| IN RE: LOIS OAKLEY | ) | DOCKET NO. 87 3830 |
| ) | ||
| CLAIM NO. J-187589 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, Lois Oakley, by
- Gerald L. Casey
- Employer, Geiger Port Orchard Pharmacy, by
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Jerome E. Westby and Art DeBusschere, Assistants
This is an appeal filed by the claimant on November 23, 1987 from a letter decision of the Department of Labor and Industries dated November 12, 1987. The letter stated that the claimant's reduced workers' compensation rate of $440.01, due to her receipt of social security retirement benefits, was established by an order dated August 11, 1986 which was now final and binding; determined that without additional information that might alter the Department's calculations, no change in her compensation rate was appropriate; and reiterated that the application of RCW 51.32.225 to Ms. Oakley's claim was appropriate. Affirmed.
ISSUES
- Whether the time-loss compensation benefits received by the claimant, Lois Oakley, are subject to the social security retirement offset created by RCW 51.32.225? [2]
- Whether the Department's failure to promulgate rules governing the calculation of the social security retirement offset prohibits the Department from taking an offset?
- Whether social security retirement benefits received by the claimant should be considered "wages" for purposes of calculating her "average current earnings"?
DECISION
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 Department of Labor and Industries to a Proposed Decision and Order entered on September 14, 1988 in which the letter of the Department dated November 12, 1987 was reversed; time-loss compensation orders issued since July 1, 1986 which offset the claimant's time-loss compensation by social security retirement benefits were held invalid; and the claim was remanded to the Department with instructions to reimburse the claimant for the amount of time-loss compensation which had been offset due to her receipt of social security retirement benefits.
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 claimant, Lois Oakley, was born July 30, 1915. She commenced receiving social security retirement benefits at the age of 62, in 1978. Her initial social security retirement benefit was $149.00 per month. Ms. Oakley continued working after she began receiving retirement benefits. Her highest earnings were $9,672.33 for the year 1981. In that year her rate of social security retirement benefits was [3] $287.10, but she received only $227.10 because of a $60.00 per month overpayment deduction due to her excess earnings.
Ms. Oakley sustained her industrial injury on October 22, 1982 and thereafter commenced receiving time-loss compensation. Her initial time-loss compensation rate was $600.60 per month. As of July 1, 1986, her time-loss compensation rate was $666.31 per month.
By order dated August 11, 1986 the Department reduced the claimant's monthly compensation rate to $440.01 effective July 1, 1986 due to her receipt of social security retirement benefits. According to Victoria A. Kennedy, a Department social security adjudicator, this new benefit amount was calculated by subtracting a social security retirement amount of $226.30. In fact Ms. Oakley's monthly social security benefits in 1986 were $399.51, but Ms. Kennedy had disregarded federal cost of living adjustments (COLA's) which had been provided to Ms. Oakley. The offset figure, however, did include additional wage credits earned by the claimant because of wages earned after she had begun receiving social security retirement benefits in 1978. This explained the difference between the offset of $226.30 and the original social security retirement figure of $149.00.
According to Ms. Kennedy the Department has not adopted nor does it plan to adopt any rules concerning the calculation of the social security retirement offset. Under policies developed by the Department, the social security retirement offset required by RCW 51.32.225 is calculated essentially the same as the social security disability offset authorized by RCW 51.32.220. Under the Department's formula for computing the retirement offset, a worker's combined benefits cannot exceed the highest of (1) 80% of the claimant's highest [4] year's earnings computed from any year in the claimant's working life; (2) the claimant's full time-loss compensation rate; or (3) the original social security retirement rate plus any additional rate wage credits. This formula differs from that used under the social security disability offset by virtue of the fact that the highest year's earnings can be computed from any year, as opposed to the highest year's wages during the five year period preceding the year in which the worker became disabled. See 42 U.S.C. ] 424a(a). Ms. Kennedy explained that the Department based the offset calculation on Ms. Oakley's time-loss compensation benefits as opposed to using 80% of Ms. Oakley's highest year's wages because Ms. Oakley had not provided the wage information and because it apparently worked to Ms. Oakley's benefit. Ms. Kennedy explained that the Department does not consider social security retirement benefits as "wages" for purposes of computing a worker's "highest year's wages."
The claimant has raised a number of objections to the social security retirement offset. She contends that RCW 51.32.225 does not apply to her because she has a vested right in the amount of time-loss compensation she can receive. She claims that the retirement offset statute has no retroactive application and that applying this statute to her is contrary to legislative intent. She states that RCW 51.32.225 does not apply to claims based on injuries which occurred prior to its effective date. She makes a general allegation that the statute is unconstitutional and states that the offset is either prohibited by federal law or constitutes "an unconstitutional preemption of a federal agency's offset prerogative." Claimant's Reply [5] Memorandum to Petition for Review, at 15. She also contends that the retirement offset only applies to persons under the age of 65.
In addition, the claimant raises a number of objections concerning the calculation of the offset. She alleges that RCW 51.32.225 requires that the computation of the offset not exceed that allowed by 42 U.S.C. § 424a. She also maintains that pursuant to 42 U.S.C. § 409(r) and 20 C.F.R. 404.428, her social security retirement benefits should be included within the definition of wages for the purpose of computing her highest year's wages. Finally, she maintains that because the Department has not adopted any rules governing the calculation of the social security retirement offset pursuant to RCW 34.04, the Administrative Procedures Act, the Department is without authority to take such an offset.
APPLICABILITY OF RCW 51.32.225
RCW 51.32.225 states:
Reduction of compensation for temporary or permanent total disability--Offset for social security retirement benefits
(1) For persons receiving compensation for temporary or permanent total disability under this title, the compensation shall be reduced by the department to allow an offset for social security retirement benefits payable under the federal social security, old age survivors, and disability insurance act, 42 U.S.C. This reduction shall not apply to any worker who is receiving permanent total disability benefits prior to July 1, 1986.
(Emphasis added) It is Ms. Oakley's contention that the social security retirement offset does not apply to her because her benefits are determined by the law in effect on the date of her industrial injury. In support of this contention she cites Ashenbrenner v. Department of Labor and Industries, 62 Wn.2d 22 (1963). Since she was [6] injured prior to July 1, 1986 (the effective date of the statute) she believes the retirement offset is not applicable to her claim. However, the more accurate description of the holding in Ashenbrenner is that a statute will not be held to apply retrospectively in the absence of language clearly indicating such a legislative intent. The "Ashenbrenner rule", that the law in effect on the date of injury will control the rights of the worker, is simply a presumption which the courts will apply in the absence of legislative intent to the contrary.
While Ashenbrenner is case authority that the date of injury ordinarily determines the level of benefits payable to the worker, it also stands for the proposition that the Legislature is presumed to be familiar with the rules, prior legislation, and prior court decisions pertaining both to the prospective and to the retrospective effect of legislation. Ashenbrenner, at 27. The Legislature is therefore presumed to have known that unless it included special language, the social security retirement offset would apply only to those individuals who were injured after the effective date of the statute. By including the last sentence of RCW 51.32.225(1) -- which we will refer to as the retirement offset exemption -- the Legislature has expressed the intention that the social security retirement offset will apply to persons not "receiving permanent total disability benefits prior to July 1, 1986." That language, quite obviously, would include persons such as Ms. Oakley, who were injured prior to July 1, 1986. Because the language of RCW 51.32.225 contemplates retrospective application, the Ashenbrenner presumption does not apply. The statute clearly applies to the claims of persons injured before its effective date. [7]
We must remain mindful that in construing RCW 51.32.225 our objective is to ascertain and give effect to the Legislature's intent. In re Eaton, 110 Wn.2d 892, 898 (1988). However, if the statute is not ambiguous, the meaning of the statute must be derived solely from the language of the statute itself. Id. Where the language of the statute is clear, its plain meaning must be given effect without resort to rules of statutory construction. Murphy v. Department of Licensing, 28 Wn.App. 620 (1981).
From our reading of the statute the meaning of the phrase "receiving permanent total disability benefits prior to July 1, 1986" is clear and unambiguous. To determine who is exempt from the social security retirement offset, we believe the Department need look no further than the list of persons on the permanent total disability pension rolls on June 30, 1986. On that date the Department knew, or could have readily determined, which workers were exempt from the new offset. Persons not actually receiving permanent total disability benefits on that date are subject to the retirement offset. Ms. Oakley was not receiving permanent total disability benefits prior to July 1, 1986, and the retirement offset therefore applies to her claim.
We believe our interpretation is consistent with the plain meaning of the word "receiving." The applicable dictionary definition of "receive" is "to come into possession of: ACQUIRE." Webster's Third New Interntional Dictionary 1894 (1986). Clearly, Ms. Oakley was not placed on the pension rolls prior to July 1, 1986 and has not "come [8] into possession of" permanent total disability benefits prior to that date.(1)
The Legislature has the authority to limit or terminate the right to benefits under the Industrial Insurance Act. All rights accruing to an injured worker are statutory rights and as such they are not constitutionally protected against change or abrogation. Those rights in effect at the time of a worker's injury may be affected by legislative action at any time. Mattson v. Department of Labor and Industries, 176 Wash. 345 (1934), aff'd, 293 U.S. 151 (1934). The Legislature has clearly and definitively set July 1, 1986 as the cutoff date for the social security retirement offset exemption. Those workers who were receiving permanent total disability benefits prior to that date are exempt from the social security retirement offset. Those [9] who were not are subject to that offset. This includes the claimant, Lois Oakley. Thus, any benefits which she receives subsequent to July 1, 1986 for temporary total disability or permanent total disability are subject to the social security retirement offset mandated by RCW 51.32.225.
We also do not believe, contrary to the allegations made by the claimant, that the social security retirement offset of RCW 51.32.225 is prohibited by federal law. The claimant contends that 42 U.S.C. § 424a requires an offset by the Social Security Administration when social security retirement benefits are being received along with state workers' compensation benefits. She then maintains that the "reverse offset" exception of 42 U.S.C. § 424a(d) only permits a state to take such an offset where a law or plan was in effect prior to February 18, 1981. Thus, since the state's social security retirement offset statute was not enacted until July 1, 1986, she feels it is prohibited.
The flaw in the claimant's argument is that there is no federal social security retirement offset. The federal social security offset created by 42 U.S.C. 424a only applies to individuals who are (1) under age 65, (2) entitled to social security disability benefits under 42 U.S.C. § 423, and (3) receiving periodic benefits on account of total or partial disability under a state's workers' compensation law. 42 U.S.C. § 424a(a). 42 U.S.C. § 424a does not authorize the Social Security Administration to take an offset for persons over the age of 65 who are not receiving social security disability benefits. The "reverse offset" exception of 42 U.S.C. § 424a(d) which permits states to take the offset, but limits the reverse offset to those states which [10] had enacted such an offset prior to February 18, 1981, applies only to social security disability offsets. It imposes no limitation on the authority of a state to offset any other social security benefit (i.e., retirement benefits) against workers' compensation benefits.
We find no authority for the Social Security Administration to take an offset of state workers' compensation benefits against social security retirement benefits (payable under 42 U.S.C. § 402) where the individual is not also receiving social security disability benefits (payable under 42 U.S.C. § 423). Absent such authority, we do not believe a state is prohibited from enacting legislation allowing the offset of social security retirement benefits against state workers' compensation benefits. Therefore, there is no merit to the claimant's contention that RCW 51.32.225 constitutes an "unconstitutional preemption of a federal agency's offset prerogative".
RCW 51.32.225 further provides that:
(2) Reductions for social security retirement benefits under this section shall comply with the procedures in RCW 51.32.220(1) through (6), except those that relate to computation, and with any other procedures established by the department to administer this section.
As the claimant correctly notes, RCW 51.32.220, which concerns the social security disability offset, provides in section (1) that it applies to "persons under the age of 65." Thus, claimant contends that RCW 51.32.225 should not apply to persons such as herself, who are over the age of 65. This argument, while ingenious, would render RCW 51.32.225 essentially meaningless. Few, if any, workers receiving social security retirement benefits would be subject to the social security retirement offset under this construction of the statute. In [11] order to give meaning to RCW 51.32.225, we must conclude that the age specification in RCW 51.32.220(1) does not relate to "procedures" as that term is used in RCW 51.32.225(2).
CALCULATION OF THE RETIREMENT OFFSET
While our Industrial Appeals Judge upheld the validity of RCW 51.32.225, he concluded that RCW 51.32.225(2) required the Department to enact rules, as required under the Administrative Procedures Act (RCW 34.04), governing the calculation of the social security retirement offset. Citing Mahoney v. Shinpoch, 107 Wn.2d 679 (1987), he concluded that the Department's failure to follow rule-making procedures prohibited the Department from taking the retirement offset. We disagree with this conclusion.
In Mahoney, our Supreme Court invalidated a rule promulgated by the Department of Social and Health Services (DSHS) reducing State Supplemental Payments (SSP) to the federal Supplemental Security Income (SSI) program, thus allowing the state to receive the benefit of a federal SSI cost of living adjustment. Such a reduction was authorized by Congress, but no express authorization by the state legislature was contained in the DSHS appropriation bill. DSHS had not followed the requirements of the Administrative Procedures Act (APA) in adopting its rule. The court held that since there had been no legislative indication that the reduction was mandatory, DSHS's implementation of the reduction was subject to the rule-making requirements of the APA, and that reduction could not occur until those requirements had been met. We believe RCW 51.32.225 does contain a legislative mandate for the reduction of workers' compensation benefits due to receipt of [12] social security retirement benefits, i.e., " ... the compensation shall be reduced...." The implementation of such reduction is therefore not dependent upon the Department's adoption of rules concerning the calculation of the offset.
In establishing the social security disability offset of RCW 51.32.220, our Legislature specifically incorporated a computation procedure. It provided that the social security disability offset would be calculated so as "not to exceed the amount of the reduction established pursuant to 42 U.S.C. § 424a." RCW 51.32.220(1). It is by virtue of this reference to federal law, and not by virtue of federal law itself, that we have frequently looked to federal law and procedures established by the Social Security Administration in order to calculate the social security disability offset. See, e.g., In re Evelyn E. Berlin, BIIA Dec., 86 3615 (1987). 42 U.S.C. § 424a(d), which creates the "reverse" disability offset, does not require the states to follow any particular procedure in calculating a state offset, although most states implementing the disability reverse offset have provided for an offset which is usually equal to or less than that which could have otherwise been taken by the Social Security Administration itself. See generally, 4 A. Larson, Workmen's Compensation Law, § 97.35.
The social security retirement offset, on the other hand, does not specifically incorporate, by analogy or otherwise, any federal limitations on the amount of the offset. An earlier draft of the legislative bill creating the social security retirement offset, House Bill No. 1875, had provided language which seemed to suggest that the [13] offset would be equal to that applicable to persons receiving social security disability benefits. House Bill 1875 would have amended RCW 51.32.220 by addition of the following language:
. . . (2) For persons receiving compensation for temporary or permanent total disability under this title, the compensation shall be reduced under procedures established by the department to allow an offset for an amount equal to benefits payable under federal social security retirement, pursuant to 42 U.S .C. Sec. 424a.
For reasons which are not clear from the legislative history, this language was deleted from Substitute House Bill (SHB) 1875, and a new section pertaining to social security retirement benefits was created, which was eventually enacted into law. The new section became RCW 51.32.225. Perhaps this change was due to the recognition that 42 U.S.C. § 424a only applies to social security disability offsets. In any event, far from incorporating any reference to a federal method for calculating an offset, RCW 51.32.225(2) specifically provides that the computation methods in RCW 51.32.220(1) through (6) shall not apply.
We believe that by providing that "compensation shall be reduced by the department to allow an offset for social security retirement benefits" and by excluding such reduction from the computation procedures in RCW 51.32.220, the Legislature intended to authorize a dollar-for-dollar reduction of temporary or permanent total disability benefits by the amount of social security retirement benefits. This conclusion is further supported by references in both the House Bill Analysis and House Bill Report concerning SHB 1875 that under the new law workers' compensation benefits "will be reduced by the amount of social security retirement benefits received by the worker." The [14] Department's fiscal note concerning SHB 1875 proceeded with an assumption that the "affects (sic) of this offset would be similar to current offset provisions against federal social security disability benefits" (Fiscal Note, SHB 1875, Request No. 55-86, p. 2). However, the language of the statute specifically belies a construction that the retirement offset would be the same as the disability offset.
The various statutory changes contained in SHB 1875 indicate that the Legislature fully intended to treat retired workers differently from other workers and to reduce or eliminate workers' compensation benefits because of the fact that they had removed themselves from the work force, due to a voluntary decision to retire. The imposition of an offset because of retirement benefits, greater than that allowed by 42 U.S.C. § 424a against social security disability benefits, is consistent with that legislative purpose.
Since we conclude that RCW 51.32.225 provides for the taking of a social security offset in the full amount of social security retirement benefits being received by the worker, we must comment on the question of the effect, if any, of the Department's policy not to reduce temporary or permanent total disability benefits by the full amount of social security retirement benefits being received by the worker in all cases. We believe that if the Department chooses to offset less than the full amount of social security retirement benefits being received by the worker, then it is required to establish procedures for doing so. Such procedures must comply with the administrative rule-making requirements of RCW 34.04. We believe it is questionable whether the Department has the authority to offset less than the full amount of the social security retirement benefits being received by a claimant. [15] However, since only the claimant has filed an appeal from the Department's decision to reduce her time-loss compensation benefits by $226.30 per month on account of her receipt of social security retirement benefits, we do not have the occasion or the authority to decide in this appeal that the reduction should have been greater and thus the claimant entitled to less time-loss compensation than that which the Department has awarded her. See Brakus v. Department of Labor and Industries, 48 Wn.2d 218 (1956). Furthermore, in this particular claim the Department did in fact offset social security retirement benefits, exclusive of COLA's, dollar-for-dollar against claimant's current time-loss compensation benefits. Arguably such an offset comports with the terms of RCW 51.32.225. However, since the issue is not appropriately before us, we specifically do not decide here whether or not the COLA's authorized by the Social Security Act should be considered "social security retirement benefits", as that term is used in RCW 51.32.225(1).
The final issue raised by the claimant was whether her highest year's earnings for the purpose of determining her "average current earnings" should include as "wages" her social security retirement benefits received during that year. This issue assumes that definitions contained in the Social Security Act and regulations promulgated pursuant thereto have a bearing on the manner in which the retirement offset is calculated. However, whether social security retirement benefits constitute "wages" for the purposes of computing "average current earnings" to calculate the social security disability offset under 42 U.S.C. 424a has no legal significance to the [16] determination of the amount of the retirement offset created by our Legislature by enactment of RCW 51.32.225.
After consideration of the Proposed Decision and Order, the Department's Petition for Review filed thereto, the claimant's Reply Memorandum to Petition for Review, and a careful review of the entire record before us, we are persuaded that the letter decision of the Department dated November 12, 1987 is correct and should be affirmed.
Proposed Finding of Fact No. 1 and Conclusion of Law No. 1 are hereby adopted as the Board's final finding and conclusion and are incorporated herein by this reference. In addition, the Board makes the following additional Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
2. As of July 1, 1986, the claimant was entitled to time-loss compensation in the amount of $666.31 per month without consideration of any offset for receipt of other benefits.
3. As of July 1, 1986 the claimant was not receiving permanent total disability benefits as defined by the Industrial Insurance Act.
4. As of July 1, 1986 the claimant was receiving social security retirement benefits in the amount of $399.51 per month. Excluding cost of living adjustments since her initial entitlement to social security retirement benefits in 1978, but including additional wage credits earned subsequent to April 1978, the claimant's social security retirement rate as of July 1, 1986 was $226.30 per month.
5. The Department of Labor and Industries has not adopted any rules or regulations to administer RCW 51.32.225, including, but not limited to, rules governing the method of calculation of the social security retirement offset.
CONCLUSIONS OF LAW
2. RCW 51.32.225(1) concerning the offset of time-loss compensation by social security retirement benefits applies to injured workers such as the claimant who [17] were receiving time-loss compensation effective July 1, 1986 and who were receiving social security retirement benefits as of July 1, 1986.
3. RCW 51.32.225(1) is mandatory and requires the Department to reduce temporary or permanent total disability compensation to allow an offset for social security retirement benefits, and provides for the taking of the offset equal to the amount of such social security retirement benefits.
4. The letter decision of the Department of Labor and Industries dated November 12, 1987 is correct and should be affirmed.
It is so ORDERED.
Dated this 27th day of April, 1989.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMON Chairperson
/s/
PHILLIP T. BORK Member
DISSENT
One of the majority's contentions is that the offset of Ms. Oakley's social security retirement benefits contained in RCW 51.32.225 should apply even if it could be found that she was entitled to a pension made effective a date prior to the effective date of the statute, but not ordered until a date subsequent to the effective date of the statute. While the wording in the statute may at first glance appear clear, the Department policies to which the statute relates must be considered.
It is not unusual for the Department of Labor and Industries to make a decision which necessitates pre-dating the effective date of [18] pension benefits to a date sometime prior to the order awarding the pension. In a case involving a self-insured employer, for example, the employer handles the bulk of the administration regarding the claim. As a result, the self-insured employer is provided the specific information regarding the claim and the Department of Labor and Industries does not immediately have the full documentation it needs in order to make a just and equitable decision as to the worker's entitlement to permanent and total disability benefits.
Whether under a self-insured claim or a state fund claim, it is impossible for the Department of Labor and Industries to make an instantaneous decision regarding whether an individual is totally and permanently disabled as of a date certain. There must be, as a matter of course, time spent investigating the claim. While a few month's delay is to be expected when dealing with an administrative agency, procedures have been established in order to place an individual on the pension rolls retroactively so as not to penalize the worker for the Department of Labor and Industries' own delay. In any event, whether under self-insured or state fund claims, there are cases where the worker might be able to prove through medical or vocational testimony that he or she was indeed permanently and totally disabled on or before June 30, 1986.
This retroactive procedure necessary in pension administration does not detrimentally affect these workers unless the literal interpretation of RCW 51.32.225 is applied. The majority of this Board would have the worker penalized for the delay of the Department of Labor and Industries in adjudicating his or her entitlement to pension benefits. Applying this literal reading of the statute would allow the [19] self-insured employer or the Department to dictate whether or not the social security offset provisions of this statute should apply to a particular worker. Certainly it is not the intent of the industrial insurance laws of the State of Washington to treat those individuals differently who were placed on the pension rolls after July 1, 1986 only because of delay in administering their claims.
The literal reading of the statute also requires different treatment of those individuals who are forced to litigate their entitlement to pension benefits from those who are originally awarded a pension without the need to litigate. In this scenario, if a worker is forced to litigate the entitlement to a pension and the litigation in any way extends beyond the July 1, 1986 effective date of RCW 51.32.225, the offset will be applied to the pension benefits even if it is found he or she should have been receiving a pension prior to July 1, 1986. On the other hand, the worker originally awarded a pension prior to July 1, 1986 and not forced to litigate, will not have the offset applied. Once again, certainly it is not the intent of the industrial insurance laws of the State of Washington to compensate workers differently based on whether or not they were required to exercise their appeal rights, as contained in RCW 51.52.
The majority argues that there is no ambiguity in the language of the statute. However, the Department's own interpretation of the statute belies the lack of any ambiguity. The Department's own policy in administering the statute provides that if a claimant was entitled to a pension before July 1, 1986 then the offset will not be applied to reduce his or her monthly compensation. It's hard to believe that the statute could not be considered ambiguous when the agency which must [20] administer the statute has an interpretation that differs from the majority of this Board. Finally, when a statute is ambiguous, the construction placed upon it by the agency charged with its administration is entitled to considerable weight. Bradley v. Department of Labor and Industries, 52 Wn.2d 780 (1958). At the very least RCW 51.32.225 must be interpreted in light of the administrative procedures used to make pension determinations.
I believe the Act must be liberally construed in order to achieve its purpose of providing compensation, with doubts resolved in favor of the worker. Dennis v. Department of Labor and Industries, 109 Wn.2d 467, 470 (1987). Justice and fairness require that all workers be treated equally and not penalized due to delay in decision making by the Department of Labor and Industries or self-insured employers. Therefore, in this case, where Ms. Oakley alleges her condition was fixed and she was permanently and totally disabled prior to June 30, 1986 she should be allowed to litigate those issues. If found permanently totally disabled prior to July 1, 1986, her pension benefits should not be offset by social security retirement benefits.
Finally, Ms. Oakley argues that this legislation is unconstitutional because it reduces benefits retrospectively and without regard to the long established principle that the date of injury controls the level of a worker's benefits. See Ashenbrenner v. Department of Labor and Industries, 62 Wn.2d 22 (1963). Ms. Oakley also argues that RCW 51.32.225 does not apply to her because she has a vested right in the amount of time-loss compensation she was receiving. Though it appears to me that those arguments are also meritorious, the Board does not have the authority to declare an act of the Legislature [21] unconstitutional. It will be incumbent upon the courts to rectify the unconstitutional compromise of the rights of workers inflicted by RCW 51.32.225.
/s/
FRANK E. FENNERTY, JR. Member
(1) 1 There is nothing in the legislative history of RCW 51.32.225 which suggests that the Legislature intended any meaning other than that which we have discerned from the plain language of the statute itself. The claimant accurately notes that after Substitute House Bill 1875 was read the second time in the House on February 12, 1986 Representative McMullen asked the following question: "Representative Wang: I'm concerned that we are changing the rules in midstream on certain people. Section 5 is dealing with retired people. Is it the intent of this legislation that it would only apply to the people who apply to reopen their claims after the effective date of this act and not before?" Mr. Wang responded: "Yes, Representative McMullen, that is correct." Our review of the bill, the House Bill Report and House Bill Analysis leads us to conclude that in his question Mr. McMullen intended to reference the new sub-section 17 of Section 1, rather than Section 5, of SHB 1875. Under sub-section 17 of Section 1 if the Supervisor of Industrial Insurance determines that the worker is voluntarily retired and no longer attached to the work force, benefits should not be paid under Section 1. It applies "in the case of new or reopened claims." In contrast, the House Bill Report and the House Bill Analysis specifically suggest that the social security retirement offset "will not apply to workers who are receiving pensions prior to the effective date of the act." There is nothing in the House Bill Report, the House Bill Analysis, or in the language of the bill itself which would indicate any intent that the social security retirement offset would only apply to "the people who apply to reopen their claims after the effective date of this act."