dissenting.
I respectfully dissent.
I agree that the rationale behind the set-off provisions of § 8-51-101(l)(c), C.R.S. 1973, is to prevent duplication of benefits. However, the Colorado Workmen’s Compensation Law does not provide for cost-of-living increases. Therefore, preservation of the entire federal cost-of-living benefit to the claimant would not result in a duplication of benefits.
The source of federal disability insurance benefits is 42 U.S.C. § 423, and 42 U.S.C. § 415 explains the computation of the “primary insurance amount” for all social security benefits. Section 415(i), entitled “Cost-of-living increases in benefits,” provides that if the Consumer Price Index increase exceeds 3%, the primary insurance amount is increased accordingly. The relationship between federal benefits and state benefits is explained in 42 U.S.C. § 424a, which provides that, when a claimant receives both social security and state workers’ compensation payments, the social security payments may be reduced until, when combined with the state payments, they equal 80% of the claimant’s average current earnings unless the state law also provides for a reduction of benefits payable to persons receiving social security payments. Since § 8-51— 101(l)(c), C.R.S.1973, provides for such a reduction in state benefits, there is no reduction in social security payments under 42 U.S.C. § 424a(d). Thus, duplication of primary benefits is avoided by the state and federal provisions.
I agree with the Montana Supreme Court in McClanathan v. Smith, Mont., 606 P.2d 507 (1980) that it is not “equitable or necessary” that the state reclaim 50% of the claimant’s federal cost-of-living increases to avoid duplication.
“The benefits to which [the claimant] is entitled under 42 U.S.C. § 423 are disability benefits, not cost-of-living benefits .... [T]he provisions of 42 U.S.C. § 424a(d) allowing the states to provide an offset contemplate only the benefits recoverable under 42 U.S.C. § 423, relating to the individual’s primary insurance benefits. Therefore, we hold that the state offset may not be used to reduce the benefits accruing to the [claimant] under the cost-of-living increases provid*1227ed in 42 U.S.C. § 415.” 606 P.2d at 511-12.
While it is true that § 8 — 51—101(l)(c), C.R.S.1973, does not distinguish between an initial award of periodic benefits and subsequent cost-of-living increases, the section does provide that, “if provisions of the [Social Security Act] should be amended to provide for a reduction of an individual’s disability benefits thereunder because of compensation benefits payable [by the State], the reduction of compensation benefits ... shall be decreased by an amount equal to such federal reduction.” Thus, the statute reveals a legislative intent that the total package of benefits received by the claimant will not be reduced by an amount more than 50% of the original award. The social security cost-of-living increases are aimed at preserving, not increasing, the buying power of the original award, and the reduction of such benefits by 50% would have the effect of reducing the original award, a result not intended by the General Assembly.
I believe the claimant is entitled to preservation of the original award by means of federal cost-of-living increases. Therefore, I would not permit such increases to be reduced by the state compensation fund.