*1
WATSON,
CYRUS ORVILLE
Appellant,
and
v.
Claimant
SEEKINS,
KIRK
Employer,
State
Insur-
Respondent.
Fund,
ance
Defendant
No. 88-98.
Aug.
Submitted on Briefs
1988.
Oct.
Decided
Robert Alke, Helena, Kellner, de- McCarter, & Hughes, Mike Sullivan *2 respondent. fendant and Opinion of the
MR. CHIEF TURNAGE delivered the JUSTICE Court. appeals Compensation Court order the Workers’
Claimant disability per- pay by 50 offsetting his state appeal weekly disability pay. his The issues on cent of entire federal (1) determining in work- that the whether the lower court erred (1981), statute, 39-71-702(2), ers’ offset Section MCA face; (2) unambiguous was clear and its whether the lower on (3) costs; attorney fees whether Wat- denying erred Watson and statutory penalty percent is entitled of 20 assessed son to have delay failure against State for or defendant Fund unreasonable claim; (4) pay appeal argue a can on whether Watson lower court’s offset is unconstitutional construction of the trial level. We affirm. argument when he did advance that at the fifty-six, August appellant, age On suffered an industrial him working while which rendered accident for defendant Seekins totally permanently receiving state disabil- began He then disabled. He Compensation Fund. was the Workers’ State benefits from January receiving per Fund in 1985. On $198.00 week from the State 30, 1985, shortly appellant sixty-two years old and Watson turned Se- applied early from Social thereafter retirement benefits benefits, curity monthly payable at $261.00 Administration. These per from month lower than retirement benefits available were full age until postpone had he chosen to retirement sixty-five. months, early
After for about six receiving retirement benefits disability instead. changed applied for his mind and subject disability monthly but was also larger The was a amount (1981). 39-71-702(2), statute, Wat- MCA to the setoff Section disability accepted the Social son’s election of month, an in- Administration, receiving per began $372.00 and he pay. He also per early retirement $111.00 crease of month over the lump payment disability dating received sum back benefits for actually sixty-two. pay- back to the date when he turned This back effectively disability ment his made election to take retroactive and early. eliminated his election to retire 4, 1986, August In a letter dated the Workers’ Divi- applying sion notified Watson it the setoff that would be allowed weekly disability statute to his gov- benefits received from the state (50 benefits) weekly ernment. The setoff of his federal weekly would be deducted from his order duplication disability pay. eliminate the The Division also overpayment $3,461.62, claimed the amount of which it wished to recover from Watson.
The result was that Watson suffered a reduction of $42.81 week disability pay actually monthly from his state received less money overall due to the setoff than he he would have had stuck original with early election of retirement. computations Division’s were as follows:
Step 1 monthly $ resolves disability1 itself
Step 2 weekly = by $ 85.62 $ reduced 50% setoff disability rate Step 3 weekly weekly — $198.00 $42.81 $155.19 setoff workers’ challenged computations. Watson argued those the He that entire amount of pay subject $372.00 to should not be setoff. Rather, argued, only he the difference retirement $111.00 between pay disability pay subject and argued should be to setoff. Watson that he was entitled in pay right to retirement his own $261.00 subject and, therefore, only which was not to setoff the increased amount of computations. $111.00 could be used in Under the setoff theory, money Watson’s he would in suffer a reduction $12.78. argued Defendant State enti- Fund that the election was a choice tling other, If Watson to one benefit the but not both. or (the amount) disability pay, pay entire was sub- chose to take that ject statute allowing the state setoff. Fund found the statute State stating question plain unambiguous, in and that where disabil- subject by setoff given by government it is the federal government. the state Compensation adopted findings of fact
The Workers’ Court Hearing and law as determined Examiner and conclusions of judgment its and on December entered order face, unambiguous and on its af- determined statute to be clear provided order that fecting the entire amount of federal benefits. Its offset in the amount of the defendant was entitled to an paid weekly disability benefits to Watson week based on the entire that an offset further found under the Social Act. It long received federal would continue for as as Watson attorney fees requested he and and that was neither entitled to costs, percent penalty against a 20 Division for unreasonable nor 7, 1988, delay January payment. in motion refusal or Watson’s denied, appeal new trial was and followed. this statutory primary appeal Watson’s issue on is that of construction Appellant argues misinter- legislative intent. that the court and preted statute; suscep- ambiguous that it is that statute exists, interpretations; genuine tible of two that where a doubt claimant; ambiguity injured should be resolved in favor of the finally interpretation would accepting that the court’s Clause, Supremacy in that it be an of the unconstitutional violation disability provisions nullify would the effect persons Act for such as Watson. unambiguous, af- This Court finds the statute to be clear and firming judgment. Affirmation of the Workers’ Court remaining first the lower court on the merits of the issue renders fees, attorney penalty issues of the moot. costs I. INTERPRETATION OF THE STATUTE 39-71-702(2), (1981). MCA This
The offset statute Section its 39-71- statute was amended 1987 and successor Section 702(4). injury effect at the time of it is are to sets the to the claimant standard which the benefits *4 1984), Freidgtwasy computed. Trusty v. Consolidated be Mont. [210 reads in 148,] 1085, St.Rep. That Mont. 681 P.2d 41 973. statute pertinent part as follows: disability benefits periodic
“In cases it is determined that where
313 granted by Security payable injury, the Social Act are because the payable under this section the state [under zero, reduced, below Workers’ are but not Act] equal, nearly practical, periodic amount as as to one-half the federal week, benefits for to be from the amount is calculated security date of the social entitlement.” payable injury, because argues language, Watson only month, refers to the increased amount of which is early the difference between the retirement amount and the disabil- statutory only amount. It his construction that this is the way any interpretation “fair” to read the statute and that other perverse. disagree. We statutory
All attempt construction out courts search v. Cooper Johnson Marias River Electrical legislature. of the intent ative, (Mont. 1984), Inc. 518,] 668, St.Rep. Mont. 687 P.2d [211 role, 1528. This legislative Court’s then is to let the intent control possible. Darby Spar, (Mont. Dept. Ltd. v. Revenue whenever 1985), 376,] 111, St.Rep. Mont. P.2d [217 argues interpretation only is the one fair because it is consistently legislative one construed According with the intent. Watson, legislative intent is to benefit workers disabled more merely (5th Freeman v. Harris than retired workers. Watson cites 1980), Lindquist v. (8th Cir. Brown 1987), 625 F.2d Cir. authority 813 F.2d as construing favor by using claimant legislative intent. cases of lit- these help tle in determining legislative intent for the Montana stat- question. ute in
The Freeman case dispositive only simi- on this issue and is lar to the at the Freeman interpreted leg- case bar in that espoused islative Freeman intent In two federal offset statutes. the claimant received benefits from three sources: federal Social Se- curity, Lung and federal Black benefits. Because both the workers’ and Social were against award, offset ultimately Lung Black re- claimant ceived less programs under the three than he would have under programs heavily two not so offset.
However, the lung distinction here is that the federal black required simultaneously pursue claimant com- state workers’ pensation triggered funds which the double offset. The court found congressional expressed intent Act was the Social primary providers states would *5 where government would assist to workers and inadequate. was programs The result under double offset were compensa- discourage injured seeking miners from state workers’ to congressional intent. Ad- result contravened the tion That benefits. legislative ditionally, corresponding intent be- court found replace injured Lung statute to income for hind the Black was simultaneously goals met legislative These not be workers. two could Thus, by letting Freeman resolved the tension in the case. court but not as to exceed both offsets stand as authorized statute so payable to percent of state workers’ 100 claimant. question of intent help legislative
These facts do us resolve the not required offset Freeman is not analo- for our statute. The double Moreover, gous single these facts. our to the elective offset under in Free- already statute has the ultimate issue decided considered man, benefit, in the percent be 100 or that offset cannot statute, reduce below language of Montana “cannot the benefit zero.”
Likewise, helpful merely Lindquist not in the instant case be- Lindquist legislative declared behind the cause the intent people to encourage was to retirement schedule working postpone continue retirement. Subsequent Injuries Fund v. Ac- also Industrial
Claimant asserts (1963), 508, Cal.Rep. as Cal.App.2d cident Commission By authority “pro for rating” the federal Social benefits. statute, compensate inju- a to industrial California maintained fund injury. preexisting legislative of a The aggravations ries which were re-enter encourage injured was to workers to rehabilitate and intent blind a result of plaintiff the work force. The that case went as that the resultant blindness industrial accident. It was determined Thus, injury. Fund percent by preexisting was caused 68.25 percent the Social payments by to allowed reduce its Security benefits awarded. persua- quite on different facts is not California case that 70 authority pro and find
sive to rate Watson’s federal benefits percent due to and 30 is due to retirement on injury. We are inclined to read that into Montana a interpreting with “pro a rata” a statute the basis of California case totally legislative different intent. compensation statutes legislative
The intent behind purpose replace injured The behind income to workers. prevent replacement” duplication is to or dis- offset statute “over ability pay. applied pay. Offset has never federal retirement
Everyone
agreement
that under the Montana
awarded,
where federal
state setoff occurs.
are
compute
dispute
disability pay
is how much
should be used to
only part
simply
setoff: all of it or
it. The statute
does not allow
part
Watson’s formula to
of the entire award. The
exclude
words
not there. The role of the Court is not to insert what has
(1980),
Sager
been
Chennault v.
Mont.
omitted
the statute.
legislature
exemption,
It should here be noted that Watson did submit not evidence that legislature only intended the difference two between the amounts disability be considered as benefits. Nor did Watson show interpreted way past. statute had ever been that in the Ab- evidence, sent such properly the Workers’ Court change plain reluctant reading language in order Additionally, effect claimant’s wishes. this Court no evi- finds legislative in history dence of the statute.
Therefore, statute, we language “payable conclude that the in the injury,” because of the an exemption not authorization for the part a Thus, disability Watson’s federal from the state setoff. susceptible statute is meanings, ambiguity not of two and no exists. Lastly, we find interpretation that the lower of the statute court’s is not an Supremacy unconstitutional violation of the Clause. argument is allowed to appeal advance that on when he not specifically did raise it trial at because it not meant to independent Rather, challenge constitutional to the it is an statute. statute, attack on how the lower court construed the theory primary inherent to his in in- argument: erred that court terpreting the Equitable statute. Co. v. New- American Assurance (1957), 1023, man 132 Mont. P.2d theory Watson’s is without merit. The state statute prohibit disability does not electing Watson from to take federal preclude nor receiving does it him from he is enti to which Thus, tled under nullify the federal act. stat it does not the federal Therefore, by ute. interpreted lower Montana as constitutional. is, however, likely It injured for between disincentive workers sixty-five funds ages sixty-two to take the federal sub- to elect case, him in ject in his choice not benefit to setoff. As Watson’s did the end. question, along argu- in with the
We considered have by counsel. conclude that the ments and authorities advanced We plain Whether unambiguous language. its statute is clear and plain particular interpretation of is unfair under the this statute is, regrettably, judiciary. facts of the Watson case for Judgment affirmed. HARRISON, GULBRAND-
MR. JUSTICES McDONOUGH and SON concur. SHEEHY, specially concurring:
MR. JUSTICE case, I concur with the of this but I cannot concur result application upon which the principles deviation the basic from setoff under law. is allowed and state federal payments received reason that the total
The maybe compensation law of this Watson under workers’ any payments total disabil- offset extent to him for his federal age Watson has not attained is because of law. Since law, payments under state is entitled to workers’ disability payments law, as the combined bene- well as under fits he receives under sets of laws cannot exceed both disability. “average earnings” current at the outset of his 424(a). provides that the fed- U.S.C. Section federal law further be reduced security eral under social will not if he also receives law under which *7 meet provides benefits for the reduction of state benefits 424(a) (d). 80 42 maximum. U.S.C. Section Herzog Department system explained in v. How this works was of (Wash. 1985), 1247, where the Industry App. P.2d Labor and 696 court said: disability payments, recipients
“Some workers so, federal Security payments. also this entitled to Social When percent of prohibits exceeding law from the combined benefits earnings recipient’s average at time current be exceeding must re- was level suffered. Combined this benefits advantage of this permits take duced. Federal law a state to full entirely benefits the state permitting the reduction taken from to be provision by enacting advantage taken Montana has federal 39-71-702(4), MCA, provides Section which for an offset weekly compensation equal benefits amount to one-half periodic week. receiving weekly wages
If at we assume that that Watson was (his injury compen- $297 the time of in 1979 workers’ $198, wages, sation benefit was of his should be two-thirds (1979)), following computation Section 39-71-702 then the would apply correct to this case:
I. Determination of the Reduction: monthly compensation payments Total $ workers’ 848.57 monthly Security disability Add Social 372.00 1,220.57 Total $ wages injury Subtract at time of 80% (1272.85 80%) -1,018.28 X $ Amount of Reduction 202.29 Application II. of Reduction: Total workers’ $ entitlement 848.57 Subtract reduction -202.29 monthly compensation payment Total $ 646.28 Payments (monthly) III. after Reduction: Security disability payment Social $ 372.00 compensation disability payment Workers’ $ 646.28 1,018.28 permissible payment $ Total weekly payments: IV.Translate compensation disability payments Workers’ = ($646.28 7) $ X 150.79 Security disability payments = ($372 7)X 86.80 Weekly Payments $ TOTAL Unfortunately, yield money the above to the claimant would less (due already than what an- receiving he difference between to the monthly computations), foregoing nual and but I submit proper application taking into benefits to which he entitled account state law.
I judgment. would affirm the *8 = $4,464 year per per X $372 month = $12,230 $4,464 per day days -5- = $12,230 per $85.610952 X week up week in favor of
Rounded Watson —