|IN RE: RICKY A. BRODERSON||)||DOCKET NO. 864201|
|CLAIM NO. H-558381||)||DECISION AND ORDER|
- Claimant, Ricky A. Broderson, by
- Gerald L. Casey
- Employer, Lile International Companies,
- Department of Labor and Industries, by
- The Attorney General, per
- William R. Strange
This is an appeal filed by the claimant on November 21, 1986 from an order of the Department of Labor and Industries dated October 31, 1986 which adhered to the provisions of a prior order which reduced time loss compensation to $581.69 per month effective July 1, 1986, due to the claimant's receipt of social security benefits. Affirmed.
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the claimant to a Proposed Decision and Order issued on February 26, 1987 in which the order of the Department dated October 31, 1986 was affirmed.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed. 
The issue presented by this appeal is whether Mr. Broderson's 1980 or 1986 state and federal benefit levels should be used in calculating the social security reverse offset pursuant to RCW 51.32.220. The evidence is accurately set forth in the Proposed Decision and Order and will not be discussed at length here.
On August 24, 1979, Mr. Broderson first became entitled to state time loss compensation benefits, commencing August 4, 1979. On December 24, 1980, he first became entitled to social security disability payments, retroactive to January, 1980.
In computing the offset pursuant to RCW 51.32.220, the Department of Labor and Industries used the state and federal benefit levels in effect as of July 1, 1986. Mr. Broderson argues that the offset should have been calculated by reference to the lower benefit levels of 1980, when he first became entitled to concurrent state and federal periodic benefits. In particular, he contends that state and federal cost of living increases since 1980 cannot be included in the computation.
In a number of prior decisions we have detailed the history and intent of the social security reverse offset statute. E.g. In re Lee Darbous, BIIA Dec., 58,900 (1982). We will therefore not reiterate that discussion here. Suffice it to say that RCW 51.32.220(1) provides that the state reverse offset should be calculated in the same manner as provided by 42 U.S.C. § 424a. That is, the worker should be placed in the same position whether the Social Security Administration or the Department of Labor and Industries or the self-insured employer takes the offset.
42 U.S.C. § 424a(a)(1) provides for computation of the offset based on the benefit levels in the month that the worker becomes  entitled to both state and federal periodic benefits, provided that the Secretary has, in a prior month, received notice that the worker is receiving concurrent benefits. The question of when Mr Broderson became entitled to concurrent state and federal benefits is relatively easy to ascertain. That date is January 1980. It is the question of when the Department was notified that Mr. Broderson was receiving social security benefits which is in dispute.
That notification date is critical under both 42 U.S.C. § 424a(a)(1) and RCW 51.32.220(2). The latter section provides that subsection 1 of RCW 51.32.220 (which mandates that the state computation should be identical to the federal computation) "shall be effective the month following the month in which the department or self-insurer is notified by the federal social security administration that the person is receiving disability benefits under the federal old-age, survivors and disability insurance act...."
This Board has had occasion to interpret this statutory notification requirement in a number of prior decisions. In re Verlin Jacobs, BIIA Dec., 66,644 (1985); In re Selma Hayes, BIIA Dec., 66,196 (1985); In re Donald Clinton, BIIA Dec., 61,711 (1983); In re Charles Hamby, BIIA Dec., 59,175 (1982); In re Lee Darbous, BIIA Dec., 58,900 (1982). Our decision in Hayes contains a good summary of most of these decisions. The rule which has evolved through time is formulated in Hayes as follows:
"Our prior decisions show that the Department has been held to have been put on notice of concurrent entitlement for the purpose of determining what benefit levels to reference in its offset computation, from the date that temporary total or permanent total workers' compensation benefits were commenced except where such date preceded the date that federal SSDI benefits were commenced. It was  felt that the Department ought to be held to have been put on notice when concurrent entitlement in fact existed and inquiry at that time would have so revealed. However, when in fact concurrent entitlement did not exist at the time of commencement of periodic state benefits or a decision regarding federal entitlement was made retroactive subsequent to the date of commencement of state benefits, the Department ought not to be held to have been put on notice until such time as its own records revealed the probable existence of that fact." Hayes at 7-8.
That is, if state periodic benefits commence before social security benefits, then the level of benefits in effect on the date the Department received actual notice (from whatever source) of the worker's subsequent entitlement to concurrent social security benefits is used in the offset calculation. See in particular In re Donald F. Clinton, BIIA Dec., 61,711 (1983).
In the instant appeal, Mr. Broderson's state time loss compensation benefits commenced in August of 1979 and he did not become entitled to social security benefits until January of 1980. Thus the date on which the Department had actual notice that Mr. Broderson was receiving concurrent social security disability payments is the critical date for determining what benefit levels should be used in calculating the social security reverse offset.
We have reviewed the record to determine if Mr. Broaderson has established that the Department had actual notice of his receipt of concurrent social security benefits prior to June of 1986. While the record establishes that Mr. Broderson and his attorney were notified of Mr. Broderson's entitlement to social security disability benefits on January 6, 1981, retroactive to January, 1980, nothing in the record indicates that the Department was ever notified of this concurrent  entitlement prior to June, 1986. Nor is there any suggestion in the record that the Department's delay in taking the offset was the result of "bureaucratic delay" as alleged in claimant's Petition for Review. For all that appears in the record, the delay was just as likely caused by Mr. Broderson's failure to timely disclose the requisite information. At any rate, Mr. Broderson, as the appealing party, had the burden of establishing that the Department order taking an offset based on the benefit levels in effect as of July 1, 1986 was incorrect. This he has failed to do.
If Mr. Broderson's benefit levels were forever fixed for purposes of offset computation on the date he was first eligible for both federal and state benefits, then he would only benefit by concealing the fact that he was receiving concurrent benefits for as long as possible. Even without specific concealment, he would be discouraged from releasing information so that the information gathering period could be prolonged. In the interim, he would be permitted to keep excessive combined benefits for the same disability.
The evidence indicates that the Department calculated the offset in compliance with the intent of both state and federal statutes. Mr. Broderson has had the benefit of full social security and worker's compensation payments from 1980 until 1986. He has had the benefit of all state and federal cost of living increases in the meantime, which by 1986 afforded him a yearly income of $21,060.00, greatly in excess of his prior salary. Although state cost of living increases will be taken into account in future redeterminations of the offset (42 U.S.C. § 424a(f)(1) and 20 CFR § 404.408(k)), Mr. Broderson will enjoy further federal cost of living increases in the future. He cannot now be heard  to complain that he did not insist upon having his worker's compensation benefits offset in 1980.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire record before us, we are persuaded that the Proposed Decision and Order is supported by the preponderance of the evidence and is correct as a matter of law.
FINDINGS OF FACT
1. On August 14, 1979 claimant filed an application for benefits with the Department of Labor and Industries alleging the occurrence of an industrial injury on July 19, 1979 while in the course of employment with Lile International Companies. On August 24, 1979 provisional time loss compensation benefits were commenced effective August 4, 1979 and on September 11, 1979 a determination order was issued, paying time loss compensation for the period beginning August 19, 1979.
On January 4, 1982 the Department issued an order closing the claim with a permanent partial disability award equal to 10% of the amputation value of the right leg and 15% as compared to total bodily impairment for a back impairment, paid at 75% of its monetary value. On January 14, 1982 the claimant filed a protest with the Department. On August 13, 1982 the January 4, 1982 order was held for naught and the claim was held open for further treatment, with the permanent partial disability award to be considered as an advance on future benefits.
The Department issued further orders paying time loss compensation and on June 25, 1986 the Department issued an order declaring that an offset would be taken for social security benefits, reducing time loss compensation to $581.69 per month, effective July 1, 1986. On July 14, 1986 the claimant filed a protest with the Department.
On October 31, 1986 the Department issued an order adhering to the provisions of its order dated June 25, 1986. On November 21, 1986 the claimant filed a notice of appeal with the Board of Industrial Insurance Appeals. On December 19, 1986 the Board issued an order granting the appeal subject to  proof of timeliness, assigning it Docket No. 86 4201 and directing that hearings be held on the issues raised by the appeal.
2. Ricky Broderson sustained an industrial injury on July 19, 1979 while in the course of employment with Lile International Companies. He first became entitled to state time loss compensation benefits on August 4, 1979. He first became entitled to federal social security benefits in January of 1980.
3. The Department of Labor and Industries first offset Mr. Broderson's time loss compensation benefits pursuant to RCW 51.32.220 effective July 1, 1986, reducing claimant's monthly time loss compensation payment to $581.69. In calculating the social security reverse offset, the Department used the state and federal benefit levels in effect as of July 1, 1986. Mr. Broderson's state benefit level was $1,168.00 per month as of July 1, 1986 and his federal benefit level was $587.00 per month as of July 1, 1986.
CONCLUSIONS OF LAW
- Claimant's appeal was timely filed and the Board of Industrial Insurance Appeals has jurisdiction over the parties and subject matter of this appeal.
- The action of the Department of Labor and Industries in reducing Mr. Broderson's time loss compensation benefits based upon his state and federal benefit levels as of July 1, 1986 was correct pursuant to RCW 51.32.220 and 42 U.S.C. § 424a.
- The order of the Department of Labor and Industries dated October 31, 1986 which adhered to the provisions of its prior order dated June 25, 1986 which reduced the claimant's time loss compensation to $581.69 per month effective July 1, 1986 due to the claimant's receipt of social security benefits, is correct and should be affirmed.
It is so ORDERED. 
Dated this 9th day of September, 1987.
BOARD OF INDUSTRIAL INSURANCE APPEALS
SARA T. HARMON Chairperson
PHILLIP T. BORK Member