ORDER AMENDING JUDGMENT
October 26, 1993, the Court adopted the FINDINGS OF FACT,
CONCLUSIONS OF LAW AND PROPOSED JUDGMENT of its hearing
examiner. Within the 20 days allowed for the filing of a
request for rehearing or to amend, ARM 24.5.244, the
petitioner filed a MOTION FOR REHEARING OR TO AMEND JUDGMENT.
Additionally, he filed a MOTION TO AMEND PRETRIAL ORDER in
which he seeks to restate the issue presented for trial. Both
motions have been briefed and are ready for decision.
Motion For Rehearing Or To Amend Judgment
first motion the petitioner seeks two things. First, he
requests the Court to strike those portions of the findings,
conclusions and judgment which relate to an $11, 029.52
overpayment of benefits which resulted from petitioner's
receipt of auxiliary social security benefits. Second, he
requests that a portion of paragraph 10 of the findings be
stricken because it is contrary to the evidence. Petitioner
also requests a new trial.
matter of recouping $11, 029.52 arose at the time of trial
when petitioner disclosed that he had received previously
undisclosed auxiliary social security benefits. The hearing
examiner's decision fixed the amount of the resulting
overpayment at $11, 029.52, and authorized the respondent,
State Compensation Insurance Fund (State Fund), to offset
petitioner's biweekly benefits by an additional $17.32 to
recoup the overpayment.
argues that the hearing examiner's action was outside of
the issues presented for trial. He also points out that the
specific amount of overpayment determined by the hearing
examiner is not supported by the evidence. He is correct on
initiated this action to restore his full biweekly benefits.
At the time of the filing of the petition, the State Fund was
offsetting his benefits to recoup previous lump sum advances
and a known social security overpayment, which is not at
issue here. The State Fund opposed the petition, defending
its offsets. It did not counter-petition for an order
allowing it to take an additional offset.
State Fund agrees that the evidence presented at trial does
not support the hearing examiner's $11, 029.52
calculation but argues that the amount can be derived by
judicially noticing regulations of the Social Security
Administration. Based on those regulations, it argues that
the calculated amount is correct.
error to include this matter in the original decision. The
matter was outside the scope of the issues presented by the
Petition and Pretrial Order, and respondent did not seek
affirmative relief by way of a counter-petition. The evidence
also failed to support the amount determined by the hearing
examiner. It would be inappropriate at this late stage of the
case to now take judicial notice of administrative
regulations in an attempt to justify the hearing
examiner's computation. Moreover, the State Fund will not
be prejudiced by excision of the matter from the decision.
Petitioner does not dispute the State Fund's entitlement
to an offset, and the State Fund does not need Court approval
to take the offset. The State Fund can also readily obtain
the information necessary to exactly calculate the amount of
the overpayment. Therefore, those portions of the original
decision which concern the matter will be deleted.
second argument concerns paragraph 10 of the findings of
fact. That paragraph reads:
10. When claimant petitioned for the first three lump sum
advances he understood from his lawyer that the advances
would be recouped from the 500 weeks of permanent partial
benefits he would receive after the age of 65 rather than
from his current bi-weekly benefits. (Tr. at 5.)
There was no written agreement on
recoupment. [Emphasis added.]
objects to the highlighted portion of the paragraph. He
argues that there in fact was a written agreement on
recoupment, referring the Court to the three petitions for
lump sum advances. He further contends that the agreement was
for the State Fund to recoup the advances out of his future
permanent partial disability benefits. Since he has now been
determined to be permanently totally disabled, unless his
condition improves those partial benefits will not commence
until petitioner reaches age 65, which is in 12 years.
Court has reviewed each of the three petitions. Each contains
the following open-ended language concerning recoupment:
I understand that such a lump sum advance payment will be
deducted from any award or settlement I may ...