Richard Sutton appeals the district court’s order affirming the Commissioner of Social Security’s decision that he had been overpaid disability insurance benefits (“DIB”) and was not entitled to a waiver of overpayment. Sutton *2 concedes that his DIB was properly offset by a state workers’ compensation benefit for the period from January through April 2011 but challenges an offset for the period from January through November 2010. We have jurisdiction under 28 U.S.C. § 1291. The Commissioner “bears the burden of proving the fact and amount of overpayment.” McCarthy v. Apfel , 221 F.3d 1119, 1124 (9th Cir. 2000). We review the Commissioner’s determination for substantial evidence. Id . at 1125. We reverse and remand.

Sutton’s lump-sum Washington state permanent partial disability award was not a periodic benefit subject to offset. 42 U.S.C. § 424a(a) (an individual’s DIB must be offset by any “periodic benefits on account of his or her total or partial disability (whether or not permanent) under a workmen’s compensation law or plan of the United States or a State” if the total of the two benefits exceeds a certain amount); see also id. § 424a(b) (a lump-sum benefit is excluded from this requirement “except to the extent that it is a commutation of, or a substitute for, period payments”). This court has held that where state law provided that a lump- sum award was intended to compensate for the economic loss of earning capacity, the award was a periodic benefit subject to offset. Hodge v. Shalala , 27 F.3d 430, 432-33 (9th Cir 1994). Under Washington law, however, an award of workers’ compensation benefits for permanent partial disability is not wage compensation *3 intended to cover a claimant’s lost earning capacity. See Willoughby v. Dep’t of Labor & Indus. of the State of Wash. , 57 P.3d 611, 616-17 (Wash. 2002); McIndoe v. Dep’t of Labor & Indus. , 26 P.3d 903, 908 (Wash. 2001). We therefore reverse the district court’s judgment and remand with instructions to remand to the Commissioner for a recalculation and refund of any offset against Sutton’s DIB.

REVERSED and REMANDED.

[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

[**] The panel unanimously concludes this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2).