4-209-907 (1998). JOHN P. LEMBERG (Final Order).

• Case Date: July 06, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-209-907 (1998). JOHN P. LEMBERG (Final Order) INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF JOHN P. LEMBERG, Claimant, v. ANKMAR DOOR SALES, INC., Employer, and FIREMEN'S FUND INSURANCE COMPANY, Insurer, Respondents.W. C. No. 4-209-907FINAL ORDER The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ), permitting the respondents to credit the claimant's proceeds from a third-party settlement against liability for permanent partial disability benefits. The claimant argues the respondents waived or are estopped from asserting the credit. We affirm the ALJ's order. The claimant sustained compensable injuries on February 28, 1994, and filed a claim for workers' compensation benefits. Firemen's Fund Insurance Companies (Firemen's Fund), as insurer for the claimant's employer, commenced payment of workers' compensation benefits. The claimant also brought a civil suit against two third-party defendants alleging their negligence caused the injuries. On August 11, 1995, Firemen's Fund filed a Final Admission of Liability in the workers' compensation case. Firemen's Fund admitted liability for $56,010.30 in medical benefits, $25,300.23 in temporary disability benefits, and $34,699.77 in permanent partial disability benefits. The permanent disability payments commenced on July 8, 1995. The ALJ noted that the admitted liability approximates $120,000. On October 2, 1995, the claimant, his attorney, and the defendants in the third-party lawsuit attended a settlement conference. Although Firemen's Fund did not participate in the conference, the claimant's attorney telephoned the Firemen's Fund insurance adjuster and kept her apprised of the proceedings. Ultimately, all parties, including Firemen's Fund, agreed to settle the third-party suit for $55,000. At the time of the settlement, Firemen's Fund had paid $84,840.72 in workers' compensation benefits. It is undisputed that the third-party settlement agreement contains no provisions concerning Firemen's Fund's right to credit any proceeds of the settlement against its future liability for permanent partial disability benefits. However, the ALJ found that the claimant's attorney and the insurance adjuster discussed Firemen's Funds's workers' compensation lien during the settlement negotiations. The claimant's attorney testified that he agreed to pay Firemen's Fund $11,000 to settle the outstanding lien, and that the adjuster agreed to waive Firemen's Fund's right to offset the claimant's third-party proceeds (approximately $23,260) against unpaid permanent disability benefits. Although the attorney admitted he never used the term "future credit" in his conversations with the adjuster, he testified that he mentioned the "figure of $120,000" during the discussions. Conversely, the Firemen's Fund adjuster testified she was "uncertain" whether the claimant's attorney ever mentioned the amount of $120,000, but if he did, she understood it to be a "mistake." The adjuster also...