4-221-814 (2002). MARTIN HENDRICKSON.

• Case Date: October 15, 2002
• Court: Colorado

Colorado Workers Compensation 2002. 4-221-814 (2002). MARTIN HENDRICKSON INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF MARTIN HENDRICKSON, Claimant , v. SPITZER MASONRY, Employer, and PINNACOL ASSURANCE, Insurer, Respondents.W. C. No. 4-221-814FINAL ORDER The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which permitted the respondents to claim an overpayment of benefits for several periods of time during which the claimant received benefits but was incarcerated. The claimant argues that during the disputed periods of time he was not incarcerated "following conviction" within the meaning of § 8-42-113(1), C.R.S. 2002. The claimant also argues the respondents waived the claim for overpayment. Finally, the claimant contends the ALJ erred in denying penalties because the respondents violated § 8-42-113(2), C.R.S. 2002, by failing promptly to reinstate the claimant's benefits after he was released from confinement. We affirm. The claimant sustained a compensable injury in 1994 and reached maximum medical improvement (MMI) on October 31, 1996. The claimant received an award of permanent partial disability benefits, and the respondents made regular payments for this award which included the periods January 16, 1998 through January 20, 1998, and May 14, 1998 through July 17, 1998. In 1999 the claimant filed a petition to reopen and a hearing was held on June 28, 1999. An order was entered reopening the claim and temporary total disability benefits were awarded retroactive to February 8, 1999. The insurer resumed payment of temporary benefits pursuant to the order. The ALJ found that on January 16, 1998, the claimant entered a guilty plea to a felony charge of possession of a controlled substance. The claimant, who had been arrested for the charge in November 1997, remained in jail until January 20, 1998, when he was sentenced to probation and released. On May 14, 1998, the claimant was arrested on a bench warrant for a misdemeanor harassment charge. On May 15, 1998, the claimant pled guilty to the charge and was sentenced to 60 days in jail. The ALJ found the claimant was released on July 17, 1998. The claimant failed to comply with the terms of probation on the drug charge and was arrested "at the June 28, 1999 hearing on the petition to reopen." Apparently, the claimant was released the same day. The claimant again failed to comply with probation and was arrested on September 18, 1999. Probation was revoked on September 27, 1999. The claimant remained incarcerated from September 18 through November 5, 1999, when he failed to return after a four-hour medical furlough. The claimant was then arrested and confined on December 21, 1999. On February 14, 2000, the claimant was formally sentenced to four years in prison. He was incarcerated until March 20, 2001, when he was released. The insurer filed an admission of liability terminating the claimant's temporary disability benefits on January 7, 2000, when the insurance adjuster first learned of the confinement after conviction. This admission reserved the right to recoup overpayments. On March 27, 2001, the insurer received a letter from claimant's counsel notifying the insurer of the claimant's release from prison and requesting reinstatement of temporary disability benefits. The letter enclosed a report of the treating physician stating the claimant was examined on March 20 and was unable to work. Th insurer did not immediately reinstate temporary disability benefits, but "investigated" the claim by requesting medical records from the Department of Corrections and the treating physician. Th adjuster testified it was necessary to ascertain whether the claimant may have been reinjured in prison and to determine whether he was working under a release program. (Tr. Pp. 43, 56). The insurer then reinstated temporary disability benefits, retroactive to March 12. The claimant received a check on May 3, 2001, and an admission of liability was filed on May 9, 2001. The claimant filed an application for hearing alleging the respondents violated § 8-42-113(2) because they failed promptly to restore temporary disability benefits after notice of the claimant's release from prison. The respondents filed a response alleging an overpayment of benefits because they paid...