Larry Black v. Richard S. Schweiker, Secretary of Health and Human Services

concurring in the result:

I agree with the majority’s conclusion that Black has failed to prove that his settlement was not a substitute for periodic payments. I would, however, leave open the question of what workers’ compensation payments, under Oregon law, are payable as a lump sum. The question was not argued to or decided by the district court. Accordingly, I would not decide it here. I nonetheless concur in the result since Black has not sustained the burden imposed on the claimant to show what part of a workers’ compensation settlement is not a substitute for periodic payments. 20 C.F.R. § 404.408 (d) (1980).

Black appeals from a judgment of the district court affirming a decision of the Secretary of Health, Education and Welfare (now Health and Human Services), to reduce Black’s disability insurance benefits by the amount of his workers’ compensation settlement. We affirm.

Black claimed to have been disabled by an injury he received while working. His employer denied liability for Black’s condition, but agreed to a lump sum settlement of the claim in the amount of $20,000, pursuant to Or.Rev.Stat. § 656.289(4). 1 After this settlement, the Social Security Administration notified Black that, pursuant to 42 U.S.C. §§ 424a(a) & (b), 2 the disability insurance benefits he had been receiving would be reduced to reflect the value of the settlement. Black contends that the offset was improper.

Black argues that the settlement with his employer was not “a commutation of, or a substitute for, periodic [workers’ compensation] payments” within the meaning of 42 U.S.C. § 424a(b) and thus could not properly be offset against his disability benefits. Black insists that, under Oregon law, the lump sum payment he received was in settlement of a claim that was not yet established and therefore…

670 F.2d 108 Larry BLACK, Plaintiff-Appellant, v. Richard S. SCHWEIKER, * Secretary of Health and Human Services, Defendant-Appellee. No. 79-4653. United States Court of Appeals, Ninth Circuit. Submitted Feb. 17, 1981. Decided Feb. 1, 1982. Steven C. Yates, Malagon & Yates, Eugene, Or., for plaintiff-appellant. Judith D. Kobbervig, Asst. U. S. Atty., Portland, Or., for defendant-appellee. Appeal from the United States District Court for the District of oregon. Before WALLACE, FLETCHER and NORRIS, Circuit Judges. WALLACE, Circuit Judge: 1 Black appeals from a judgment of the district court affirming a decision of the Secretary of Health, Education and Welfare (now Health and Human Services), to reduce Black's disability insurance benefits by the amount of his workers' compensation settlement. We affirm. 2 Black claimed to have been disabled by an injury he received while working. His employer denied liability for Black's condition, but agreed to a lump sum settlement of the claim in the amount of $20,000, pursuant to Or.Rev.Stat. § 656.289(4). 1 After this settlement, the Social Security Administration notified Black that, pursuant to 42 U.S.C. §§ 424a(a) &…