WHEELER v. BOARD OF ADMINISTRATION OF PUBLIC EMPLOYEES RETIREMENT SYSTEM FN (1979)

Plaintiff, employed as a correctional officer, became disabled and retired from state public service, and received a $500 monthly disability retirement effective August 1, 1975. In February 1976, seven months after his effective date of retirement, he was awarded worker's compensation disability indemnity in the amount of $182.40 per month, and in May 1976, federal authorities determined that he was entitled to social security benefits of $288.20 per month, effective February 1974. Social security regulations required that plaintiff's social security entitlement be reduced by the amount of any state worker's compensation benefits. As a result, plaintiff's social security monthly payment was reduced by $182.40, the amount received from worker's compensation. His net social security payment each month is $105.80.

Following notification of the social security award, plaintiff was informed by defendant, Board of Administration of the Public Employees' Retirement System (hereinafter Board), that because of the provisions of Government Code section 21293.5, his state disability retirement would be reduced by $288.20 per month, i. e., the amount he was entitled to receive under the federal social security system. Plaintiff appealed this action to the Board, contending: (1) his state retirement should be reduced only by the amount of federal social security Actually received, or (2) his state retirement should not be reduced at all. Following a hearing, an administrative law judge issued a proposed decision, for consideration by the Board, favorable to plaintiff on the first of the two contentions. The Board rejected the proposed decision and rendered its independent decision denying relief.

Plaintiff filed a petition in the superior court for writ of mandate pursuant to Code of Civil Procedure section 1094.5, seeking to set aside the Board's decision and again asserted his two alternative contentions. From the denial of the petition this appeal ensued.

Plaintiff contends the Board improperly allocated a $288.20 per month social security benefit set-off from his state retirement allowance. Plaintiff asserts the proper set-off should be limited to $105.80 per month, the amount he actually now receives from social security. We disagree.

Government Code section 21293.5 provides in pertinent part: “The disability retirement allowance of a state member who retires for industrial disability and who is credited with service as a member of the system, compensation for which was also subject to contribution under the federal system, shall be reduced by the amount of any retirement or disability benefit he is entitled to receive under the federal system. . . . The amount of the reduction shall not be adjusted because of changes in the amount of the benefit under the federal system . . . occurring after the effective date of retirement for disability under this system.”

The undisputed facts presented indicate that plaintiff retired from state service effective August 1, 1975. While on the effective date of his retirement federal authorities had not acknowledged that he was entitled to social security benefits, a subsequent decision was made that plaintiff was so entitled and the award was made retroactive to February 1974. As a result, on August 1, 1975, plaintiff was entitled to receive $288.20 per month social security benefits. Plaintiff thereafter received an award of worker's compensation benefits in February 1976, seven months after his retirement. The foregoing sequence of facts establishes that on August 1, 1975, plaintiff was “entitled to receive” an award of social security ($288.20) unaffected by deduction for state worker's compensation, as that compensation was not awarded until seven months later. Factually, the proper deduction from his state disability retirement attributable to social security on the date of plaintiff's retirement was $288.20 per month.

Having concluded that the proper reduction in his retirement benefit for social security benefit on plaintiff's date of retirement was $288.20 per month, the further conclusion is compelled that by reason of the provisions in Government Code section 21293.5, that the deduction “shall not be adjusted because of changes in the amount of the benefit under the federal system . . . occurring after the effective date of retirement for disability under this system,” the subsequent reduction in the amount of social security benefits received by plaintiff may not operate to reduce the amount of reduction in his state retirement benefits.

Moreover, the language of Government Code section 21293.5 directs that the amount of disability retirement be reduced by the amount of disability benefit the retiree “is Entitled to receive under the federal system.” We do not construe that language to mean the reduction in the state disability retirement shall be in the amount of social security benefit the retiree “is entitled to receive” as reduced by reason of any required offset or deduction, as in this case, by the amount of a worker's compensation award.

Such a construction would effect a mischief on the obvious legislative intent. For example, if the reduction in the California retirement benefit was reduced in the first instance only by the actual amount of social security benefits received, i. e., $105.80 per month, a subsequent increase to the full amount of social security benefits to which plaintiff will be entitled at the time worker's compensation is terminated ($288.20 per month) would afford plaintiff an unintended retirement windfall. The language of Government Code section 21293.5 that “The amount of the reduction shall not be adjusted because of changes in the amount of the benefit under the federal system . . . occurring after the effective date of retirement for disability under this system” would preclude the Board from deducting more than the amount of social security which plaintiff claims should have been deducted ($105.20), even though his social security benefits are subsequently increased to his full entitlement, $288.20 per month.

The intent of the Legislature is expressed in unequivocal terms. The deduction in state disability retirement benefits must be made in the amount of social security benefits to which the retiree is found to be entitled, not by that amount as adjusted and then paid. For us to adopt the reasoning proposed by plaintiff would effectively amend the statute by judicial decree. We decline to do so. (See Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 36, 124 Cal.Rptr. 852.)

As an alternative contention plaintiff argues the Board is precluded from deducting Any amount from his state disability retirement benefits due to funds received from social security. In support of this contention plaintiff relies upon Government Code section 21293.5, and argues that it was not determined that he was entitled to social security until 1976, a date subsequent to his effective date of retirement. However, the argument ignores the fact that the social security award was made retroactive to February 1974. As a result, plaintiff was “entitled to receive” the federal benefits on August 1, 1975, and was in fact receiving on that date, although actually received a lump sum at a later date. The contention is without substance or merit.

The judgment is affirmed.

EVANS, Associate Justice.

REGAN, Acting P. J., and PARAS, J., concur.