.2d 890 (1974), rev'd on other grounds, 188 Colo. 443 , 536 P.2d 34 (1975).   Although “disability” incorporates both medical incapacity and loss of wage earnings, a claimant does not need to prove both components to establish entitlement to disability benefits under the workers' compensation act. Montoya v. Indus. Claim Appeals Office, 2018 COA 19 , __ P.3d __.   As are medical impairment benefits awarded under § 8-42-107(8) . Such benefits are a form of permanent partial disability benefits designed to compensate for loss of earning capacity, and there is no basis for distinguishing between such benefits and the benefits referenced in subsection (1)(c)(I) of this section. Ray v. Indus. Claim Appeals Office, 920 P.2d 868 (Colo. App. 1996).   Admission of liability for “closed” period not permitted. By filing an admission of liability, an insurer has, in effect, admitted that the claimant has sustained the burden of proving entitlement to temporary disability benefits. Thereafter, the insurer is bound by that admission and must pay accordingly. The insurer may not unilaterally terminate benefits without complying with other statutory and regulatory provisions governing the termination of such benefits. Colo. Comp. Ins. Auth. v. Indus. Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).   Subsection (1)(a) and § 8-42-105(1) require a claimant to establish a causal connection between a work-related injury and a subsequent wage loss in order to obtain temporary total disability benefits. Lindner Chevrolet v. Indus. Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995).   To establish eligibility for temporary disability benefits the employee need not prove that the work-related injury was the sole cause of the wage loss; if the claimant establishes that his or her work-related injury contributed in some degree to a temporary wage loss, the claimant is eligible for temporary disability benefits. Lindner Chevrolet v. Indus. Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995).   It is highly unlikely that the general assembly intended to deny completely temporary disability benefits where an employee was terminated for negligently causing a work injury in light of § 8-42-112 (1) , which requires a 50%; reduction in benefits if an employee is injured because of willfully violating a safety rule. The term “responsible” does not refer to an employee's injury or injury-producing activity, therefore the termination statutes do not apply where an employee is terminated because of the employee's injury or injury-producing activity. Colo. Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002).   Neither this section nor § 8-42-105 requires claimant to provide a medical opinion restricting her from regular employment as a condition of receiving temporary total disability benefits. The administrative law judge appropriately awarded TTD benefits based on claimant's evidence, including notes of her personal physician, that she had suffered a wage loss as a result of her injury. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997).   “Dependents”, as used in subsection (1)(c), is governed by state law. Dietiker v. Indus. Claim Appeals Office, 867 P.2d 171 (Colo. App. 1993).   A claimant's first wife is not a dependent for the purposes of subsection (1)(c) where the claimant has no legal obligation to support the wife after their divorce. An insurer is not entitled to an offset against the claimant's workers' compensation benefits for federal SSDI benefits received by the first wife. Dietiker v. Indus. Claim Appeals Office, 867 P.2d 171 (Colo. App. 1993).   An insurer is entitled to an offset against a claimant's workers' compensation benefits for federal SSDI benefits received by the claimant's wife from the date of their marriage. The amount of the offset, however, is based on the amount the dependent would have received at the time of the initial SSDI award to the claimant. Dietiker v. Indus. Claim Appeals Office, 867 P.2d 171 (Colo. App. 1993).   Legally adopted child under eighteen years of age is a dependent within the meaning of subsection (1)(c). An insurer is entitled to an offset against a claimant's workers' compensation benefits for federal SSDI benefits received by the claimant's legally adopted child from the date of the adoption. The amount of the offset, however, is based on the amount the dependent would have received at the time of the initial SSDI award to the claimant. Dietiker v. Indus. Claim Appeals Office, 867 P.2d 171 (Colo. App. 1993).   Use of the word “practical” in subsection (1)(d) reflects that the general assembly recognized that in some instances it would not be feasible to calculate the employer's exact contribution to the claimant's pension. Walker v. City & County of Denver, 870 P.2d 1269 (Colo. App. 1994); Johnson v. Indus. Claim Appeals Office, 973 P.2d 624 (Colo. App. 1997).   Disabled employee has duty to apply for social security benefits. Consistent with the proposition that an injured person has a duty to mitigate his damages, a disabled employee when eligible has a duty to apply for social security disability benefits, not only to benefit himself but also to benefit his employer who is bound by law to provide him with workmen's compensation benefits. Hurtado v. C F & I Steel Corp., 168 Colo. 37 , 449 P.2d 819 (1969); Arellano v. Dir., Div. of Labor, 42 Colo. App. 149, 590 P.2d 987 (1979).   And employer may determine the payability of federal benefits and may reduce workmen's compensation. When an employee who is receiving workmen's compensation disability benefits becomes eligible for further disability benefits under the social security act, and such employee fails to make application for such additional benefits, the employer paying the compensation may initially determine the payability of such federal disability benefits and may reduce the workmen's compensation disability payments in accordance with this section. Hurtado v. C F & I Steel Corp., 168 Colo. 37 , 449 P.2d 819 (1969); Arellano v. Dir., Div. of Labor, 42 Colo. App. 149, 590 P.2d 987 (1979).   Subsections (1)(c) and (1)(d)(I) apply to the situation where a person, who is receiving benefits under workmen's compensation, is thereafter granted a disability annuity. Yeargain v. State, 162 Colo. 447 , 428 P.2d 89 (1967).   For an injured employee should not be permitted to receive so-called “double” disability benefits; i.e., both workmen's compensation benefits and disability annuity at the expense of the employer. Myers v. State, 162 Colo. 435 , 428 P.2d 83 (1967).   Rationale behind the setoff provisions is to prevent duplication of benefits at the employer's expense. In re Dailey v. Indus. Comm'n, 651 P.2d 1223 (Colo. App. 1982), rev'd on other grounds, 680 P.2d 231 (Colo. 1984).   Intent of offset provision is to prevent employee from receiving double disability benefits which are both financed by the employer. Scriven v. Indus. Comm'n, 736 P.2d 414 (Colo. App. 1987); Sparling v. Colo. Dept. of Hwys., 812 P.2d 686 (Colo. App. 1990); Walker v. City & County of Denver, 870 P.2d 1269 (Colo. App. 1994).   Subsection (1)(e) was designed to prevent an injured worker from receiving duplicative benefits for the same injury. Circle K Corp. v. Indus. Claim Appeals Office, 809 P.2d 1116 (Colo. App. 1991).   Only pension benefits to which the employer has contributed are available to create an offset. Conversely, benefits attributable to claimant's contributions are not subject to the offset. Spanish Peaks Mental Health v. Huffaker, 928 P.2d 741 (Colo. App. 1996) (decided prior to 1990 repeal and reenactment).   Subsection (1)(c)(II.5) does not allow an employer to offset old-age social security benefits against military retirement benefits because that provision permits an offset only of employer-paid retirement benefits. Zerba v. Dillon Cos., Inc., 2012 COA 78 , 292 P.3d 1051.   No requirement that social security benefits and workers' compensation benefits both are paid because of a work-related injury. Nor does the plain language of subsection (1)(c)(I) admit of an interpretation that limits its application to cases in which the claimant has a valid reason not to accept SSDI or does not benefit from a determination that SSDI is payable. Ihnen v. Western Forge, 936 P.2d 634 (Colo. App. 1997).   Offset for social security retirement benefits can be taken regardless of a claimant's receipt of, or entitlement to, social security disability benefits. The receipt of, or entitlement to, disability benefits affects only the limitation on the amount of the offset for retirement benefits in subsection (1)(c)(II) but not the applicability of the retirement offset itself. Culver v. Ace Elec., 952 P.2d 1200 (Colo. App. 1997), aff'd, 971 P.2d 641 (Colo. 1999).   A claimant's failure to qualify for social security disability benefits affects only the provision limiting the amount of the offset in subsection (1)(c)(II) not the applicability of the offset itself. Stolworthy v. Clark, 952 P.2d 1198 (Colo. App. 1997), aff'd sub nom. Culver v. Ace Elec., 971 P.2d 641 (Colo. 1999).   The term “payable” in subsection (1)(c)(II) should be construed to mean that a claimant is entitled to benefits, not whether he or she actually applied for and received them. Culver v. Ace Elec., 952 P.2d 1200 (Colo. App. 1997), aff'd, 971 P.2d 641 (Colo. 1999).   An employer who offsets old-age social security benefits received by the claimant against the claimant's permanent total disability benefits does not violate the equal protection clause of the fourteenth amendment because the social security offset has a rational basis and therefore meets constitutional scrutiny. Zerba v. Dillon Cos., Inc., 2012 COA 78 , 292 P.3d 1051.   Offset for social security disability benefits is taken after, not before, application of maximum benefit provisions of § 8-42-105 . To do otherwise would ignore the word “payable” in subsection (1)(c). Yates v. Sinton Dairy, 883 P.2d 562 (Colo. App. 1994).   Offset for social security disability benefits is taken from the aggregate total of the workers' compensation benefits payable, not from each benefit separately. Where an employee is receiving PPD benefits for one injury and TTD benefits for another, the offset applies only once. U.S. West Commc'ns, Inc. v. Indus. Claim Appeals Office, 978 P.2d 154 (Colo. App. 1999).   Offset for social security disability insurance benefits taken against permanent partial disability benefits is calculated by converting the overall aggregate amount of permanent partial disability benefits to its weekly equivalent to determine the number of weeks of eligibility. The number of weeks is multiplied by the weekly social security offset to yield the total offset. Armijo v. Indus. Claim Appeals Office, 989 P.3d 198 (Colo. App. 1999).   Benefits not offset by social security cost of living increases. State workmen's compensation benefits may not be offset by the amount of federal cost of living increases. Engelbrecht v. Hartford Acc. & Indem. Co., 680 P.2d 231 (Colo. 1984).   Holding that state workers' compensation benefits may not be offset by the amount of federal cost of living increases is to be applied retroactively. Marinez v. Indus. Comm'n, 746 P.2d 552 (Colo. 1987); Ward v. Azotea Contractors, 748 P.2d 338 (Colo. 1987).   Purpose and effect of not offsetting benefits by social security cost of living increases is furthered by retroactive application since injured workers who had been deprived of one-half the increase provided under federal law would have that inequity redressed. Marinez v. Indus. Comm'n, 746 P.2d 552 (Colo. 1987); Harrison v. Indus. Comm'n, 750 P.2d 65 (Colo. 1988); Fraker v. Indus. Comm'n, 750 P.2d 67 (Colo. 1988).   Even though employer did not pay social security taxes, employer is allowed an offset against workers' compensation benefits for social security benefits paid to a claimant. Sampson v. Weld County Sch. Dist., 786 P.2d 488 (Colo. App. 1989).   Where insurer makes an offset for social security disability benefits pursuant to subsection (1)(c), the insurer is not required to file a petition to modify. Gregory v. Crown Transp., 776 P.2d 1163 (Colo. App. 1989), cert. denied, 785 P.2d 916 (Colo. 1989).   The phrase “individual and his dependents” in subsection (1)(e) refers to the deceased workman and his dependents and thus, award of death benefits without an offset for social security benefits received by the deceased's nondependent stepchildren was proper. Acme Glass v. Indus. Comm'n, 682 P.2d 521 (Colo. App. 1984).   Offset provision applies to multi-employer plans as well as to single employer plans. Scriven v. Indus. Comm'n, 736 P.2d 414 (Colo. App. 1987).   Offset provision applies to both vested and nonvested retirement benefits. Nye v. Indus. Claim Appeals Office, 883 P.2d 607 (Colo. App. 1994).   Workers' compensation insurer is entitled to offset against future disability benefits paid to the claimant one-half of the amount of social security disability benefits received by the claimant before right of offset was invoked. This section allows the commission to reduce future benefits to the claimant to offset the social security disability benefits already paid to the claimant. Johnson v. Indus. Comm'n, 761 P.2d 1140 (Colo. 1988).   City, a self-insured employer, was entitled to offset claimant's pension benefits under this section, even though the City made no actual contributions to his pension for period of time, where the evidence was undisputed that the City was required by statute to make, and did make, substantial amortized retroactive contributions to its pension plan since becoming affiliated with the Police and Fire Pension Association in 1981. Walker v. City & County of Denver, 870 P.2d 1269 (Colo. App. 1994).   Benefits cannot be offset by amounts withheld from claimant's lump sum disability benefits and paid directly to claimant's attorney as fees earned in appealing the initial denial of the disability benefits. St. Vincent's Hosp. v. Alires, 778 P.2d 277 (Colo. App. 1989).   Payments made under a “pension plan” may not be offset against a workers' compensation award since these two payment types are mutually exclusive: The former payment type is provided for payments of injuries not arising out of the course of employment; the latter payment is for injuries arising out of employment. Halliburton Serv. v. Miller, 720 P.2d 571 (Colo. 1986).   Fact that pension plan is a negotiated employment benefit does not change its character as being employer financed and, therefore, workers' compensation benefits are subject to offset by amount of disability benefits. Scriven v. Indus. Comm'n, 736 P.2d 414 (Colo. App. 1987).   To determine the amount by which a state employee's workers' compensation benefits must be offset by PERA benefits, the portion of the employee's PERA benefits attributable to employer's contribution to the pension program are subtracted from workers' compensation benefits. Indus. Comm'n v. Edlund, 759 P.2d 7 (Colo. 1988).   Purpose of subsection (1)(e) is to prevent double recovery by an employee. If an offset is determined by net PERA benefits, rather than PERA benefits before federal and state taxes are deducted, the employer would in effect be required to pay an employee's taxes. Colo. Dept. of Hwys. v. Sparling, 821 P.2d 780 (Colo. 1991).   “Total pension benefits”, as used in subsection (1)(e) means gross benefits, before federal and state taxes are withheld from disability pension benefits payable to an employee pursuant to an employer's pension plan. Taxes shall not be deducted before calculating the offset of such periodic disability benefits from the aggregate benefits payable pursuant to such subsection. Colo. Dept. of Hwys. v. Sparling, 821 P.2d 780 (Colo. 1991).   Offset calculated pursuant to this section properly included amounts withheld at option of claimant from claimant's PERA disability payments for health and life insurance coverages as such deducted insurance premiums are “payable to” claimant even though not actually received. Sparling v. Colo. Dept. of Hwys., 812 P.2d 686 (Colo. App. 1990).   Calculation of employer's total contributions to PERA includes its contributions to the cost-of-living stabilization fund and contributions for unfunded liabilities. Johnson v. Indus. Claim Appeals Office, 973 P.2d 624 (Colo. App. 1997).   This section does not make a distinction between PERA disability retirement contributions and service retirement contributions. Johnson v. Indus. Claim Appeals Office, 973 P.2d 624 (Colo. App. 1997).   Offset properly excluded taxes mandatorily deducted from claimant's PERA disability benefits as such amounts are not “payable to” nor paid to claimant. Sparling v. Colo. Dept. of Hwys., 812 P.2d 686 (Colo. App. 1990).   The offset afforded by this section should continue so long as PERA disability benefits continue, and should not automatically terminate based upon claimant achieving 65 years of age where statutes provide and testimony before ALJ indicated that part of the PERA disability retirement benefit payable to the claimant was directly attributable to the fact that she was permanently disabled and that such disability benefit would, after age 65, be paid for the rest of her life regardless of her recovery or her work status, subject to certain limitations. State Penitentiary v. Toothaker, 832 P.2d 1009 (Colo. App. 1991).   The offset under subsection (1)(d) is an offset against pension benefits and, if for some reason, the claimant's pension benefits are reduced or terminated and are no longer “payable” to the claimant, the offset under subsection (1)(d) will become inapplicable and claimant's weekly workers' compensation benefit will be restored to its pre-offset level. Walker v. City & County of Denver, 870 P.2d 1269 (Colo. App. 1994).   Pension payments from the firemen's pension fund were properly offset against the claimant's benefits for permanent partial disability even though the employer's contributions to the plan were in the form of revenues derived from an ad valorem tax. Keelan v. City & County of Denver, 868 P.2d 1173 (Colo. App. 1994).   Attorney fees were properly deducted before calculation of the offset, so that the claimant and the Colorado Compensation Insurance Authority each bore one-half of the fees. Jones v. Indus. Claim Appeals Office, 892 P.2d 425 (Colo. App. 1994).   Denial of offset for veteran's disability benefits was proper because veteran's disability benefits are not benefits pursuant to a “workers' compensation act” of another state or the federal government. City & County of Denver v. Indus. Claim Appeals Office, 892 P.2d 429 (Colo. App. 1994).   Veteran's disability benefits are not included in section that provides for an offset for benefits payable to an employee under the provisions of a pension or disability plan financed in whole or in part by the employer. City & County of Denver v. Indus. Claim Appeals Office, 892 P.2d 429 (Colo. App. 1994).   The introductory portion to paragraph (d) of subsection (1) and subparagraph (I) of paragraph (d) must be construed together. Bailey v. Lakewood Fire Prot. Dist., 44 Colo. App. 463, 618 P.2d 716 (1980).   Workmen's compensation benefits are reduced when employer has disability pension plan for employees. A reduction in the workmen's compensation benefits otherwise payable to an injured employee is required where the employer, who has himself already paid the cost of workmen's compensation insurance, has also purchased, in whole or in part, a disability pension or annuity plan for his employee. Myers v. State, 162 Colo. 435 , 428 P.2d 83 (1967); Jefferson County Pub. Sch. v. Sago, 786 P.2d 486 (Colo. App. 1989).   And the phrase “pension plan” is used in the broad, generic sense, and if there are to be exceptions, these have to be provided for in a clear and unmistakable manner. Myers v. State, 162 Colo. 435 , 428 P.2d 83 (1967).   Sickness and disability insurance plan does not constitute a pension plan under subsection (1)(d). Miller v. Halliburton Servs., 689 P.2d 662 (Colo. App. 1984), aff'd, 720 P.2d 571 (Colo. 1986).   Plain meaning of subsection (1) requires only that the deduction in benefits paid the claimant be an amount equal “as near as practical” to the employer's proportional contributions to the pension plan. Bailey v. Lakewood Fire Prot. Dist., 44 Colo. App. 463, 618 P.2d 716 (1980).   Offset inapplicable. If the pension plan provides for a reduction equal to the amount of workmen's compensation benefits, the offset in subsection (1)(d) is inapplicable. Masdin v. Gardner-Denver-Cooper Indus., Inc., 689 P.2d 714 (Colo. App. 1984).   Income maintenance benefits are not included in listing of benefits to be offset by any disability annuity payments; to extend the statute to include such benefits would not only be tantamount to indulging in judicial legislation but would ignore the express statutory language. State Comp. Ins. Fund v. Velasquez, 628 P.2d 190 (Colo. App. 1981).   Offset provision in subsection (1)(f) found unconstitutional as applied, because it deprived claimant and others similarly situated of their full entitlement to workers' compensation benefits where their employers choose to contest. Here claimant had applied for unemployment insurance benefits before the conclusion of her temporary total disability benefits and, thus, before reaching maximum medical improvement. Axelson v. Pace Membership Warehouse, 923 P.2d 322 (Colo. App. 1996).   Award for medical expenses held erroneous. An award of compensation for medical expenses incurred for inoculations claimant secured after his exposure to infectious hepatitis was erroneous because (1) infectious hepatitis was not an occupational disease as defined in former article 60 of this title, and (2) mere exposure to a disease does not warrant an award of benefits. City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399 (1976).   It is error for the appellate court to specify in an order of remand the amount of the average weekly wage derived in accordance with this section before the administrative law judge has been given the opportunity to exercise its discretion under this section. Coates, Reid & Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).   The failure of the administrative law judge to determine the average weekly wage for a second injury in accordance with subsection (4) is an abuse of discretion and is not supported by applicable law. Where a claimant suffers serious disability from an initial injury and must return to work in a much lower-paying job, and subsequently suffers a second injury under the same employer, such that the claimant becomes permanently and totally disabled as a result of the combination of the injuries and substantial compensation in the way of permanent partial disability benefits is precluded from the first injury, the average weekly wage is to be determined in accordance with this section. Coates, Reid & Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).   The term “employment” in subsection (1)(g) is not ambiguous and encompasses both modified and regular employment. Colo. Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002).   Where faultless employee is terminated while still temporarily disabled, the resulting wage loss must be attributable to the injury, and an employer must pay temporary disability benefits for any resulting wage loss. Monfort of Colo. v. Husson, 725 P.2d 67 (Colo. App. 1986).   When an employee experiences a worsening of a condition or the development of a disability after termination of employment that is a result of an on-the-job injury, subsection (1)(g) does not apply to terminate employee disability benefitsGrisbaum v. Indus. Claim Appeals Office, 109 P.3d 1054 (Colo. App. 2005).   Section 2-4-108 (1) covers computation of time periods under this section. Thus, the date of the claimant's injury should be excluded from the computation of the three-day waiting period. Ralston Purina-Keystone v. Lowry, 821 P.2d 910 (Colo. App. 1991).   Medical impairment benefits are a form of permanent partial disability within the context of subsection (1)(d). Durocher v. Indus. Claim Appeals Office, 905 P.2d 4 (Colo. App. 1995), aff'd on other grounds sub nom. Mtn. City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996).   Previously existing disability incurred during active military service is not a “permanent partial industrial disability” within the meaning of the statute. Therefore there is no liability to the fund for a prior partial military service connected disability. City & County of Denver v. Indus. Claim Appeals Office, 892 P.2d 429 (Colo. App. 1994).   Applied in Consol. Coal & Coke Co. v. Todoroff, 97 Colo. 125 , 47 P.2d 404 (1935); City of Thornton v. Teeter, 37 Colo. App. 427, 548 P.2d 133 (1976); Romero v. Indus. Comm'n, 632 P.2d 1052 (Colo. App. 1981); Valdez v. United Parcel Serv., 728 P.2d 340 (Colo. App. 1986).