AN
ACT Relating to industrial insurance benefit errors; and amending RCW
51.32.240.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
51.32.240 and 1991 c 88 s 1 are each amended to read as follows:
(1)
Whenever any payment of benefits under this title is made because of clerical
error, mistake of identity, innocent misrepresentation by or on behalf of the
recipient thereof mistakenly acted upon, or any other circumstance of a similar
nature, all not induced by fraud, the recipient thereof shall repay it and
recoupment may be made from any future payments due to the recipient on any
claim with the state fund or self-insurer, as the case may be. The department
or self-insurer, as the case may be, must make claim for such repayment or
recoupment within one year of the making of any such payment or it will be
deemed any claim therefor has been waived. The director, pursuant to rules
adopted in accordance with the procedures provided in the administrative
procedure act, chapter 34.05 RCW, may exercise his discretion to waive, in
whole or in part, the amount of any such timely claim where the recovery would
be against equity and good conscience.
(2)
Whenever the department or self-insurer fails to pay benefits because of
clerical error, mistake of identity, or innocent misrepresentation, all not
induced by recipient fraud, the recipient may request an adjustment of benefits
to be paid from the state fund or by the self-insurer, as the case may be,
subject to the following:
(a)
The recipient must request an adjustment in benefits within one year from the
date of the incorrect payment or it will be deemed any claim therefore has been
waived.
(b)
The recipient may not seek an adjustment of benefits because of adjudicator
error. "Adjudicator error" includes the failure to consider
information in the claim file, failure to secure adequate information, or an
error in judgment.
(3)
Whenever the department issues an order rejecting a claim for benefits paid
pursuant to RCW 51.32.190 or 51.32.210, after payment for temporary disability
benefits has been paid by a self-insurer pursuant to RCW 51.32.190(3) or by the
department pursuant to RCW 51.32.210, the recipient thereof shall repay such
benefits and recoupment may be made from any future payments due to the
recipient on any claim with the state fund or self-insurer, as the case may
be. The director, under rules adopted in accordance with the procedures
provided in the administrative procedure act, chapter 34.05 RCW, may exercise
discretion to waive, in whole or in part, the amount of any such payments where
the recovery would be against equity and good conscience.
(((3)))
(4) Whenever any payment of benefits under this title has been made
pursuant to an adjudication by the department or by order of the board or any
court and timely appeal therefrom has been made where the final decision is
that any such payment was made pursuant to an erroneous adjudication, the
recipient thereof shall repay it and recoupment may be made from any future
payments due to the recipient on any claim with the state fund or self-insurer,
as the case may be. The director, pursuant to rules adopted in accordance with
the procedures provided in the administrative procedure act, chapter 34.05 RCW,
may exercise his discretion to waive, in whole or in part, the amount of any
such payments where the recovery would be against equity and good conscience.
(((4)))
(5) Whenever any payment of benefits under this title has been induced
by fraud the recipient thereof shall repay any such payment together with a
penalty of fifty percent of the total of any such payments and the amount of
such total sum may be recouped from any future payments due to the recipient on
any claim with the state fund or self-insurer against whom the fraud was
committed, as the case may be, and the amount of such penalty shall be placed
in the supplemental pension fund. Such repayment or recoupment must be
demanded or ordered within one year of the discovery of the fraud.
(((5)))
(6) The worker, beneficiary, or other person affected thereby shall have
the right to contest an order assessing an overpayment pursuant to this section
in the same manner and to the same extent as provided under RCW 51.52.050 and
51.52.060. In the event such an order becomes final under chapter 51.52 RCW
and notwithstanding the provisions of subsections (1) through (((4))) (5)
of this section, the director, director's designee, or self-insurer may file
with the clerk in any county within the state a warrant in the amount of the
sum representing the unpaid overpayment and/or penalty plus interest accruing
from the date the order became final. The clerk of the county in which the
warrant is filed shall immediately designate a superior court cause number for such
warrant and the clerk shall cause to be entered in the judgment docket under
the superior court cause number assigned to the warrant, the name of the
worker, beneficiary, or other person mentioned in the warrant, the amount of
the unpaid overpayment and/or penalty plus interest accrued, and the date the
warrant was filed. The amount of the warrant as docketed shall become a lien
upon the title to and interest in all real and personal property of the worker,
beneficiary, or other person against whom the warrant is issued, the same as a
judgment in a civil case docketed in the office of such clerk. The sheriff
shall then proceed in the same manner and with like effect as prescribed by law
with respect to execution or other process issued against rights or property
upon judgment in the superior court. Such warrant so docketed shall be
sufficient to support the issuance of writs of garnishment in favor of the
department or self-insurer in the manner provided by law in the case of
judgment, wholly or partially unsatisfied. The clerk of the court shall be
entitled to a filing fee of five dollars, which shall be added to the amount of
the warrant. A copy of such warrant shall be mailed to the worker,
beneficiary, or other person within three days of filing with the clerk.
The
director, director's designee, or self-insurer may issue to any person, firm,
corporation, municipal corporation, political subdivision of the state, public
corporation, or agency of the state, a notice to withhold and deliver property
of any kind if there is reason to believe that there is in the possession of
such person, firm, corporation, municipal corporation, political subdivision of
the state, public corporation, or agency of the state, property that is due,
owing, or belonging to any worker, beneficiary, or other person upon whom a
warrant has been served for payments due the department or self-insurer. The
notice and order to withhold and deliver shall be served by certified mail
accompanied by an affidavit of service by mailing or served by the sheriff of
the county, or by the sheriff's deputy, or by any authorized representative of
the director, director's designee, or self-insurer. Any person, firm,
corporation, municipal corporation, political subdivision of the state, public
corporation, or agency of the state upon whom service has been made shall
answer the notice within twenty days exclusive of the day of service, under
oath and in writing, and shall make true answers to the matters inquired or in
the notice and order to withhold and deliver. In the event there is in the
possession of the party named and served with such notice and order, any
property that may be subject to the claim of the department or self-insurer,
such property shall be delivered forthwith to the director, the director's
authorized representative, or self-insurer upon demand. If the party served
and named in the notice and order fails to answer the notice and order within
the time prescribed in this section, the court may, after the time to answer
such order has expired, render judgment by default against the party named in
the notice for the full amount, plus costs, claimed by the director, director's
designee, or self-insurer in the notice. In the event that a notice to
withhold and deliver is served upon an employer and the property found to be
subject thereto is wages, the employer may assert in the answer all exemptions
provided for by chapter 6.27 RCW to which the wage earner may be entitled.
This
subsection shall only apply to orders assessing an overpayment which are issued
on or after July 28, 1991: PROVIDED, That this subsection shall apply
retroactively to all orders assessing an overpayment resulting from fraud,
civil or criminal.
(((6)))
(7) Orders assessing an overpayment which are issued on or after July
28, 1991, shall include a conspicuous notice of the collection methods
available to the department or self-insurer.
