Myers v. State

Mr. Justice McWilliams

delivered the opinion of the Court.

Glen Myers was employed by the State of Colorado as a yardman at the State Home and Training School. On November 6, 1963 Myers sustained an accidental injury to his hip and leg, the accident admittedly arising out of and in the course of his employment.

Claim was then made for workmen’s compensation benefits. On January 18, 1965 a referee for the Industrial Commission ordered that Myers receive compensation at the rate of $43.75 per week, until the sum of $11,376 was paid to him, for and on account of his permanent partial disability.

On or about April 21, 1965 the Public Employees’ Retirement Association of Colorado, hereinafter referred to as PERA, granted Myers a disability annuity in the amount of $160.79 per month, effective January 6, 1965. This disability annuity also stemmed from the injuries sustained by Myers in the aforementioned accident occurring on November 6, 1963.

Immediately thereafter, the State Compensation Insurance Fund, pursuant to C.R.S. 1963, 81-12-1 (5) (a) and (b), asked the Industrial Commission to reduce the monthly workmen’s compensation benefits due Myers in an amount equal to one-half the monthly disability annuity theretofore granted Myers by the PERA. In other words, the Fund asked that the monthly compensation benefit be reduced in the amount of $80.40.

The Industrial Commission denied the request of the Fund for a reduction in compensation benefits, and ordered that the Fund continue to pay benefits at the rate of $43.75 per week, with such weekly payments to continue till Myers was paid a total of $11,376.

In due time the Fund sought and obtained judicial review of this particular matter. The trial court, after hearing, set aside the award of the Commission and held that the monthly compensation benefits to Myers should be reduced in an amount proportional “to the employer’s percentage of total contributions to the Employees Pension Plan.” By writ of error Ruth E. Myers, the widow of Glen Myers, and the Industrial Commission now seek reversal of the judgment thus entered.

The narrow issue here to be resolved is whether C.R.S. 1963, 81-12-1 (5) (a) and (b) applies to a PERA disability annuity. We hold that it does. The statute with which we are here concerned reads as follows:

“5 (a) In cases where it is determined that periodic disability benefits are payable to an employee under the provisions of a pension plan financed in whole or in part by the employer, hereinafter called ‘employer pension plan,’ the weekly benefits payable pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to such employer pension plan benefits, with the following limitations:

“(b) Where the employee has contributed to the employer pension plan, weekly benefits will be reduced under this section only in an amount proportional to the employer’s percentage of total contributions to the employer pension plan”; ....

It is initially argued that C.R.S. 1963, 81-12-1 (5) (a) and (b) is simply not broad enough to encompass a PERA disability annuity. This particular argument is presented to us in several variations. For example, it is said that the aforementioned statute does not apply to state employees; that the statute is limited to private pension plans; that the statute applies to temporary disability benefits, and not to permanent disability awards; and that the statute relates only to pensions, and not to annuities.

In this general regard it is argued that for us to hold that a PERA disability annuity is included within the aforementioned statute would constitute judicial legislation. With this line of reasoning we do not agree. On the contrary, we are of the firm view that for us to except PERA disability annuities from the effect of this statute would itself amount to judicial legislation, and of a rather obvious variety. The judiciary would then be creating an exception which the legislature did not see fit to create. This we should not do. Estate of Bourquin, 84 Colo. 275, 269 Pac 903.

The statute with which we are here concerned provides that when periodic disability benefits are payable to an employee under the provisions of a pension plan financed in whole or in part by the employer, then the “weekly benefits payable” under workmen’s compensation shall be reduced, with the reduction formula then being spelled out in the statute. It is at once apparent, then, that by its very terms the statute is not limited to private employees, as opposed to state employees; nor is it restricted to private pension plans. Furthermore, its application is not confined to temporary disability benefits, as opposed to a permanent disability award.

It should be noted that the statutory definitions of “employees” and “employer” are such as to quite definitely include employees of the state. C.R.S. 1963, 81-2-7 and C.R.S. 1963, 81-2-6(1). So, when the statute uses the word “employee,” the General Assembly meant to include employees of the state, as well as so-called “private” employees.

Nor do we feel it necessary to get into a semantics battle concerning the difference between “pension” and an “annuity.” There is a difference, of course. But it is hard to believe that the General Assembly intended to except disability payments under PERA on the basis that such was an annuity, and not a pension. The General Assembly used the phrase “pension plan” in the broad, generic sense, and if there are to be exceptions, these will have to be provided for in a clear and unmistakable manner.

Actually, then, the precise issue to be resolved is just what interpretation should be given 81-12-1 (5) (a) and (b). We choose not to give it the rather narrow and limited interpretation suggested by our dissenting brethren, as to do so would in our view thwart the legislative intent. To us, at least, it is rather obvious that the General Assembly intended to require a reduction in the workmen’s compensation benefits otherwise payable to an injured employee 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. The General Assembly was of the view that 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. See in this regard, City of Los Angeles v. Industrial Commission, 63 Cal. 2d 242, 404 P.2d 801, 46 Cal. Rptr. 97.

Suggestion is also made that this controversy should be governed by the statutes creating PERA. In this regard it is quite true the General Assembly in 1931 did declare that PERA annuities should be “in addition to any benefits accruing to a state employee under the workmen’s compensation act.” This does not mean, however, that the General Assembly is thereafter powerless to reduce workmen’s compensation benefits to reflect that portion of the PERA disability annuity which has been financed and paid for by the employer.

Finally, it is contended that C.R.S. 1963, 81-12-1-(5) (a) and (b) is unconstitutional. We do not perceive any constitutional infirmity in this statute. Workmen’s compensation benefits are fixed by statute, and the statute not only creates, but measures, the benefits to be thus received.

It is to be noted that we are not here concerned with the “wisdom” of the legislative pronouncement under consideration. There could be, and undoubtedly was, a considerable difference of opinion within the General Assembly as to whether this reduction in workmen’s compensation benefits was “sound” from the sociological and economic point of view. But this is a matter to be determined by the legislature, not the judiciary, and the General Assembly has now resolved that dispute. The only concern of the judiciary in this circumstance, then, is to determine whether these legislative efforts in anywise offend the basic law of the land. We hold that the various provisions of C.R.S. 1963, 81-12-1 (5) (a) and (b) do not impinge on any of the rights guaranteed by either the state or federal constitution.

Finally, it should be emphasized that we are here only concerned with whether there should be a reduction in the weekly workmen’s compensation benefits because of the granting of a PERA disability annuity. Our holding that there should be a reduction in the weekly compensation benefits is not to be considered as any authority for a proportionate reduction in the aggregate total of workmen’s compensation benefits due the injured employee, or, in this case, due the injured employee’s widow. The contention that the aggregate total of workmen’s compensation benefits should also be reduced in the same proportion as the weekly compensation benefits was considered, and rejected, by us in Industrial Commission v. Rowe, 162 Colo. 248, 425 P.2d 274.

As we understand the judgment heretofore entered by the trial court, only the weekly benefits were ordered to be reduced because of the PERA disability annuity paid Myers, and the trial court, insofar as we are advised, did not make any order whatsoever concerning the aggregate total amount of compensation benefits due Myers’ widow. Furthermore, our examination of the record discloses that, after making certain deductions for benefits already paid Myers, the Commission declared that the “new balance” still due Myers was $4,655.20, “depending upon the order of court.” Our holding in the instant case is, then, that only the weekly benefits due Myers’ widow, are to be reduced as above indicated, and in so holding we are not decreeing or in anywise suggesting that there should also be a proportionate reduction in the total amount of compensation benefits still due and owing Myers’ widow.

The judgment is affirmed.

Mr. Justice Day and Mr. Justice Pringle dissent.