PENSION RESERVE
Calculation
The Department's use of Table C to calculate the pension reserve is consistent with RCW 51.44.070(1) because the statute directs the Department to take into account the experience of the reserve fund in setting annuity values. That the table might not accurately represent current differences in life expectancy does not invalidate the use of Table C because its use adequately reflects the experience of the reserve fund. ....Jose Sanchez, Dec'd., 01 19644 (2004) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 04-2-00582-4.]
Deduction of prior permanent partial disability award (RCW 51.32.080(4) (Previously RCW 51.32.080(2))
The date of an order closing the claim and paying an award for permanent partial disability, which the Department subsequently modifies from final to temporary, can be the date of first instance for purposes of calculating the pension reserve. ....Jose Rios, 07 15155 (2008) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 08-2-00702-1.]
The date of first instance for purposes of deducting awards made for permanent partial disability from the pension reserve must be established by a formal order determining the extent of permanent disability. The date of a cash advance on the permanent partial disability award does not establish the date of the first instance pursuant to RCW 51.32.080(4) ….Michael Woodley, 01 16625 (2002)[Editor's Note: The Board decision was appealed to superior court under Clallam County Cause No. 02-2-00852-9]
RCW 51.32.080(2) directs the Department, where permanent total disability follows permanent partial disability, to deduct a permanent partial disability award from the pension reserve and to reduce the worker's monthly payments accordingly to the extent the award exceeds the amount of benefits that would have been paid the worker if permanent total disability compensation had been paid in the first instance. The "first instance" refers to the first time that the worker receives a permanent partial disability award. Overruling In re Marshall Stuckey, BIIA Dec., 89 5977 (1991); In re Eleanor Lewis, BIIA Dec., 86 4139 (1988). ....Esther Rodriguez, 91 5594 (1993)
Where the evidence indicates second injury fund relief is appropriate, the self-insured employer is entitled to have the pension reserve charged against the second injury fund as of the date of onset of the worker's permanent total disability, not the date the Department identified as the date it was placing the worker on the pension rolls. ....Harold McCormack, 90 3178 (1992)
RCW 51.32.080(2) directs the Department, where permanent total disability follows permanent partial disability, to deduct a permanent partial disability award from the pension reserve and reduce the worker's monthly payments accordingly, to the extent the award exceeds the amount that would have been paid the worker if permanent total disability compensation had been paid in the first instance. The Department should not deduct the permanent partial disability award from retroactive time loss compensation. Citing In re Eino Antilla, BIIA Dec., 21,097 (1963). ....Marshall Stuckey, 89 5977 (1991) (Overruled, In re Esther Rodriguez, BIIA Dec., 91 5594 (1993))
For purposes of calculating the extent to which the pension reserve may be reduced by a prior permanent partial disability award, the "first instance", as used in RCW 51.32.080, is when the Department first determined that the worker had a particular permanent partial disability and began paying compensation therefore. In this case, there were two dates of "first instance" since the Department increased the permanent partial disability award after the claimant protested the initial closure. ....Dominga Rodriquez, 86 4340 (1988) (Overruled to the extent decision is inconsistent with In re Esther Rodriguez, BIIA Dec., 91 5594 (1993))
Only the excess of a permanent partial disability award over the amount the worker would have received had he been awarded a pension in the first instance can be deducted from the pension reserve. ....Eleanor Lewis (I), 86 4139 (1988) (Overruled, In re Esther Rodriguez, BIIA Dec., 91 5594 (1993)); Wade Chriswell, 43,742 (1974) (Overruled to the extent decision is inconsistent with In re Esther Rodriguez, BIIA Dec., 91 5594 (1993))
Compensation for and periods of temporary disability may not be considered in determining the extent to which the pension reserve will be reduced by a prior permanent partial disability award. ....John Jensen (II), 32,619 (1970) (Overruled to the extent decision is inconsistent with In re Esther Rodriguez, BIIA Dec., 91 5594 (1993))
Reduction
Where a worker has received time-loss compensation prior to becoming totally, permanently disabled, the amount of such time loss cannot be included in any reduction of the pension reserve determined pursuant to RCW 51.32.080(4). ....Eddy Maupin, 04 14768 (2005)[Editor's Note: The Board's decision was appealed to superior court under Clallam County Cause No. 05-2-01161-3.]
Standard of Review
The Department's decision on the appropriate pension reserve amount is reviewable on a preponderance of the evidence standard. ....Jose Sanchez, Dec'd., 01 19644 (2004) [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 04-2-00582-4.]