Patrick J. Birgen, Appellant ,
The Department of Labor and Industries, Respondent
Oral Argument February 18, 2015
As amended by order of the Court of Appeals May 19, 2015.
Appeal from Pierce County Superior Court. Docket No: 13-2-06961-5. Judge signing: Honorable Kathryn J Nelson. Judgment or order under review. Date filed: 11/15/2013.
Dorian D.N. Whitford (of Vail / Cross & Associates ), for appellant.
Robert W. Ferguson, Attorney General, and John S. Barnes and Steve Vinyard, Assistants, for respondent.
Authored by Bradley A. Maxa. Concurring: Linda CJ Lee, Rich Melnick.
[186 Wn.App. 854] Bradley A. Maxa,
[¶ 1] Patrick Birgen appeals the superior court's order affirming a Board of Industrial Insurance Appeals (Board) decision tat the Department of Labor and Industries (DLI) properly calculated the amount by which his workers' compensation disability benefits must be offset by his federal Social Security benefits. Under RCW 51.32.220, a claimant's workers' compensation disability benefits must be reduced by the amount that person receives in Social Security benefits or by an amount calculated under 42 U.S.C. § 424a(a), whichever is less. The amount of the offset under 42 U.S.C. § 424a(a) generally is the amount by which a claimant's combined monthly disability and Social Security benefits exceed 80 percent of the claimant's " average current earnings," which usually is one-twelfth of the claimant's highest annual earnings during the year of disability or the preceding five years.
[¶2] DLI calculated Birgen's offset under 42 U.S.C. § 424a(a) based on his 1983 earnings. Birgen argues that DLI was required to adjust his 1983 earnings to present value - i.e., 2012 dollars - when calculating his offset. He claims that this present value adjustment would have lowered the amount of the offset. Both the Board and the superior court rejected this argument. We agree with the Board and the superior court, and hold that RCW 51.32.220 and 42 U.S.C. § 424a(a)(8) unambiguously require that the offset for Social Security benefits be calculated using Birgen's unadjusted 1983 income. Accordingly, we affirm the superior court.
[¶3] Birgen sustained an industrial injury in 1984 and filed a workers' compensation claim. DLI allowed his claim, and ultimately determined that he was permanently and totally disabled as of July 1991. As a result, Birgen was entitled to receive monthly workers' compensation benefits for the remainder of his life. By 2012, those disability payments were $2,911.42 per month.
[186 Wn.App. 855] [¶ 4] In 2012, DLI learned Birgen also was receiving Social Security benefits of $830 per month. It issued an order offsetting Birgen's workers' compensation benefits by that amount, resulting in a new monthly disability payment of $2,081.42. The order states that the offset was based on Birgen's Social Security payments of $830 and his highest year earnings of $30,965 for 1983. Birgen requested that DLI reconsider its order. After reconsidering the order, DLI determined it was correct and affirmed the order.
[¶5] Birgen filed an appeal with the Board, and the case was assigned to an industrial appeals judge (IAJ). Birgen did not dispute on appeal that his Social Security offset should be based on his 1983 earnings. Instead, he argued that DLI should have adjusted the amount of his 1983 earnings to their present value in calculating the offset. Birgen filed a motion for summary judgment on this issue. The IAJ ruled that DLI was not required to adjust Birgen's 1983 earnings to present value, and that DLI was entitled to summary judgment even though it did not file a cross motion.
[¶6] Birgen appealed to the Board. The Board affirmed DLI's order, ruling that DLI correctly calculated Birgen's Social Security offset. Birgen appealed to the superior court, which ...