DI 52170.040 Notice Provision for Pre-1981 Amendment Cases
This section only applies to cases with a date of disability onset (DDO) before March 1, 1981 or disability insurance benefit (DIB) month of entitlement (MOET) before September 1, 1981.
NOTE: Only workers’ compensation (WC) including Part C Black Lung Benefits (BLB) can cause offset in these cases. PDB offset does not apply to notice provision cases.
A notice is any form of information that the worker is receiving or will receive workers’ compensation (WC) or an increase in the WC.
B. When offset applies
Impose offset only for the months after the month SSA receives notice of the receipt and/or an increase in the WC amount (including Part C Black Lung benefit (BLB) entitlement as of February 1974).
If the individual states he or she is entitled to WC, offset applies beginning with the month following receipt of this information if there is entitlement to DIB for that month.
NOTE: It may take longer to get proof/verification of the WC amount(s) paid and when paid.
CAUTION: For Part C BLB Alert cases, adjustment is always effective the date of BLB increase. See DI 52115.015 and DI 52115.020 for Part C BLB information.
C. Sources of notice
Applicant, spouse, representative payee
Outside source, e.g., attorney, employer, employer’s insurance company, or the appropriate State agency.
SSA-2514 (Record of Claimant’s Intent to File) (or its electronic equivalent) can be used only when the SSA-2514 is annotated with a statement regarding WC entitlement.
NOTE: Contact the worker and/or appropriate agency if there is reason to believe the worker is receiving WC or an increase in WC but notice was not received.
D. WC rate increases
If the WC rate increased, the effective date of the offset recomputation depends on when SSA received notice of the WC increase.
1. Notice of increase received after January 31, 1978
Offset is recomputed effective the month after the month SSA received notice of the WC increase.
2. Notice of increase received between April 23, 1971 and January 31, 1978
Offset is recomputed effective with the date of the WC rate change. However, the lower DIB amount is not payable for months before April 1971. If the WC increased because of a new and separate award (e.g., a supplemental State WC award), also consider the higher rate in recomputing the offset for months after the first month SSA received notice of the supplemental award.
3. Notice of increase received before April 23, 1971
If notice of an increase in the WC rate was received before 04/23/1971, the increased WC rate cannot be used to reduce the amount payable after offset below the amount payable in the first possible month of offset (plus any protected increases).
E. WC rate decreases
If the WC rate decreased, the higher DIB amount payable after offset is effective with the date of the WC rate decrease, regardless of when SSA received notice.
F. Obtaining notice from a prior claim
Notice may be in a prior denied or terminated DIB folder. When offset applies and the prior folder has not been associated with the current folder, determine whether to obtain the prior folder post-adjudicatively.
If the MBR shows WC entitlement or offset in a prior period of disability and current information shows WC has been paid continuously since the time of the prior claim, assume the prior folder contained notice.
2. MBR cannot be used
If the MBR cannot be used, obtain the prior folder if:
DIB benefits are payable in or prior to the month of “notice” in the current claim; and
WC information in the current claim shows WC was payable or a lump-sum award was made at the time of the prior claim; and
There is no evidence of a break in WC entitlement.
Pending receipt of the prior folder, impose offset effective the month after the month of notice in the current claim.
G. Interruption of WC payment
1. Determining break in WC entitlement
The following factors may be relevant in determining if there is a break in WC entitlement:
A new application is necessary for WC payments to resume.
There is evidence of a new accident or disease.
An appeal is necessary under State law before additional payments can be made.
2. Entitlement to WC terminates
If the worker later files a supplemental WC claim or successfully appeals the WC termination, offset based on the WC paid pursuant to the later claim is imposed for months after notice of the additional award is received.
3. WC payments suspended
Offset may be imposed retroactive to the resumption of the WC payments without additional notice (since the worker has been continuously entitled to WC) if the WC rate is the same or lower than the WC rate before WC payments were suspended.
However, if the resumption of WC payments includes an increase in the WC rate, the date of the notice affects offset as follows:
If notice of an increase in the WC rate was received 04/22/1971 or earlier, the increased WC rate cannot be used to reduce the amount payable after offset below the amount payable in the first possible month of offset (plus any protected increases).
If notice of an increase in the WC rate was received between 04/23/1971 and 01/31/1978, adjust offset retroactive to the effective date of the change, but not prior to 04/1971.
EXAMPLE: Notice is received 04/23/1971 regarding a WC rate increase effective 12/13/1970. DIB payable 12/1970 on is less than what was payable before we received notice of the WC rate changes. Offset is computed effective 12/13/1970, the effective date of the WC rate increase. We must leave the old rate payable after offset for 12/1970-03/1971 but we can pay the new rate payable after offset effective 04/1971.
If notice of an increase in the WC rate was received 02/01/1978 or later, use the old rate to calculate offset through the month we received notice of the resumption of WC payments. Use the new increased rate to calculate offset beginning with the month after the month notice was received.
If there is a change from one type of WC payment to another, e.g., temporary to permanent payments, and it is clear the temporary payments were stopped pending a permanent disability rating (i.e., additional payments are contemplated), there is no break in entitlement and no new “notice” is required. However, if the resumption of WC payments includes an increase in the WC rate payable, follow the instructions in DI 52170.040D.1. in this section.
H. Applying expenses to notice provision cases
1. Rate increase
If a retroactive WC increase is reported and notice applies, do not use the higher WC rate until the month after the month of notice. Note that if attorney fees were excludable from the retroactive increase, it is possible that DIB payable after offset in the retroactive period using the higher WC rate with expenses excluded will be higher.
If a retroactive offset calculation would be beneficial to the number holder (i.e., offset would be lower or removed), take action to reduce/remove offset retroactively whether the case is a notice provision case or not. In notice provision situations, do not take retroactive actions that will adversely affect the number holder.
2. Rate decrease
If the WC rate decreases, the higher rate payable after offset is effective with the date of the decrease per DI 52170.040E. in this section regardless of the notification date.
I. Examples that demonstrate applicability of Notice Provisions
1. Example 1 – Notice after MOET
The individual states on the SSA-16 (Application for Disability Insurance Benefits) that he or she is receiving WC payments. The date claim filed (DCF) is 12/13/1977. The DIB month of entitlement (MOET) is 08/1977. Offset is imposed 01/1978.
2. Example 2 – Notice before MOET
The individual states on the SSA-16 that he or she is receiving WC payments. The DCF is 11/30/1978. The DIB MOET is 12/1978. Offset is imposed 12/1978.
3. Example 3 – WC pending – Notice before MOET
The individual states he or she filed for WC but has not received any payments at the time of filing the SSA-16. Workers’ compensation is later awarded. The DCF is 12/03/1978. The DIB MOET is 04/1979. Notice is received 01/12/1979. Offset is imposed 04/1979, the first month of DIB entitlement.
4. Example 4 – WC Pending – Late notice
The individual states on the SSA-16 that he or she has filed for WC but has not yet received any WC payments. WC is later awarded. The DCF is 10/15/1978. The DIB MOET is 11/1978. WC was initially awarded 04/05/1979. Notice is received 08/18/1979. Offset is imposed 09/1979.