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Dickens v. Pizza Co.3/5/1999
This case concerns workers compensation offsets to social security benefits under K.S.A. 1998 Supp. 44-501(h). The claimant, Preston Dickens, Jr., was injured in an automobile collision while delivering pizzas for his employer, Pizza Company, Inc. (Pizza Hut). The Workers Compensation Board (Board) reduced his workers compensation benefits because he receives social security benefits. Dickens appeals.
The Kansas Trial Lawyer's Association has filed an amicus curiae brief supporting Dickens' position.
Our jurisdiction is under K.S.A. 20-3017, (transferred on motion by appellant).
We have two issues for review: (1) Do the offset provisions of K.S.A. 1998 Supp. 44-501(h) apply to social security retirees injured while working to supplement their income, and (2) if so, is K.S.A. 1998 Supp. 44-501(h) constitutional as applied to claimant and others similarly situated?
Because the answer to the first issue is "no," we do not reach issue two.
FACTS
Dickens retired at age 64. One year after retirement, he took a job with Pizza Hut to supplement his social security income. Dickens worked for Pizza Hut 8 years before his injury in an auto collision. At the time of the injury, Dickens was receiving $149.54 per week in social security retirement benefits. His average weekly income from delivering pizzas was $183.26. Dickens was aware of how much he could earn without decreasing his social security benefits. He did not intend to exceed that amount.
As a result of his injuries, Dickens now suffers from serious cognitive difficulties, including short-term memory loss, unsteady gait, impaired balance, and a shortened attention span.
The administrative law Judge (ALJ):
(1) determined Dickens had a 38 per cent functional impairment rating to the body as a whole and a 100 per cent impairment in his ability to work at any occupation and (2) computed Dickens': (a) temporary impairment and total body disability amount, and (b) the appropriate lien and future payments under K.S.A. 44-504 resulting from settlement of Dickens' tort claim. The parties acknowledge these computations were correct.
The ALJ rejected Pizza Hut's claim that Dickens' award should be offset by his social security benefits under K.S.A. 1998 Supp. 44-501(h). The ALJ reasoned that K.S.A. 1998 Supp. 44-501(h) was intended to prevent the duplication of benefits. According to the ALJ, Dickens' award would not duplicate social security. Rather, the workers compensation benefits would attempt to restore Dickens to the position he was in at the time of his injury (earning a modest wage to supplement his social security benefits). The ALJ relied on Boyd v. Barton Transfer & Storage, 2 Kan. App. 2d 425, 580 P.2d 1366, rev. denied 225 Kan. 843 (1978). Boyd held that a prior statutory offset provision did not apply to retirees injured while supplementing their social security retirement income.
The Board reversed the ALJ's decision not to offset Dickens' award under K.S.A. 1998 Supp. 44-501(h). The Board reasoned that the offset provisions of K.S.A. 1998 Supp. 44-501(h) apply "regardless of whether the social security benefits were being paid prior to an accident or were started after an accident occurred."
DISCUSSION
K.S.A. 1998 Supp. 44-501(h) provides:
"If the employee is receiving retirement benefits under the federal social security act or retirement benefits from any other retirement system, program or plan which is provided by the employer against which the claim is being made, any compensation benefit payments which the employee is eligible to receive under the workers co
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