| IN RE: PARK E. JOHNSON | ) | DOCKET NO. 91 3189 |
| ) | ||
| CLAIM NO. T-176693 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, Park E. Johnson, by
- Casey & Casey, P.S., per
- Carol L. Casey and Gerald L. Casey, Attorneys
- Self-Insured Employer, Pope & Talbot, Inc., by
- Schwabe, Williamson, Ferguson & Burdell, per
- Elizabeth K. Reeve, Attorney
- The Department of Labor and Industries, by
- Office of the Attorney General, per
- Steve LaVergne, Paralegal, and
- Michael Davis-Hall, Assistant
This is an appeal filed by the claimant, Park E. Johnson, on June 11, 1991 from an order of the Department of Labor and Industries dated April 23, 1991 that affirmed an order dated March 13, 1991 that corrected a prior order that reduced the time loss compensation rate. The order of March 13, 1991 established a new time loss compensation rate of $834.00 based on receipt of social security benefits totalling $1,334.00 per month and claimant's highest year's earnings of $32,520.00; ordered the new rate effective December 1, 1990; ordered the claimant be paid this new rate beginning April 1, 1991; and, found there was an overpayment for the period from December 1, 1990 through March 31, 1991 in the amount of $1698.84; and, notified the claimant that the overpayment would be deducted from future awards at the rate of $208.50 per month which is 25% of the new rate of time loss compensation. Affirmed. [2]
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 claimant to a Proposed Decision and Order issued on November 30, 1992 in which the order of the Department dated April 23, 1991 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 numerous issues raised by the claimant concerning the calculation of the social security offset and recoupment of overpayment, are adequately set forth in the Proposed Decision and Order. The claimant's primary contention in his Petition for Review is that the calculation of the reverse offset for social security disability benefits pursuant to RCW 51.32.220 should not take into account dependent benefits, and that the Board's decision in Earl F. Lique, BIIA Dec., 88 3334 (1990) is supportive of this proposition. We disagree. In Lique, the Board held that in calculating the social security retirement offset pursuant to RCW 51.32.225 where the worker had a dependent child, the Department should consider both the dependent child's time loss compensation and the child's federal benefits, but that the amounts are to be considered and calculated separately from the state and federal benefits received by the worker. Thus, Lique clearly articulates this Board's position that the social security retirement offset calculation consider both state time loss compensation and federal retirement benefits payable on behalf of minor children. [3]
Moreover, Lique involved calculation of the social security retirement offset, not the social security disability offset which is involved in this appeal. As we discussed in In re Lois Oakley, BIIA Dec., 87 3830 (1989), our legislature, in establishing the social security disability offset by virtue of RCW 51.32.220, specifically provided that the offset not exceed the amount of the reduction established pursuant to 42 U.S.C. § 424a. Because of this reference to federal law in RCW 51.32.220, the Board has consistently looked to federal law and procedures established by the Social Security Administration in order to calculate the disability offset. See, e.g., In re LaVerne D. McKenna, BIIA Dec., 49,873 (1978), and In re Evelyn E. Berlin, BIIA Dec., 86 3615 (1987).
The social security retirement offset statute, on the other hand, differs from the disability offset in that it does not specifically incorporate any federal limitations on the amount of the offset, but instead specifically provides that the computation methods in RCW 51.32.220(1) through (6) shall not apply. In Oakley, we held that because of the language contained in RCW 51.32.225, the Legislature authorized a dollar-for-dollar reduction of state total disability benefits by the amount of social security retirement benefits. We recognized that the statutory language belies a construction that the retirement offset would be calculated in the same fashion as the disability offset authorized by RCW 51.32.220.
Because the present case involves calculation of social security disability offset, we must look to the federal laws and regulations, specifically 42 U.S.C. § 424a, the section of the federal code that [4] establishes the federal government's right to offset social security payments by state disability payments. In calculating what the federal government offset would be, 42 U.S.C. §§ 423 and 402 require offset of the claimant's total benefits against the state's total workers' compensation payments. Section 402 provides for benefits payable to relatives of persons receiving social security benefits of all kinds, such as wife's, husband's, child's, widower's, and parent's.
Moreover, the federal offset statute requires that the Social Security Administration offset the total of all social security benefits paid to a claimant and his or her children by any state disability payments. There is no provision for a "separate" calculation for children's benefits.
Federal regulations are even more explicit that all social security disability benefits payable must be offset by state disability payments. The regulations reference not only the disability insurance benefit to which an individual is entitled, but also any monthly benefit payable to others under 42 U.S.C. § 402 on the basis of the same earnings record. 20 C.F.R. § 404.408(a).
In the present case, we affirm our holding in McKenna, id. The claimant's "total family entitlement" is the correct amount to consider in the calculation of the offset to be taken against his time loss compensation. We conclude that since the formula for calculating the federal offset does not provide for separate calculation for children, but requires offsetting the total of all social security benefits paid to the claimant and his children by any state disability benefits, the Department must also follow the federal formula. Therefore, the method for calculating social security retirement offset enumerated in Lique is [5] inapplicable in this present appeal involving social security disability offset.
The claimant further contends that the Department is precluded from demanding repayment of benefit overpayments made to the claimant prior to the Department's notifying the claimant of the social security offset. RCW 51.32.220(2) clearly authorizes the Department to recover overpayments made up to six months before the date on which a claimant is notified that the overpayment has occurred. In the instant case, the order sought recoupment of overpayments made from December 1, 1990 through March 31, 1991 which is a period covering less than four months before the notice was sent on March 13, 1991. While the reductions for the overpayments cannot be made unless the worker receives notice of the reduction prior to the month in which the reduction is made, here the reduction was not taken until the April benefit payment. The Department's recoupment of the overpayment is within the clear provisions of RCW 51.32.220.
Moreover, this record does not establish when the Department was notified by the Social Security Administration that Mr. Johnson was receiving social security disability benefits. We surmise from a review of the jurisdictional facts that this notice was probably received sometime in November 1990, but there is no testimony or evidence of when the Department learned about the social security benefits. The claimant failed to establish that the Department erred in establishing the effective date of the offset as December 1, 1990.
We further note that the claimant has not established that the Department made any error in its application of COLAs in its calculation [6] of the reverse social security offset.
After review of the entire record, the claimant's Petition for Review, the Department's Response to the Claimant's Petition for Review, and the applicable statutory law and Board decisions, we conclude that the Proposed Decision and Order is supported by the preponderance of the evidence and is correct as a matter of law. The order reducing the claimant's monthly time loss compensation rate because of his receipt of social security disability payments and finding an overpayment of $1,698.84 is affirmed.
FINDINGS OF FACT
1. On November 28, 1988, the claimant, Park E. Johnson, filed an application for benefits with the Department of Labor and Industries alleging an industrial injury to have occurred on November 3, 1988 while in the course of employment with Pope and Talbot, Inc. The claim was allowed and time loss benefits paid.
On November 30, 1990, the self-insured employer forwarded information from the Social Security Administration that social security benefits were being provided the claimant effective July 1, 1989. On February 20, 1991, the self-insured employer requested the Department to review the matter of social security offset. On March 4, 1991, the Department entered an order informing the claimant that his time loss compensation was being reduced to $1,202.00 effective December 1, 1990 because of his receipt of social security benefits, that the new time loss rate would begin on April 1, 1991, that the claimant had been overpaid for the period from December 1, 1990 through March 31, 1991 in the amount of $214.17, and that the overpayment would be deducted from future awards at the rate of $35.70 per month. On March 11, 1991, the claimant protested, and on March 13, 1991, the Department entered a corrected order informing the claimant that the new time loss compensation rate because of receipt of social security benefits would be $834.00 effective December 1, 1990, the new rate would begin on April 1, 1991, that the [7] claimant had been overpaid for the period from December 1, 1990 through March 31, 1991 in the amount of $1,698.84, and that the overpayment would be deducted from future awards at the rate of $208.50 per month.
On April 12, 1991, the claimant protested the March 13, 1991 order, and on April 23, 1991, the Department issued an order affirming the order of March 13, 1991. On June 11, 1991, the claimant filed an appeal with the Board from the order dated April 23, 1991, and on July 31, 1991, the Board granted the appeal, and assigned it Docket No. 91 3189.
2. Park E. Johnson sustained an industrial injury on November 3, 1988 while in the course of employment with Pope and Talbot, Inc. He thereafter received time loss compensation as an injured worker pursuant to the Washington State Industrial Insurance Act. As of November 1988 Mr. Johnson was married and had two dependent children under the age of 18. His original rate of time loss compensation was $1,164.59.
3. Mr. Johnson's highest year's earnings used in calculating the social security offset were $32,526.75 for 1986. The maximum permissible amount of combined social security disability and state time loss compensation is 80% of the average current earnings, or $2,168.00 per month.
4. Mr. Johnson was entitled to social security disability benefits effective July 1989 in the amount of $890.00 and for his dependent children in the amount of $444.00 for a total social security disability benefit of $1,334.00.
5. As of December 1, 1990, the amount of time loss compensation payable to Mr. Johnson was $834.00 ($2,168.00 minus $1,334.00). Mr. Johnson was overpaid time loss compensation for the period from December 1, 1990 through March 31, 1991 in the amount of $1,698.84 which was deductible from future benefits at the rate of $209.50, which is 25% of the time loss benefit rate of $834.00. [8]
6. By order dated March 13, 1991, Mr. Johnson received notice from the Department of the overpayment of $1,698.84 and notice that the overpayment would be deducted from future benefits at the rate of $208.50 per month.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction of the parties and the subject matter of this appeal.
- Mr. Johnson's total family entitlement in social security benefits is the correct amount to be considered in the calculation of the proper offset or reduction to be taken against his time loss compensation benefits. Calculation of offset pursuant to RCW 51.32.220 requires offsetting Mr. Johnson's and his minor children's combined social security disability benefit against any state time loss compensation or pension benefits.
- The Department has authority pursuant to RCW 51.32.220(2) to recoup overpayments made up to six months before the date on which a claimant is notified that the overpayment has occurred. The order of March 13, 1991 was notice to the claimant that the Department would recoup the overpayments made from December 1, 1990 through March 31, 1991 from future benefits. The Department's recoupment of the overpayment was correct and met the provisions of RCW 51.32.220(2).
- The order of the Department of Labor and Industries dated March 13, 1991, correcting the order of March 4, 1991 and determining that the correct monthly time-loss rate is $834.00 effective December 1, 1990, that the claimant would be paid the new rate beginning April 1, 1991, that the claimant was overpaid for the period from December 1, 1990 through March 31, 1991 in the amount of $1,698.84 which will be deducted from future awards at the rate of $208.50 per month (25% of the new time loss rate), is correct in all respects and is hereby affirmed.
It is so ORDERED. [9]
Dated this 10th day of May, 1993.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLER Chairperson
/s/
PHILLIP T. BORK Member