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Peters v. American Zurich Ins. Co.

Court of Workers Compensation of Montana

July 31, 2013

PHILLIP PETERS Petitioner
v.
AMERICAN ZURICH INS. COMPANY Respondent/Insurer.

Submitted: June 3, 2010.

ORDER GRANTING RESPONDENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING PETITIONER'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING RETIREMENT ACCOUNT CONTRIBUTIONS, SOCIAL SECURITY OFFSETS AND RECOUPMENT, AND RECOUPMENT OF OVERPAYMENT

JAMES JEREMIAH SHEA JUDGE.

Summary:

Respondent moved for summary judgment on the issues of Petitioner's entitlement to have his employer's 401 (k) contributions included in his average weekly wage calculation, an offset and recoupment of past overpayment for Petitioner's son's receipt of auxiliary SSDI benefits, and recoupment of a $6, 048.60 overpayment which Respondent erroneously made to Petitioner. Petitioner cross-motioned for summary judgment on the issues of the offset and recoupment of past overpayment for his son's auxiliary SSDI benefits and the $6, 048.60 overpayment, arguing that Respondent is equitably estopped from claiming an offset of the auxiliary SSDI benefits and from recouping the overpayments.

Held:

Respondent is entitled to summary judgment in its favor on these issues. Section 39-71-123(2)(b)(i), MCA, clearly bars the inclusion of employer contributions to 401 (k) plans in average weekly wage calculations. On the remaining issues, Petitioner did not establish the sixth element of equitable estoppel in that he has not proven that allowing Respondent to recoup the overpayment would change Petitioner's position for the worse.

¶1 Respondent American Zurich Ins. Company (Zurich) moves this Court for partial summary judgment in its favor on the issues of: Petitioner Phillip Peters' entitlement to a change in benefits based on his employer's contribution to a retirement account; Zurich's right to offset certain social security benefits and recoup overpayments related thereto; and Zurich's right to recoup an overpayment of $6, 048.60.[1] Peters opposes Zurich's motion.[2] Peters has filed a cross-motion for summary judgment in his favor on the issues of the social security offset and the $6, 048.60 overpayment.[3]

Undisputed Facts[4]

¶2 On January 18, 1999, Peters suffered an industrial injury while employed by Roscoe Steel. Zurich accepted liability for the claim and has paid medical, temporary total, permanent partial, and permanent total disability benefits.

¶3 On October 29, 2001, Peters' counsel informed Zurich that Peters was receiving social security disability insurance (SSDI) benefits. Peters' counsel did not inform Zurich that Peters' son was receiving auxiliary SSDI benefits.

¶4 On November 1, 2001, Zurich's claims adjuster wrote to Peters and his then-counsel and asserted Zurich's right to a SSDI offset of Peters' benefits. Peters consented to Zurich taking an "appropriate social security offset."

¶5 In early 2003, Jerry Driscoll, a union representative, contacted Zurich's claims adjuster Jim Kimmell. Driscoll erroneously convinced Kimmell that Peters' benefits had been underpaid and obtained a check for Peters in the amount of $6, 048.60.

¶6 On April 23, 2007, Zurich learned that Peters' son had been receiving $480 per month in auxiliary SSDI benefits after it posed a discovery question to Peters which asked about the gross income of family members.

¶7 On June 13, 2007, Zurich informed Peters that it would not waive its entitlement to a social security overpayment.

¶8 On September 4, 2007, Zurich informed Peters that it was seeking $7, 467.74 in overpayment of SSDI benefits in connection with Peters personally, and an additional $23, 591.16 in connection with Peters' son's receipt of auxiliary SSDI benefits. Zurich's adjuster began an additional weekly offset of Peters' benefits to recoup the overpayment.

¶9 On October 15, 2007, Peters' counsel wrote to Zurich and, pertinent to the present Order, demanded that Zurich waive the overpayments resulting from Peters' receipt of SSDI benefits and Peters' son's receipt of auxiliary SSDI benefits. Peters further demanded that Zurich increase Peters' average weekly wage to include Peters' employer's contribution to a retirement plan.

¶10 Zurich has refused to waive its right to the overpayments and has denied Peters' request to have his employer's contribution to a retirement plan included in his average weekly wage calculation. Zurich now moves the Court for summary judgment in its favor on these issues, as well as the issue of recoupment of the $6, 048.60 check Kimmell tendered at Driscoll's request. Peters has filed a cross-motion for summary judgment on the issues of the SSDI and auxiliary SSDI offset and the recoupment of the $6, 048.60 payment.

Analysis and Decision

¶11 For the Court to grant summary judgment, the moving party must establish that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law.[5] The material facts necessary for disposition of the issues presented in this motion are undisputed.[6] Accordingly, these issues are appropriate for summary disposition.

¶12 This case is governed by the 1997 version of the Montana Workers' Compensation Act since that was the law in effect at the time of Peters' industrial accident.[7]

Whether Peters is entitled to have his employer's 401 (k) contributions included in his ...


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