SSR 93-1: SECTION 224(a) AND (d) OF THE SOCIAL SECURITY ACT (42 U.S.C. 424a(a) AND (d)) DISABILITY -- WORKERS' COMPENSATION OFFSET -- OFFSET OF WAGE LOSS BENEFITS -- FLORIDA

20 CFR 404.408(b)(2)(i)

: Section 224 of the Social Security Act requires an offset of disability insurance benefits if the disabled worker receives workers' compensation benefits. By statute, this reduction does not apply if the workers' compensation law or plan provides for a reduction of the workers' compensation benefit if the worker receives disability insurance benefits and the reverse offset law or plan was provided for on February 18, 1981. This is referred to as reverse offset. The Florida workers' compensation law contains a reverse offset plan, for weekly workers' compensation benefits, that was provided for on and prior to February 18, 1981. This reverse offset law precludes the Social Security Administration's (SSA) offset of disability insurance benefits. The Florida workers' compensation law also provides for monthly wage loss benefits, which SSA can use to offset disability insurance benefits.
: In 1989, the Florida wage loss law was amended to substitute "weekly" for "monthly" so as to include wage loss benefits under the Florida reverse offset law. Since this expansion of an existing reverse offset law did not occur until after the statutory 1981 controlling date, SSA does not recognize this as part of the Florida reverse offset law. Therefore, SSA can reduce an individual's disability insurance benefit due to the disabled worker's receipt of wage loss benefits.

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:

: "The reduction of benefits required by this section shall not be made if the law or plan described in subsection (a)(2) [conditions for reduction] under which a periodic benefit is payable provides for the reduction thereof when anyone is entitled to benefits under this title on the basis of the wages and self-employment income of an individual entitled to benefits under section 223 [disability insurance benefit payments], and such law or plan so provided on February 18, 1981."

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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