3-902-709 (1998). ERIC E. CHANDLER.

• Case Date: July 07, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 3-902-709 (1998). ERIC E. CHANDLER INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF ERIC E. CHANDLER, Claimant, v. UNITED AIRLINES, INC., Employer, and SELF-INSURED, Respondent.W. C. No. 3-902-709FINAL ORDER The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ), which granted the respondent's petition to suspend temporary total disability benefits. The claimant contends the ALJ should have found that the respondent waived its right to recover an overpayment of benefits. We affirm the ALJ's order. This matter was previously before us. In our Order of Remand, dated December 22, 1997, we set aside the ALJ's order of July 11, 1997, and remanded with directions to enter specific findings of fact and conclusions of law "concerning whether or not the respondent's conduct amounts to waiver of its right to claim an offset based on the claimant's receipt of the retroactive SSDI award, and the claimant's receipt of pension disability benefits." Our order contains a statement of the relevant facts, and we need not repeat them here. In his order of March 4, 1998, the ALJ credited the testimony of the respondent's insurance adjuster. The adjuster testified that since the claimant's 1988 injury there have been at least five, and possibly as many as eight, different adjusters assigned to the file. Further, the adjuster testified that the respondent's worker's compensation records do not show the claimant was receiving employer-funded retirement benefits, and she did not become aware of this fact until two months before the hearing. Under these circumstances, the ALJ concluded that the respondent did not voluntarily, knowingly, or intelligently waive its right to claim an offset against future benefits based on the claimant's receipt of employer-financed disability benefits and retroactive social security disability insurance (SSDI) benefits. The ALJ was persuaded by evidence that the respondent's worker's compensation adjusters did not become aware of the employer-financed benefits until shortly before the hearing. Moreover, the ALJ implicitly recognized the respondent claimed the SSDI offset as soon as it became aware of the SSDI benefits in 1994, and its only failure was to seek immediate recoupment of the $17, 818 in retroactive benefits. (See Respondent's...