Petition — Kananen v. Califano

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IN THE

SUPREME COURT.

OF THE UNITED STATES

OCTOBER TERM - 1977

No. 77-1118

R. A. Kananen Soc. Sec. #021-24-6052

Petitioner - Appellant

Vv

Secretary of H.E. W.

David Matthews

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The petitioner R. A. Kananen prays that a Writ of

Certiorari issue to review the opinion and judgement of

the United States Court of Appeals for the Eighth Cir-

cuit affirming a District Court. This judgement upheld

the Secretary’s decision to withhold $9,000.00 under

Section 224 of the Social Security Act. There was no

hearing on the merits. The petitioner maintains the

sanction is based on clearly unconstitutional grounds

and in fact constitutes gross and invidious discrimi-

nation.

OPINIONS BELOW

The original judgement in the United States District

Court, St. Paul, Minn. it appears herein as Appendix A

and was not reported.

OPINION OF THE EIGHTH

CIRCUIT COURT OF APPEALS OF THE

UNITED STATES

The opinion of the Eighth Circuit Court of Appeals

herein as Appendix B. The United States Court of

Appeals affirmed the District Court.

JURISDICTION

(i) The opinion of the United States Court of Appeals for

the Eighth Circuit was initially entered May 25, 1977.

(ii) The Jurisdiction of this Court is invoked under 28

U.S.C. 1254 and 28 U.S.C. 2101.

QUESTIONS PRESENTED FOR REVIEW

1. Is the actions denying appellant a fair hearing under

established procedure just?

Does the action of the District Court and of the Secretary

in completely ignoring appellants Amended Complaint

pursuant to Rule 1S(a) under the Federal Rules of Civil

Procedure, constitutional under the Sth and the 14th

Amendments.

2. Is this judgement constitutional in light of the 5th and

the 14th Amendment?

Under the facts is such a judgement for applying the so-

called offset provision of Section 224 of the Social Secu-

rity Act valid where there is two completely separate and

distinct disabling injuries.

3. Is this judgement constitutional in light of the 5th and

the 14th Amendments?

Is the actions of the Courts below and the Secretary in

assessing overwhelming credance to evidence the appell-

ant has shown to be tainted, and completely disregarding

appellants evidence just.

2. Is this judgement constitutional in light of the 5th and

the 14th Amendments?

The actions of the Secretary invoking the so-called offset

provision in this case, when the monies involved in the

Workmen’s Compensation Case was supplied by a pri-

vate insurance carrier.

CONSTITUTIONAL PROVISIONS AND

COURT RULES INVOLVED

DUE PROCESS - AMENDMENT V

1. Article V of the Amendment of the Constitution of

the United States provides:

“.. . nor be deprived of life, liberty, or property without

due process of law; nor shall private property be taken

for public use, without just compensation.”

2. Article XIV of the Amendment of the Constitution of

the United States provides:

‘“... nor shall any State deprive any person of life, liberty

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

3. Rule 1a) of Civil Procedure provides:

“. . . @ party may amend his pleading once as a matter

of course at any time before a responsive pleading is

served.”

STATEMENT OF THE CASE

ABBREVIATIONS

“T” shall designate transcript of Bureau of Hearings

and Appeal H.E.W. herein.

“AAC” shall designate Appellant’s Amended Com-

plaint - District Court.

““AB”’ shall designate Appellant’s brief for the Eighth

Circuit.

There is no transcript from the Court’s below since there

never has been a hearing on the merits and all evidentual

facts have been submitted by affidavit. The judgement

upholding the Secretary’s decision to withhold $9,000.00

under the so-called offset provision, Section 224 of the

Social Security Act, is clearly a capricious and uncon-

stitutional interpretation of that act and clearly is in

vidious discrimination.

FACTS SURROUNDING WORKMEN‘S

COMPENSATION CASE

Petitioner sustained spinal injuries November 1966, and

January 1967 which resulted in a findings and Award

page 129 through 134 inclusively in ‘“T’’. In July a Com-

promise and Release was entered into, see page 135 “‘T”’.

The discrepancies in the aforementioned evidentuary

material supplied to the Social Security Administration

belatedly by Liberty Mutual Insurance differs substan-

tially with the copies contained in “AAC’’, secured by

the Appellant from the Workmen’s Compensation

Appeal Board, Long Beach, California. These discrep-

ancies which taint the evidence that the Secretary and

the lower Courts wholeheartedly embraced in rendering

their unfavorable decisions are fully covered in “AAC”

and “AB”. Workmen’s Compensation case was closed

August 1968.

ORIGIN OF WORKMEN’S COMPENSATION

MONIES

The monies in question were paid by a private insurance

carrier.

FACTS SURROUNDING THE SOCIAL

SECURITY CASE

In January 1969, Mr. Kananen applied for Social Secu-

rity disability benefits. He was promptly denied. In 1973,

Mr. Kananen was forced by a Veteran’s Administration

Counselor, to again apply for Social Security disability

benefits, and welfare benefits, over his strenuous ob-

jections. Social Security treated the 1973 application as a

re-application of the January 1969 application. In Janu-

ary 1974, a hearing was held in Bangor, Maine, under

an Administrative Law Judge. He rendered his decision

February 1974, see page 100 & 101 in “T”’.

The Administrative Law Judge found that Mr. Kananen

was eligible for Social Security Disability benefits due to

a mental condition. This decision was reaffirmed in

January 1976, by Administrative Law Judge Devlin, see

page 7 through 17 inclusively in ““T’’. However, in reach-

ing his unfavorable decision as to the imposition of the

offset provision, the Administrative Law Judge disregard-

ed Mr. Kananen’s arguments of tainted evidence see

page 139 through 141, inclusively in ‘“‘T’’, also 145

through 151 in “T”’.

Authority to pursue in District Court:

42 U.S.C. 405 (g) Sect. 422.210 of the S.S.A. and Regula-

tion #20 (C.F.R. 422.210)

Authority to pursue in the Eighth Circuit Court of

Appeals:

28 U.S.C. 1291

REASONS FOR ALLOWANCE OF

THE WRIT

There have been many cases cited by both appellant and

appellee in support of their contentions in this case.

However, in the question of two separate and distinct

disabling injuries, neither the appellant nor the appellee

has been able to ascertain existence of a case previous to

the instant case in the Federal Judicial System. However,

in Belcher vs. Richardson (404 U.S. 78, 92 S CT. 254 L

Ed. 231) in a dissenting opinion Justice Douglas states

on page 86 (4) private insurance benefits cannot be off-

set. In the instant case the appellee is receiving Title II

benefits for mental condition that he had not previously

been compensated for. However, he received Workmen’s

Compensation benefits for spinal injuries that were not

compensable under Title II of the Social Security Act as

witnessed by the prompt denial of benefits in 1969 by the

Social Security Administration.

CONCLUSION

For the foregoing reasons the lower Court judgement

should either be summarily reversed or a Writ of Cer-

tiorari should be granted.

Respectfully submitted

R. A. Kananen

Attorney pro-se

Appendix A

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA |

THIRD DIVISION

RICHARD A. KANANEN

Plaintiff

ie Civil

No. 3-76-213 Criminal

DAVID MATTHEWS, SECRETARY OF

HEALTH, EDUCATION & WELFARE, )

Defendant

You are hereby notified that in the above entitled case on the

21st day of December, 1976, filed and entered Order Granting

Defendant’s Motion For Summary Judgment (Devitt-J 12-21-76)

that the decision of the Administrative Law Judge is affirmed.

HARRY A. SIEBEN, Clerk

BY Bernadine L. Brown

Deputy Clerk

TO:

Richard A. Kananen

Rte. 2

Browerville, Minnesota 56438

Robert G. Renner, U.S. Attorney

Meil I. Dickstein, A.U.S.D.A.

596 U.S. Court House

110 So. 4th St.

Minneapolis, Minnesota 55401

Appendix B

United States Court of Appeals

_ FOR THE EIGHTH CIRCUIT

No. 77-1118

Richard A. Kananen,

Appellant, Appeal from the United

v. States District Court

; for the District of

David Matthews, Secretary Mi -

of Health, Education, and

Welfare, Appellee.

Submitted: May 20, 1977

Filed: May 25, 1977

Before LAY, BRIGHT, and STEPHENSON, Circuit Judges.

PER CURIAM.

Richard A. Kananen brought this action under 42 U.S.C. S 405 (g)

to review a final decision of the Secretary of Health, Education and

Welfare reducing the amount of his disability insurance benefits

through the application of the statutory workmen’s compensation

offset, 42 U.S.C. S 424a. The district court found that the reduction

was proper and entered summary judgment for the Secretary. We

affirm.

Kananen was awarded workmen’s compensation for a period

beginning October 28, 1967, due to a disability caused by back in-

juries sustained in 1966 and 1967. In 1974, Kananen was awarded

disability insurance benefits under SS 216(i) and 223 of the Social

Security Act, 42 U.S.C. SS 416(i) and 423, for a period of disability

commencing April 2, 1968. The cause of the disability was mental

illness. However, Kananen was notified that pursuant to S 224 of

the Social Security Act, 42 U.S.C. S 424a, his disability benefits for

the period of time he was also receiving workmen’s compensation

benefits would be withheld.

Kananen requested a hearing on that determination. At the hear-

ing, held on October 15, 1975, the Department of Health, Education

_ and Welfare introduced evidence that on June 28, 1968, the Work-

men’s Compensation Appeals Board of the State of California

awarded Kananen temporary disability indemnity of $61.75 per week

beginning October 28, 1967 through May 23, 1968, and thereafter

for the duration of the temporary disability. It also awarded payment

for such further medical care and treatment as Kananen required as

a result of his back injuries. Pursuant to this award, Kananen re-

ceived $61.75 per week for the period from October 28, 1967 to July

26, 1968, an amount equal to $2,408.25, and $1,445.20 for medical

expenses. On or about July 30, 1968, he entered into a settlement

with the compensation insurance carrier, Liberty Mutual Insurance

Company, for $15,000. Of the $15,000 settlement, $1,000 was paid to

his attorney and the remainder was paid to him. Upon inquiry by

the administrative law judge, Liberty Mutual Insurance Company

represented that, although the details of the settlement were not

made a matter of record, 29.4 percent, or $4,116, of the $14,000 paid

to Kananen represented settlement of its liability for future medical

expenses; the balance of $9,884 represented settlement of its liability

for weekly compensation at the rate of $61.75 for 26 weeks and

$52.50 for 157.6857 weeks for the period beginning July 27, 1968.

Kananen contested Liberty Mutual’s representations. He stated

that he received only $1,358.50 in weekly indemnity payments prior

to the settlement, rather than $2,408.25. He further alleged that the

lump sum settlement was not a substitute for periodic payments,

and therefore his social security benefits should not be offset against

that amount. Finally, he contended that S 424a only provides for an

offset where the workmen’s compensation payments are made for

the same disability as the Social Security benefits.

The administrative law judge found that:

1) $9,884 of the $14,000 lump sum payment was a sub-

stitute for future periodic payments and an offset was there-

fore proper under the provisions of S 424a(b);1

2) Kananen’s contenton that he did not receive $1,175 of

the $2,408.25 allegedly paid by Liberty Mutual for the period

from October 28, 1967 to July 26, 1968, even if true, was

irrelevant to his claim for Social Security benefits because the

offset in question, imposed beginning February 1969, was not

imposed against those payments; and

3) Section 424a does not require that the workmen’s com-

pensation and disability insurance benefits be based on the

same impairment in order for the offset to apply.

Presumably in determining the number of months to apply the off-

set, the Secretary concluded that the $9,884 payment represented

183.6857 weeks of disability payments, as Liberty Mutual Insurance

Company represented to the administrative law judge.

The district court found that substantial evidence existed in the

record to support the findings of the administrative law judge and

that the applicable law had been accurately interpreted. We agree.

Kananen’s major contention on appeal is that the offset provision

does not apply where disability benefits under the Social Security

Act and workmen’s compensation benefits are paid for different

disabilities. We find no merit to this contention.

Section 424a provides in pertinent part as follows:

(a) If for any month prior to the month in which an individual

attains the age of 62 -

(1) such individual is entitled to benefits under section 423

of this title, and

(2) such individual is entitled for such month, under a work-

men’s compensation law or plan of the United States or a

State, to periodic benefits for a total or partial disability

(whether or not permanent), and the Secretary has, in a prior

month, received notice of such entitlement for such month,

the total of his benefits under section 423 of this title for such

month * * * based on his wages and self-employment income

shall be reduced * * *.

In construing S 424a, we are governed by the principles we set

forth in United States v. Kelly, 519 F.2d 251, 256 (8th Cir. 1975):

In the early decision of United States v. Standard Brewery,

251 U.S. 210, 40 S.Ct. 139, 64 L.Ed. 229 (1920), the Court ob-

served:

Nothing is better settled than that in the construction of a

law its meaning must first be sought in the language em-

ployed. If that be plain, it is the duty of the courts to enforce

the law as written, provided it be within the constitutional

authority of the legislative body which passed it.

Id. at 217, 40 S.Ct. at 140.

If that wording is plain and simple and straightforward, the words

employed must be accorded their normal meaning. As the Court

said in Helvering v. Hammel, 311 U.S. 504, 61 S.Ct. 368, 85 L.Ed.

303 (1941):

True, courts in the interpretation of a statute have some

scope for adopting a restricted rather than a literal or usual

meaning of its words where acceptance of that meaning

would lead to absurd results, United States v. Katz, 271 U.S.

34, 362 (46 S.Ct. 513, 516, 70 L.Ed. 986), or would thwart

the obvious purpose of the statute, Haggar Co.. v. Helvering,

308 U.S. 389 (60 S.Ct. 337, 84 L.Ed. 340). But courts are not

free to reject that meaning where no such consequences

follow and where, as here, it appears to be consonant with

the purposes of the Act as declared by Congress and plainly

disclosed by its structure.

Id. at 510-511, 61 S.Ct. at 371. (Emphasis added).

In applying these principles, we conclude that there is no basis

either in the wording of S 424a or in that section’s legislative history

to support the interpretation Kananen urges. Section 424a provides

that where a person is entitled to benefits under 42 U.S.C. S 423

and that person is entitled to workmen’s compensation benefits for

a disability, an offset shall be applied. No portion of S 424a limits

its application to payments for a disability caused by the same

physical or mental condition. Instead S 424a refers back to S 423,

which defines disability as the inability to engage in substantial

gainful activity. 42 U.S.C. S 423(d) (1). Under this definition, it is

the end result, not the cause, which governs. Combs v. Gardner, 382

F.2d 949 (6th Cir. 1967). Thus, whenever a person is unable to en-

gage in substantial gainful activity, for whatever reason, and is there-

fore entitled to benefits under S 423 of the act, and he is also entitled

to workmen’s compensation, the offset provision of S 424a is appli-

cable. Furthermore, it is clear from the legislative history that the

purpose of S 424a is to prevent the payment of excessive combined

benefits. See S.Rep. 404, 89th Cong., ist Sess., 1965 U.S. Code

Cong. & Admin. News 1943 at 2040. The result Kananen urges

would be contrary to this intent.

Kananen also contends that the Secretary erred in determining

pursuant to S 424a(b)2 that the lump sum payment of workmen’s

compensation benefits was a commutation of, or substitute for,

periodic payments and that the offset was therefore applicable. In

support of his contention, Kananen alleges that, contrary to Liberty

Mutual’s representations, he received no weekly temporary in-

demnity payments after March 1968, and was unaware that such

payments were legally due him. We have reviewed the record and

agree with the district court that there is substantial evidence to sup-

port the Secretary’s determination. The record leaves no doubt that

the lump sum payment was indeed a commutation of, or

42 U.S.C. S 424a(b) provides:

(b) If any periodic benefit under a workmen’s compen-

sation law or plan is payable on other than a monthly basis

(excluding a benefit payable as a lump sum except to the

extent that it is a commutation of, or a substitute for,

periodic payments), the reduction under substitute for,

periodic payments.

Finally, Kananen contends that the offset provisions of S 424a

constitute a denial of due process and equal protection. Similar

arguments have been consistently found to be without merit. See

Richardson v. Belcher, 404 U.S. 78 (1971); Smith v. Ethyl Corp., 417

F. Supp. 669 (S.D. Tex. 1976); Smith v. Weinberger, 381 F. Supp.

1307 (E.D. Mich. 1974), aff'd, 513 F.2d 632 (6th Cir. 1975); Bartley

v. Finch, 311 F. Supp. 876 (E.D. Ky. 1970) (three-judge court), affd,

404 U.S. 980 (1971).

Judgment affirmed.

A true copy.

Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

n.2 continued:

sete cotton shell he mando ot eat tiene cntiets ent ta-emh

amounts as the Secretary finds will approximate as nearly

as practicable the reduction prescribed by subsection (a) of

this section.

In his brief on appeal, Kananen argues that the district court

erred in granting summary judgment because of the existence of a

genuine issue of material fact, i.e., whether Mutual Liberty paid him

periodic payments for the period from October 28, 1967 to July 26,

1968, as it claimed, or whether such periodic payments stopped after

March 1968, as he claims. The factual dispute is not material to this

controversy. Even if true, it could not affect the validity of the

Secretary's determination that the lump sum payment was a com-

mutation of, or substitute for, periodic payments. Furthermore, it

did not affect the amount of the offset, since the offset was imposed

only against payments considered to be owed Kananen under the

terms of the settlement in 1969.

Therefore, the summary judgment was properly granted.

Kananen’s remedy for the alleged nonpayment is against the in-

surance company.