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Workers' Compensation Board

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Case # G0553272
Date of Accident: 03/14/2012
District Office: Albany
Employer: University Packaging/General
Carrier: Zurich American Insurance Co
Carrier ID No.: W228001
Carrier Case No.: 317 196466
Date of Filing of Decision: 12/02/2016
Claimant's Attorney: Alex C. Dell Esq.
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 15, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 10, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the carrier was entitled to a retroactive application of a social security benefits offset pursuant to Workers' Compensation Law (WCL) § 16(1-c) and the proper amount of the recoupment of the past offset.

The Workers' Compensation Law Judge (WCLJ) found that the offset provided by WCL 16(1-c) is not waivable and applied it retroactively to March 14, 2012. The WCLJ authorized the carrier to recoup its overpayment in the amount of $67.60 a week.

The Board Panel majority modified the WCLJ's decision, and found that the carrier was entitled to the WCL 16(1-c) offset retroactively to March 14, 2012, and increased the recoupment amount from $67.60 a week to $100.00 a week.

The dissenting Board Panel member would find that the carrier waived its right to the WCL 16(1-c) offset, and would rescind the WCLJ's finding that the carrier may recoup the overpayment created by the retroactive application of the offset.

The claimant filed an application for Mandatory Full Board Review on June 8, 2016, arguing that the offset should not have been retroactively applied to March 14, 2012, and that the recoupment rate should not have been increased to $100.00 a week.

The carrier filed a rebuttal on July 8, 2016, asserting that the retroactive application is correct as a matter of law.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

Decedent died on March 14, 2012, and this claim for workers' compensation death benefits was established with an average weekly wage of $1,433.64. The claimant, decedent's widow, is the sole beneficiary, and her date of birth is February 7, 1941. The claimant was awarded benefits at the statutory maximum rate after March 14, 2012.

The issue of social security benefits offset was raised during the April 1, 2015, hearing, and the ongoing benefits were reduced based upon a tentative offset calculation. The carrier asserted that the offset should be applied retroactively to March 14, 2012, and the case was continued for further proceedings to consider this issue. During the June 3, 2015, hearing, the WCLJ made a finding that the offset for social security benefits was not waivable, and he retroactively applied the offset to March 14, 2012, which created an overpayment. The WCLJ then authorized the carrier to recoup the overpayment at a rate of $67.60 a week out of ongoing awards of $705.36 per week.

Both parties applied for administrative review. The carrier asserted that the recoupment should be increased to allow recoupment at a rate of $112.67 a week because the overpayment would take far too long to recoup, and may never be recouped due to the claimant's age. The claimant asserted that the social security offset should not have been applied retroactively because the carrier never appealed the October 5, 2012, Notice of Decision, which made death benefits payable to the claimant after March 14, 2012. Each party submitted a timely rebuttal.

LEGAL ANALYSIS

"Where the death occurs on or after January [1, 1978], and the spouse is receiving the survivors [sic] insurance benefits under the social security act, the death benefit payable under this section shall be reduced" (WCL § 16[1-c]). "[I]n determining the applicability of an offset, the Court of Appeals has established that 'the proper inquiry under [such] statute is whether, at the time of an award of [workers' compensation] death benefits, the spouse "is receiving" survivors' benefits' (Matter of Volcjak v Cherry Lane Motors, 79 NY2d 962 [1992])" (Matter of Di Gregorio v Coca Cola Bottling Co., 34 AD3d 1150 [2006]).

The Board has previously held that "regardless of any dilatory conduct on the part of the carrier or the claimant's former attorneys, the Board is constrained to apply this reduction as of the date the claimant began to receive [the survivor's benefit], even retroactively" (Matter of Petroleum Heat & Power, 2012 NY Wrk Comp 29716829).

Pursuant to WCL § 22, the Board determines the method and manner in which the carrier is to recoup the amount of an overpayment from the future benefits being paid to the claimant (Matter of Soper v Gouverneur Talc Co., 243 AD2d 1001 [1997]; Matter of Dovi v Grand Union Co., 64 AD2d 343 [1978]). Thus, an overpayment by the carrier can only be remedied upon direction from the Board, as the Board has exclusive jurisdiction to determine recoupment (Matter of Collier v Simmonds Precision, Inc., 122 AD2d 399 [1986]). A carrier may recover any excess monies mistakenly paid if there is no showing that the claimant will suffer a detrimental, material and irrevocable change of position if restitution is granted (Matter of General Accident Insurance Company, Inc. v Yaglowski, 188 AD2d 1032 [1992]).

In this case, the claimant was receiving both social security survivor benefits and WCL § 16 death benefits since March 14, 2012, such that the offset was required as of that date. The language of WCL § 16(1-c) makes clear this offset occurs automatically by operation of law, and the controlling case law holds that the carrier cannot waive it.

With regard to the overpayment, an increase of the recoupment to $100.00 is rational, reasonable and consistent with the preponderance of the evidence because of the claimant's age and the large amount of the overpayment.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the WCL § 16(1-c) offset for social security survivor's benefit cannot be waived, so it applies retroactively to March 14, 2012, and the carrier may recoup its overpayment at $100.00 a week.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed June 9, 2015, is MODIFIED to find that payments shall be paid to the claimant at the tentative rate of $551.31 per week, due to the offset for the social security survivor's benefit of $221.65 per week. The carrier may recoup the overpayment at the rate of $100.00 per week. The carrier is directed to file an accounting of the amount of overpayment within thirty days. The decision is otherwise affirmed. No further action is planned by the Board at this time.