STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


RICHARD W. DRAKE, Applicant

MEWS TRUCKING INC, Employer

HERITAGE MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 90068259


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

1. In the sixth (last) paragraph of the ALJ's Findings of Fact, delete the sixth sentence and substitute:

"The parties shall attempt to reach an agreement on the amount by which current payments to the applicant shall be reduced to account for the overpayment. Until such an agreement is reached, the respondents remains liable for the full monthly payment ordered hereunder. Failing agreement by September 1, 1997, the respondents may apply to the Department of Workforce Development. for further appropriate action on recovery of the overpayment."

2. After the last sentence in the INTERLOCUTORY ORDER paragraph of the ALJ's decision, insert:

"The parties shall attempt to reach an agreement on the amount by which current payments may be reduced to account for the overpayment of benefits, as provided in the Findings of Fact as amended."

ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed July 2, 1997
drakeri.wmd : 101 : 8  ND § 5.35

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

In their petition for commission review, the employer and the insurer (collectively the respondent) does not appeal the merits of the decision, but only the amount due. Essentially, the respondent asserts the amount of the payment due the applicant after the social security offset is too high, and that it should be allowed an offset against monthly benefit payments to collect an overpayment of approximately $15,000 at the time of the ALJ's decision.

With respect to the social security offset: The department recalculated the net weekly rate from $216.03 to $225.28, effective January 1, 1997. The monthly rate thus increased from $928.93 to $976.21. The reason for the increase is a change in the "index" amount used in determining the amount of the "average current earnings" by the social security administration for the purpose of offset. Because it does not appear that a copy of the "Social Security Reverse Offset Worksheet" making this change was sent to the respondent, a copy is attached to this decision.

With respect to the overpayment: The respondent correctly observes that the department and the commission will offset overpayments against the "back-end" of future awards, when possible. See: Marla Sandridge v. Mid American Long Distance, WC claim no. 89023179 (LIRC, July 17, 1996) and Neal & Danas, Workers Compensation Handbook, § 5.40 (3d ed. 1990). But in a permanent total disability award, there is no "back-end." Nor does it appear from the Commission's calculations that the ALJ's order reduces the amount of payments currently due the applicant (after the social security offset) to provide for the recovery of the overpayment.

The commission understands that, the WC division's (1)   policy is to not automatically reduce current payments for permanent total disability on the expectation that the parties themselves will agree to a repayment/withholding plan. The commission has amended the ALJ's order to direct the parties to pursue such an agreement in this case. Failing that, the insurer may to apply to the department for further proceedings and, if appropriate, to the commission for review.

cc: ATTORNEY THOMAS M JACOBSON
JACOBSON & HUPY SC

ATTORNEY PAUL R RIEGEL
BORGELT POWELL PETERSON & FRAUEN SC


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Footnotes:

(1)( Back ) Workers Compensation Division of the Department of Workforce Development.