SOCIAL SECURITY DISABILITY OFFSET (RCE 51.32.220)
Adequacy of notice
The six-month limitation on retroactive collection of the offset relates to the date the worker received the benefits, not the dates for which it was paid. ….Billie Davis, 97 3639 (1998) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 98-2-03368-3]
"Average monthly wage"
The "average monthly wage", as used for purposes of computing the social security offset, is determined according to the definition contained in the federal statute. ....Laverne McKenna, 49,873 (1978)
Computation
*The average current wage provisions of 42 U.S.C. 424a, not the definition of wages under Washington State workers' compensation law, governs the calculation of wages for purposes of calculating the social security offset reduction. In re Laverne McKenna, BIIA Dec., 49,873 (1978). Accordingly, the inclusion of a healthcare benefit in wages has no effect on the calculation of the offset. ....Andres Pregillana, Jr., 06 14345 (2007) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No.07-2-01124-4]
In a worker's appeal regarding the calculation of the rate of time-loss compensation benefits and social security offset, where the record indicated both calculations needed to be corrected but would result in lower payments to the injured worker, those benefits may properly be reduced since the calculations are ministerial and the Department cannot ignore the facts established in the appeal. (Distinguishing Brakus v. Department of Labor & Indus., 48 Wn.2d 218 (1956)). ....Loren Denison, 91 5619 (1993) [Editor's Note: The Board's decision was appealed to superior court under Stevens County Cause No. 93-2-0066-7.]
Computation after reentitlement to benefits
The Department is not bound by the original offset computation where Department previously took reverse offset, ceased taking the offset when social security benefits were terminated, and resumed taking the offset after the Social Security Administration resumed benefits. ....Bruce Gelsleichter, 87 2600 (1989) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 89-2-011003.]
Computation based on benefit levels in effect on:
The date of actual notification of concurrent benefits when state periodic benefits commenced before social security benefits. ....Ricky Broderson, 86 4201 (1987)
The date of constructive notification of concurrent benefits. ....Verlin Jacobs, 66,644 (1985); Selma Hayes, 66,196 (1985) ; Charles Hamby, 59,175 (1982)
The date of actual notification of concurrent benefits. ....Donald Clinton, 61,711 (1983); Lee Darbous, 58,900 (1982)
The date of actual notification of concurrent benefits when the worker is noncooperative in disclosing information. ....Lee Darbous, 58,900(1982)
Cost of living increases (COLI's)
Where no offset could be taken when the worker first became entitled to concurrent benefits because the combined state and federal benefits were less than 80 percent of the average current earnings, a future offset can only be taken in the event state cost of living increases have increased the combined benefits so that they exceed the 80 percent limit. Federal cost of living increases cannot be considered to increase combined benefits to the point where an offset can be taken. ....Evelyn Berlin, 86 3615 (1987)
Effective date of offset
The effective date of a social security disability offset is the first month after the Department notified the worker of its intent to take the offset. The Department may only recoup benefits paid for a period of six months prior to the date of notification in RCW 51.32.220. .…Kenneth Beitler, 58,976 (1982) [Overruled, In re Eddy Maupin, BIIA Dec., 03 21206 (2004)]
Limitation on recovery of overpayment (RCW 51.32.230)
The Department's practice of intentionally overpaying time-loss compensation benefits pending adjustments due to the reverse offset permitted by RCW 51.32.220 does not violate the six month limitation for recoupment of overpayments and is permitted by subsection (5) which requires that a worker's benefits not be reduced to less than they would be entitled without the offset. ….Elwyn Netherda, 01 23803 (2002) [Editor's Note: The board's decision was appealed to superior court under King County Cause No. 03-2-00352-2KNT.]
If the delay in payment of time loss compensation benefits was not caused by administrative delay, but instead was due to the lack of medical information to support the payment of the benefits the Department is permitted to offset social security benefits from the retroactive benefits, distinguishing In re Kenneth Beitler, BIIA Dec., 58,976 (1982). ....June McClure, 95 2208 (1996) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No.96-2-02801-2.]
The six month limitation on the recovery of overpayments under RCW 51.32.220 is applicable when the delay in benefits is due solely to bureaucratic inaction following litigation. ....Kenneth Beitler, 58,976 (1982) [special concurrence]
The six month limitation on the recovery of overpayments under RCW 51.32.220 is not applicable when the delay in benefits is caused by litigation. ....James Conrad, 68,967 (1985); Estevan Sambrano, 63,484 (1984) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Yakima County Cause No. 84-2-00851-1.]
Loss of earning power benefits
RCW 51.32.220 permits offset of social security disability payments against temporary total disability benefits and permanent total disability benefits. Loss of earning power benefits are not temporary total disability payments and the Department has no statutory authority to offset these benefits. ....Lannie Sellers, 91 3253 (1993)[Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 93-2-03359-0.]
State offset computed in same manner as federal offset
Where, prior to the initiation of the reverse offset pursuant to RCW 51.32.220, the Social Security Administration has taken the offset pursuant to 42 U.S.C. (424a, the worker should receive the same combined amount of federal and state benefits, regardless of which jurisdiction is taking the offset. ....Herschel Whitaker, 86 3069 (1988)
The worker was receiving both social security disability benefits and state time-loss compensation. From December 1979 to February 1, 1981 the Department took the reverse offset. From February 1981 through October 1984 the Social Security Administration took the offset. After the worker became re-entitled to social security benefits, the Social Security Administration again took the offset from December 1984 up to April 1987. When the Department took over the offset in April 1987, it used the same computation that the Social Security Administration had used. Since the worker should receive the same amount of combined benefits, regardless of which jurisdiction takes the offset, the Department's computation of the offset was correct. ....Bruce Gelsleichter, 87 2600 (1989) [Editor's Note: The Board's decision was appealed to superior court under Kitsap County Cause No. 89-2-00110-3.]
Time loss compensation
The social security disability offset statute, RCW 51.32.220, as compared to the social security retirement offset, RCW 51.32.225, requires the offset be computed in the same manner as the federal government calculates the offset. Where the federal scheme does not provide for separate calculations for offsetting the spouse's or children's portion of the benefits, the offset of social security disability payments against time-loss compensation benefits is based upon the "total family entitlement". (Distinguishing In re Earl F. Lique, BIIA Dec., 88 3334 (1990). ....Park Johnson, 91 3189 (1993)