Lee v. North Dakota Workers Compensation Bureau, 980234
| Decision Date | 22 December 1998 |
| Docket Number | No. 980234,980234 |
| Citation | 587 N.W.2d 423 |
| Parties | Geraldine LEE, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Midwest Air Center, Inc., Respondent. Civil |
| Court | North Dakota Supreme Court |
Stephen D. Little, of Dietz, Little & Haas, Bismarck, for claimant and appellant.
Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, for appellee.
¶1 Geraldine Lee appealed from a district court judgment affirming an order of the North Dakota Workers Compensation Bureau requiring her to refund an overpayment of disability benefits. We hold the Bureau properly construed and applied the social security offset provisions under N.D.C.C. § 65-05-09.1, and we affirm.
¶2 Lee incurred a work-related injury to her back in November 1992. She filed a claim for workers compensation benefits. The Bureau accepted the claim and paid her related medical expenses, disability benefits, and a permanent partial impairment award of $6,300.
¶3 Lee also applied for and received federal social security disability benefits. The Social Security Administration (SSA) determined Lee was entitled to a monthly benefit of $448.30, and on October 23, 1996, gave Lee a retroactive lump sum disability payment of $9,070 for the period from February 1995 through October 1996. On November 6, 1996, the SSA sent Lee a letter informing her it made an error in determining the amount of her retroactive payment and requesting a refund of $4,648. The SSA explained that it had failed to apply a partial offset from her federal benefit under 42 U.S.C. § 424a(a) and (b), for the $6,300 partial impairment payment Lee had received from the Bureau. Lee promptly refunded the entire $4,648 overpayment to the SSA. 1
¶4 Based upon Lee's monthly federal benefit (primary insurance amount) 2 the Bureau concluded it was entitled to an offset, under N.D.C.C. § 65-05-09.1, of $3,986.32 for the period she received the federal lump sum payment. The Bureau withheld $166.28 from a disability payment made to Lee and directed her to refund the remaining offset of $3,820.04 to the Bureau. Lee appealed. After a hearing, the Bureau affirmed its offset determination by order of November 26, 1997. Lee appealed to the district court, which affirmed the Bureau's order. Lee then filed this appeal.
¶5 Lee argues the Bureau misconstrued and misapplied N.D.C.C. § 65-05-09.1. On appeal, we review the decision of the Bureau, and we limit our review to the record before the Bureau. Flink v. North Dakota Workers Comp. Bur., 1998 ND 11, p 8, 574 N.W.2d 784. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm an agency's decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, or the decision is not in accordance with the law. Id. Questions of law, including the interpretation of a statute, are fully reviewable on appeal. Gregory v. North Dakota Workers Comp. Bur., 1998 ND 94, p 26, 578 N.W.2d 101.
¶6 Under N.D.C.C. § 65-05-09.1 the Bureau is entitled to partially offset social security benefits from a claimant's state disability payments:
When an injured employee, or spouse or dependent of an injured employee, is eligible for and is receiving permanent total or temporary total disability benefits under section 65-05-09, and is also eligible for, is receiving, or will receive, benefits under Title II of the Social Security Act [42 U.S.C. 423], the aggregate benefits payable under section 65-05-09 must be reduced, but not below zero, by an amount equal as nearly as practical to one-half of such federal benefit. The federal benefit, or primary insurance amount, must be determined by the social security administration. The amount to be offset must equal the primary insurance amount rounded to the next lowest dollar less credit for either the entire amount of attorneys' fees and costs, or the fees and costs paid to an authorized representative of the employee.... The amount of the offset computed by the bureau initially must remain the same throughout the period of eligibility and may not be affected by any increase or decrease in federal benefits.
¶7 When a disabled person receives both social security and state workers compensation disability benefits, the Social Security Act permits a reduction in social security benefits. 42 U.S.C. § 424a. The calculation of the federal setoff is based on a claimant's monthly earnings, but it can also be based on the claimant receiving a lump sum payment from a state workers compensation program if the lump sum is meant as a substitute for periodic payments. 42 U.S.C. § 424a(b); Frost v. Chater, 952 F.Supp. 659, 662 (D.N.D.1996). If, however, the state, in computing its benefit, has already offset the social security benefit, the Act only allows the SSA to offset the state benefit to the extent the sum of the state benefit and the social security benefit exceeds 80% of the claimant's pre-disability income. See 42 U.S.C. § 424a(a) and (d); Frost, 952 F.Supp. at 665.
¶8 The court in Frost, 952 F.Supp. at 664, held the SSA cannot offset from a recipient's social security benefit any part of a permanent impairment award made under the North Dakota Workers Compensation system, because the award is not a substitute for periodic payments:
Considering the purpose of permanent partial impairment awards under the North Dakota workers' compensation system, this court concludes as a matter of federal law that the $9,600 permanent impairment award was not "a commutation of, or a substitute for periodic payments." 42 U.S.C. § 424a(b). This award serves as "compensation for the loss of bodily function as contrasted to a substitute for periodic payments." Campbell v. Shalala, 14 F.3d 424, 427 (8th Cir.1994). The award is therefore not subject to Social Security offset.
Cf. Campbell v. Shalala, 14 F.3d 424, 428 (8th Cir.1994) (); but see Krysztoforski v. Chater, 55 F.3d 857, 858 (3rd Cir.1995) ().
¶9 The SSA reported to the Bureau Lee's federal monthly primary insurance amount is...
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