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Alleman v. KE-CO.1/31/2001
AFFIRMED.
The defendants, Ke-Co., Inc., and its workers' compensation insurer, Louisiana Workers' Compensation Corporation (referred to collectively as LWCC), appeal the judgment of the workers' compensation judge finding them no longer entitled to a Garrett offset against Social Security disability benefits received by the plaintiff, Ronald Alleman. We affirm.
FACTS
Alleman suffered a work-related injury to his back and began receiving temporary total disability benefits (TTD benefits) from LWCC. Thereafter, the parties entered into a stipulated judgment recognizing LWCC's entitlement to a Garrett offset pursuant to La.R.S. 23:1225(C) against the Social Security disability benefits received by him. The judgment stated:
That based upon the benefits received by claimant from the Social Security Administration and in consideration of the claimant's average weekly wage, Louisiana Workers' Compensation Corporation is entitled to an offset in the amount of $124.29 per week or $497.16 per month against any future compensation amounts. Henceforth and as long as claimant continues to receive social security retirement benefits the obligation of Louisiana Workers' Compensation Corporation and/or the employer to the claimant shall be no greater than $124.29 per week or $497.16 per month.
The stipulated judgment was rendered on May 3, 1999.
Fifteen days later, on May 18, 1999, the Louisiana Supreme Court rendered Al Johnson Construction Co. v. Donald Pitre, 98-2564 (La. 5/18/99); 734 So.2d 623, overruling its prior decision in Garrett v. Seventh Ward General Hospital, 95-0017 (La. 9/22/95); 660 So.2d 841, which interpreted La.R.S. 23:1225(C) to find that an employer was entitled to a La.R.S. 23:1225(C) offset if its employee received Social Security disability benefits contemporaneously with his workers' compensation benefits.
In Al Johnson Construction Co., 734 So.2d 623, the supreme court overruled Garrett finding that the term"benefits under disability benefits plans" does not include Social Security disability benefits. Since federal law already prevents a temporarily, totally disabled employee's Social Security disability benefits and workers' compensation benefits from exceeding eighty percent of his average weekly wage, the court held that excessive duplicative recovery by the employee under both schemes could not occur.
The reverse offset allowed under La.R.S. 23:1225(A) allows an employer to reduce the duplicate benefits received by a permanently, totally disabled employee to the federal ceiling of eighty percent of his average weekly wage. However, under the court's interpretation in Garrett, the employer was allowed to reduce the temporarily, totally disabled employee's duplicate disability benefits, which federal law already limited to eighty percent of his average weekly wage, even further, to sixty-six and two-thirds percent. Finding that the Legislature could not have intended this "disparate treatment" between permanently totally disabled employees and temporarily disabled employees, the court held that the "term ` enefits under disability benefit plans' in La.R.S. 23:1225 C(1)(c) does not include Social Security Disability benefits." Id. at 628.
Subsequent to the holding in Al Johnson Construction Co., Alleman requested LWCC to remove the offset from his TTD benefits. LWCC refused based on the stipulated judgment. He then filed a disputed claim for compensation seeking to have the offset removed from his benefits and an award of penalties and attorney's fees. The matter was submitted to the workers' compensation judge on briefs. Finding that Al Johnson Construction Co. was interpretive
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