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McIntosh v. Sedgwick County6/11/2004
n, a firefighter, suffered a work-related back injury at age 40. Upon return to work he was told to fill out his retirement papers. Green had an age-based retirement plan and a disability benefit plan. He also applied for workers compensation benefits. Contrary to the City's position, the Board did not apply K.S.A. 44-501(h) to reduce Green's workers compensation benefits by the amount of his retirement benefits. The issue on appeal was whether the benefits to Green were in the nature of a traditional retirement benefit or a disability benefit. In considering whether Green received a traditional retirement benefit, the court noted that "Black's Law Dictionary defines 'retire' as ' o terminate employment or service upon reaching retirement age.'" 26 Kan. App. 2d at 56. The court concluded that the substance of Green's benefits from the City was disability assistance rather than retirement benefits for which an offset under 44-501(h) would apply. 26 Kan. App. 2d at 57.
A month after Green, the Supreme Court decided Treaster v. Dillon Companies, Inc., 267 Kan. 610, 987 P.2d 325 (1999). The central issue was the effective date of Treaster's injury, since if it was after the effective date of K.S.A. 44-501(h), the setoff provisions would reduce her workers compensation benefits due to her receipt of social security retirement benefits. The court found that her injury occurred on August 2, 1993, after the July 1, 1993, effective date of 44-501(h). She stopped working on May 28, 1994, and was on disability status for the remainder of the year. She retired on January 1, 1995, and began receiving retirement benefits. Accordingly, Dillon was entitled to offset the retirement benefits she began receiving in January 1995 against her workers compensation benefits. 267 Kan. at 625.
In November 1999, the Supreme Court decided Wishon v. Cossman, 268 Kan. 99, 991 P.2d 415 (1999). Wishon received workers compensation benefits as well as social security disability payments. Upon his reaching age 65, the disability payments were converted to retirement payments pursuant to 42 U.S.C. ยง 402(a)(3)(A) (1994). The Board reduced Wishon's workers compensation benefits by the amount of his social security retirement benefits in accordance with K.S.A. 1998 Supp. 44-501(h). Wishon argued that since he was forced to retire due to injury rather than voluntarily choosing to retire, the 44-501(h) offset should not apply. He also argued that the court should adopt the approach used and conclusion reached in Dickens. In rejecting both arguments, the court noted that at age 65 the payments to Wishon changed to retirement payments because of his age. Thus, his retirement benefits were based on his age rather than his disability, and "the plain language of K.S.A. 44-501(h) requires that his workers compensation award be reduced by his social security payments." 268 Kan. at 106-08.
Returning to the case at hand, McIntosh began receiving social security benefits at about the time he reached age 65 in April. He intended to retire in August. In the meantime, he continued to work full-time for the County doing the same job as before. He suffered an injury in June, before his anticipated retirement date. His circumstances were markedly different from those in Dickens, where the claimant retired, began collecting social security retirement benefits, and years later suffered a work-related injury. McIntosh was not retired at the time of his injury. His income from the County at the time of his injury was not post-retirement income used to supplement his retirement income. As noted earlier in Green, to retire is "'to terminate employment or service upon reaching retirement age.'" Green, 26 Kan. App. 2d at 56. McIntosh terminated neit
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