EFFECTIVE/EFFECTUATION DATE: 08/27/93
20 CFR 404.408(b)(2)(i)
The question before the Regional Chief Counsel was whether workers' compensation offset under section 224 of the Social Security Act (the Act) was properly applied to the claimant's wage loss benefits paid under section 440.15(3)(b)(1) of the Florida workers' compensation statutes. Section 224 of the Act requires an offset of disability insurance benefits if the disabled worker is receiving workers' compensation benefits. Section 224(d) provides for "reverse offset" as follows:
Section 440.15(9) of the Florida Statutes Annotated contains a reverse offset provision that requires a reduction of the weekly workers' compensation benefit if the worker is receiving disability insurance benefits. When this reverse offset applies, disability insurance benefits are not reduced. Section 440.15(3) of the Florida workers' compensation law contained a provision that paid a monthly wage loss benefit. For years, the position of the Florida Division of Workers' Compensation and, later, of the State courts was that the wage loss benefit was not subject to State offset (the reverse offset) because it was a monthly, not a weekly, benefit. Therefore, SSA reduced the disability insurance benefits due to the individual's receipt of monthly wage loss benefits.
In the Florida laws of 1989 (C.89-289, § 12), section 440.15(3)(b)(1), which provides for wage loss benefits, was amended to substitute "weekly" for "monthly" throughout the subparagraph. The effective date of the amendment was October l, 1989. Pursuant to section 224(d) of the Act, quoted above, and our regulation at 20 CFR 404.408(b)(2)(i), this revision of Florida law cannot be recognized by SSA for purposes of removing offset of disability insurance benefits since the amendment became effective after February 18, 1981. This position has been supported by the Office of the General Counsel in analogous situations arising in North Dakota and Washington. The procedures in SSA's operating instructions, DI 52001.080 of the Program Operations Manual System, apply to the offset of Florida wage loss benefits and disability insurance benefits must be offset using the full unreduced wage loss amount.
Although this Ruling involves Florida wage loss benefits, it clearly illustrates SSA's long-standing position that under the statute and regulation noted above the expansion of an existing, recognized reverse offset law after February 18, 1981, cannot be recognized by SSA.
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