Birgen v. Dep't of Labor & Indus. of State

• Decision Date: 07 April 2015
• Docket Number: No. 45692–3–II.,45692–3–II.
• Citation: 347 P.3d 503,186 Wash.App. 851
• Court: Washington Court of Appeals
• Parties: Patrick J. BIRGEN, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES OF the STATE of Washington, Respondent.

186 Wash.App. 851

347 P.3d 503

Patrick J. BIRGEN, Appellant

v.DEPARTMENT OF LABOR AND INDUSTRIES OF the STATE of Washington, Respondent.

No. 45692–3–II.

Court of Appeals of Washington, Division 2.

April 7, 2015.

As Amended on Reconsideration in Part May 19, 2015.

Dorian Druce Nilsson Whitford, Vail/Cross & Associates, Tacoma, WA, for Appellant.

John S. Barnes, Office of the Attorney General, Steve Vinyard, Attorney General's Office, Olympia, WA, for Respondent.

Opinion

MAXA, P.J.

¶ 1 Patrick Birgen appeals the superior court's order affirming a Board of Industrial Insurance Appeals (Board) decision that 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.

FACTS

¶ 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.

¶ 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 1983.¹ 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 DLLs order, ruling that DLI correctly calculated Birgen's social security offset. Birgen appealed to the superior court, which affirmed the Board's order and decision.

¶ 7 Birgen appeals.

ANALYSIS

A. Standard of Review

¶ 8 The ordinary civil standard of review governs appeals of proceedings under the Industrial Insurance Act, Title 51 RCW, RCW 51.52.140. As a result, we review the superior court's decision rather than the Board's decision. Rogers v. Dep't of Labor & Indus. , 151 Wash.App. 174, 180, 210 P.3d 355 (2009) (footnote omitted). Our review is the same as in any other civil case: we determine whether substantial evidence supports the superior court's findings and whether those findings support the superior court's conclusions of law. Id. And we review the superior court's legal conclusions de novo. Id.

B. Calculating the Social Security Offset

¶ 9 Birgen challenges DLL's calculation of his social security offset. He argues that under 42 U.S.C. § 424a(a) the term “average current earnings” is ambiguous because the term fails to state whether the DLI must adjust a claimant's wages for inflation. We hold that 42 U.S.C. § 424a(a) is not ambiguous and affirm the superior court.²

1. Legal Principles

¶ 10 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.³ 42 U.S.C. § 424a(a)(2)-(6) provides that the amount of the offset is the amount by which a person's combined monthly disability and social security benefits exceed 80 percent of that person's “average current earnings”.⁴

42 U.S.C. § 424a(a)(8) defines “average current earnings” as the largest of three different amounts, which in most situations is one-twelfth of the person's highest annual earnings in the year of disability or in the preceding five years.

¶ 11 Using Birgen's 1983 earnings without adjustment for present value results in an amount calculated under 42 U.S.C. § 424a(a) that is greater than the $830 he received in social security benefits. Birgen claims that if his 1983 earnings were increased to present value, the amount of the offset under 42 U.S.C. § 424a(a) would be lower than $830.

2. Adjustment of Average Current Earnings to Present Value

¶ 12 Birgen argues that 42 U.S.C. § 424a(a)(8)'s definition of “average current earnings” is ambiguous with respect to whether a claimant's highest annual earnings should be adjusted to present value. We disagree.

a. Statutory Interpretation

¶ 13 Statutory interpretation is a question of law that we review de novo. Jametsky v. Olsen, 179 Wash.2d 756, 761, 317 P.3d 1003 (2014). The goal of statutory interpretation is to determine and give effect to the legislature's intent. Id. at 762, 317 P.3d 1003. To determine legislative intent, we first look to the plain language of the statute. Id. We consider the meaning of the provision in question, the context of the statute in which the provision is found, and related statutes. Lowy v. PeaceHealth, 174 Wash.2d 769, 779, 280 P.3d 1078 (2012). If a statute is unambiguous, we must apply the statute's plain meaning as an expression of legislative intent without considering other sources of such intent. Jametsky, 179 Wash.2d at 762, 317 P.3d 1003.

¶ 14 If the plain language of the statute is susceptible to more than one reasonable interpretation, the statute is ambiguous. Id. But a statute is not ambiguous merely because different interpretations are conceivable. Agrilink Foods, Inc. v. Dep't of Revenue, 153 Wash.2d 392, 396, 103 P.3d 1226 (2005). We resolve ambiguity by considering other indications of legislative intent, including principles of statutory construction, legislative history, and relevant case law. Jametsky, 179 Wash.2d at 762, 317 P.3d 1003.

¶ 15 We do not rewrite unambiguous statutory language under the guise of interpretation. Cerrillo v. Esparza, 158 Wash.2d 194, 201, 142 P.3d 155 (2006). Similarly, we “must not add words where the legislature has chosen not to include them.” Rest. Dev., Inc. v. Cananwill, Inc., 150 Wash.2d 674, 682, 80 P.3d 598 (2003). Instead, we construe statutes assuming that the legislature meant exactly what it said. In re Marriage of Herridge, 169 Wash.App. 290, 297, 279 P.3d 956 (2012).

b. Plain Language of Statutes

¶ 16 Our analysis must start with the plain language of the relevant statute. Jametsky, 179 Wash.2d at 762, 317 P.3d 1003. The relevant statute here is RCW 51.32.220, which allows DLI to take an offset if the claimant is receiving social security benefits. However, RCW 51.32.220 provides that the offset may depend on a calculation based on 42 U.S.C. § 424a(a). Therefore, we must analyze the language of both statutes.

¶ 17 The question here is whether a claimant's highest annual earnings in the year of disability or in the five preceding years, which is used to calculate the offset under 42 U.S.C. § 424a(a), must be adjusted to present value before performing the offset calculation. The parties agree that neither RCW 51.32.220 nor 42 U.S.C. § 424a(a) expressly provides that a claimant's highest annual earnings must be adjusted to present value before performing the offset calculation. On the other hand, neither statute expressly precludes such an adjustment. The statutes are silent on this issue.

¶ 18 We hold that the plain language of the statutes provides that a claimant's highest annual earnings should not be adjusted to present value before making the offset calculation. The statutes do not provide for such an adjustment. Further, 42 U.S.C. § 424a(a)(8) clearly looks to the claimant's earnings in a particular year in the past, without in any way suggesting that those historical wages be adjusted in any manner. Only by adding language to the statute could we allow the adjustment to present value. And if a statute is silent on an issue, we generally decline to read into the statute what is not there. See, e.g., Spokane Research & Def. Fund v. City of Spokane, 155 Wash.2d 89, 103, 117 P.3d 1117 (2005).

¶ 19 Birgen argues without analysis that 42 U.S.C. § 424a(a)(8) is ambiguous because it is silent on whether a claimant's highest annual earnings must be adjusted to their present value. He apparently claims that 42 U.S.C. § 424a(a)(8) reasonably can be interpreted as requiring a present value adjustment or not requiring an adjustment, which creates an ambiguity. However, Birgen does not explain...