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Stuckey v. Department of Labor and Industries

filed: May 16, 1996.

MARSHALL L. STUCKEY, PETITIONER,
v.
DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON, RESPONDENT. WILLADEAN ROBERTS, PETITIONER, V. DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON, RESPONDENT.



Appeal from Superior Court, Grant (91-2-00642-0) County; Honorable Kenneth Jorgensen, Judge. Judgment Date: 10-14-93.

Johnson, J., Durham, C.j., Dolliver, Smith, Guy, Madsen, Alexander, Talmadge, Sanders, J.j., concurring.

Author: Johnson

En Banc

JOHNSON, J. -- Two issues of statutory construction involving RCW 51, the Industrial Insurance Act (Act), are presented in this case. The first issue requires us to decide the method by which the Department of Labor and Industries (Department) can recover certain workers' compensation benefits. Specifically, we must determine which section of RCW 51.32 controls (.080(4) or .240(3)) where a claim is ordered closed with a finding of permanent partial disability and an award of a lump sum payment, and then, on appeal, a new order changes the earlier finding to permanent total disability and orders placement on the pension rolls, effective as of the date of the first order. The second issue we are asked to decide is whether the Department may include social security benefits paid to an injured worker's spouse when calculating the social security offset to the worker's state disability pension payments, required by RCW 51.32.220.

We hold RCW 51.32.080(4) applies to all situations where permanent partial disability is followed by permanent total disability and any recoupment available to the Department must be made under that statute. We also hold the Department correctly included the injured worker's spouse's social security benefits in calculating the offset to the injured worker's state disability pension payments under RCW 51.32.220. We reverse in part, affirm

in part, and remand for determination of the proper recoupment of the permanent partial disability awards.

FACTS

Petitioners, Marshall Stuckey and Willadean Roberts, were both injured in the course of their employment and received benefits under the Act. In each of their cases, the Board of Industrial Insurance Appeals (Board) reversed an order by the Department. The Department sought review of those decisions in the superior court. These two separate appeals were consolidated by the superior court. Although they present a common question for review in this court, we discuss their factual and procedural histories separately.

Ms. Roberts

Ms. Roberts was injured in 1978. She received time-loss compensation for temporary disability through May 22, 1989. Finding her condition had become fixed and stable, the Department closed her claim on August 12, 1990 and awarded a lump sum payment of $6,900 for permanent partial disability. Ms. Roberts received no compensation for the 15 months after time-loss compensation was terminated and before the permanent partial disability award was issued.

She appealed to the Board, arguing she had a permanent total disability rather than a permanent partial disability. The Board agreed and ordered Ms. Roberts placed on the permanent total disability pension rolls as of August 13, 1990. The Board also ordered retroactive time-loss compensation for the previously uncompensated 15-month period.

Following the Board's order, the Department awarded Ms. Roberts $9,251.10 for retroactive time-loss compensation, minus $6,966.82 for the permanent partial disability award. The Department relied on RCW 51.32.240(3) in

making this deduction. Ms. Roberts appealed the deduction to the Board, which reversed, ordering the Department to deduct the amount of the permanent partial disability award from her pension reserve as provided in RCW 51.32.080(4)*fn1

Mr. Stuckey

Mr. Stuckey was injured in 1984. The Department paid him time-loss compensation through July 15, 1987. Mr. Stuckey was without compensation for six months before the Department awarded a lump sum payment of $3,600 for permanent partial disability on January 21, 1988. He appealed the partial disability determination to the Board, which reversed, finding Mr. Stuckey had a permanent total disability. The Board ordered Mr. Stuckey placed on the pension rolls as of January 21, 1988 and ordered the Department to pay him retroactive time-loss compensation for the previously uncompensated six-month period.

The Department paid Mr. Stuckey $4,813.33, the amount of retroactive time-loss compensation to which he was entitled, less 3,600 for the permanent partial disability award, again relying on RCW 51.32.240(3). Mr. Stuckey appealed and the Board reversed, ordering the Department to deduct the amount of the partial disability award from his pension reserve "to the extent, if any, that it exceeds the amount of permanent total disability compensation had it been paid in the first instance" (i.e., January 21, 1988), as provided in RCW 51.32.080(4). In re Stuckey, Bd. of Indus. Ins. Appeals Dec. 89 5977, 90 2638 at 6 (1991); Clerk's Papers (Stuckey) at 6.

On November 15, 1989, the Department ordered Mr. Stuckey's permanent total disability compensation offset to account for his receipt of social security disability

benefits. Such offset is required by RCW 51.32.220. In calculating the offset, the Department included benefits payable to Mr. Stuckey and benefits payable to his wife, based on his primary insurance amount. The Department found Mr. Stuckey's new permanent total disability compensation rate to be $0.00 based on Mr. and Mrs. Stuckey's combined monthly social security benefits of $988 and the monthly state permanent total disability compensation rate of $827.05.

Mr. Stuckey appealed the Department's decision on the offset to the Board, arguing RCW 51.32.220 does not provide for offsetting disability payments based on a spouse's social security benefits. This appeal was consolidated with Mr. Stuckey's first appeal on the recoupment issue. The Board affirmed the Department's inclusion of Mrs. Stuckey's social security benefits in calculating the offset.

The Department appealed the Board's decision on the recoupment issue in both Ms. Roberts' and Mr. Stuckey's cases to the superior court, where the two cases were consolidated. Mr. Stuckey also appealed the Board's decision affirming the Department's inclusion of his wife's social security benefits in calculating the offset. The Petitioners and the Department filed cross motions for summary judgment on the recoupment issue; Mr. Stuckey filed a motion for summary judgment on the offset issue.

The superior court granted the Department's summary judgment motion on the recoupment issue (denying Petitioners' motion), as well as granting Mr. Stuckey's summary judgment motion on the offset issue. First, the court concluded when a permanent partial disability award is reversed on appeal and the worker is determined to have a permanent total disability RCW 51.32.080(4) is inapplicable, and the amount of the permanent partial disability award is to be recouped from future payments, including an offset against any ...


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