20 CFR 404.408

SSR 72-50

Where claimant in 1967 suffered a work related knee injury which entitled him to State workmen's compensation payments and in 1969 he became entitled to disability insurance benefits under title II of Social Security Act on the basis of a heart impairment, and the amount of initial compensation payment for the knee injury continued at same rate with no increase because of heart impairment, held, the reduction provision of section 224 of Act applies since that section encompasses all periodic workmen's compensation payments received by claimant while entitled to disability benefits under section 223 of title II, been through the two benefits may be based on different impairments.

Section 224 of the Social Security Act (42 U.S.C. 424) provides that a claimant's disability insurance benefit must be reduced in accordance with the formula set out therein, if he receives periodic workmen's compensation payments or a lump-sum payment as a substitute for periodic payments.

In December 1967 an insured individual, R, suffers a knee injury in the course of his employment. As the result thereof he became entitled to periodic workmen's compensation payments under State law. After a brief recovery period R returned to work on a full time basis. His right to the State payment was unaffected by his employment and, in fact, he continued to be in receipt of such payments. In June, 1969,, a heart attack forced R to cease working. Payments for the prior injury continued at the same rate, with no increase resulting from the heart impairment.

Pursuant to an application for disability insurance benefits, the Social Security Administration determined that R became disabled within the meaning of sections 216(i) and 223 of the Social Security Act in June 1969 solely on the basis of his heart disorder, and that he was not disabled, for social security purposes, prior to that date.

The question raised is whether the reduction of disability insurance benefits required by section 224 of the Act applies only where the individual's disability insurance benefits and his workmen's compensation payments are based on the same injury or whether such reduction also applies where a disability insurance beneficiary simultaneously receives workmen's compensation payments which are based on a different impairment.

From the language of the statutory provision, it will be noted that section 224 simply requires a reduction in title II benefits based on disability or account of ". . . periodic benefits for a total or partial disability (whether or not permanent) . . . payable (and actually paid) to . . . [a title II disability beneficiary] under . . . [a] workmen's compensation law or plan . . ."

Nothing in the section directs that the workmen's compensation award and the finding of disability under title II must be based upon the same impairment for offset to be required. Rather, it seems the Congressional interest in enacting section 224 was in seeing that disabled workers did not receive combined title II and workmen's compensation benefits (tax free) in excess of the amount earned prior to becoming disabled. Cf., S.Rep. No. 404, 89th Cong., 1st Sess. 13, 100, 260; Lofty v. Richardson, 440 F.2d 1144 (6th Cir., 1971); cert. denied, 404 U.S. 985 (1971). This is evidenced by paragraph 224(a)(5) of the Act which authorizes offset only insofar as the total of title II benefits based on disability and workmen's compensation benefits "* * * exceeds that higher of * * * 80 per centum of * * * average earnings' * * *." From this language it does not appear that Congress intended that the section 224 offset would apply only in instances where the title II disability benefit and workmen's compensation benefit resulted from the same impairment.

Furthermore, there exist basic differences between the respective programs. Generally speaking workmen's compensation is payable for partial or total incapacity resulting from an injury arising out of and in the course of employment. E.g., G. L. Mass., Ch. 152, secs 26, 34, 34A, 35. However, title II disability benefits may be paid whenever an insured individual, who otherwise qualifies therefor, is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 423(d)(1)(A); 20 CFR 404.1501(a)(1)(i). The title II program does not require that the impairment causing the incapacity be incurred in the course of employment. Consequently, in any particular situation, depending on the facts involved, the work-related injury may be: (1) the sole basis for a finding of disability under title II, (2) one of several conditions which when taken in combination may have resulted in such a finding, or (3) (as here) have had no bearing on the title II determination. It is unlikely that Congress would have intended to distinguish between the various situations for section 224 purposes without including language in section 224 specifically pinpointing these distinctions.

Accordingly, it is held that the section 224 reduction provision is applicable where the claimant was receiving periodic workmen's compensation payments while entitled to title II disability insurance benefits, even though the former were based upon a impairment different from the latter.

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