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Wassenberg v. United States Railroad Retirement Board

January 25, 1996

LAWRENCE R. WASSENBERG,

PETITIONER-APPELLANT,

v.

THE UNITED STATES RAILROAD RETIREMENT BOARD,

RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division.

Nos. 93 C 158 and 93 C 198--John D. Tinder, Judge.

Before BAUER, D. WOOD, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Appeal from a Decision of the United States Railroad Retirement Board

ARGUED DECEMBER 4, 1995

DECIDED JANUARY 25, 1996

In 1991, when he was in his mid-thirties, Lawrence Wassenberg was found to be the disabled "child" of an insured worker under the Railroad Retirement Act. Based on the finding, Wassenberg was awarded an annuity, retroactive to December 1, 1989. Although Wassenberg is glad he won an award, he is unhappy with the Railroad Retirement Board's order not to make it retroactive to either 1975 or 1977.

Mr. Wassenberg was born in 1956. In 1974, close to his 18th birthday, he filed an application for a disabled child's annuity under the Railroad Retirement Act, 45 U.S.C. sec. 231 et seq. The application alleged that Wassenberg was disabled due to a "loss of hearing and equilibrium, allergies, and chronic ear and throat infections." The application was denied on November 19, 1974, and no appeal was taken.

Two and one-half years later, on April 12, 1977, Mr. Wassenberg filed a second application for benefits. The second one was labeled an "APPLICATION FOR CHILD'S ANNUITY--FULL-TIME STUDENT." As a result of this application, he received student benefits in the amount of $300.30 per month from June 1, 1977, until December 1, 1978, when the benefits ceased because Mr. Wassenberg was 22 years old. The benefits under the second application were paid while Wassenberg attended a business college in Kansas as a full-time student. No other applications were filed for benefits of any sort over the next 12 years.

On June 15, 1990, Wassenberg filed a third application for benefits. This application, like the first one in 1974, was for a disabled child's annuity. The third application presented a problem because Wassenberg was now 33 years old, and in order to prevail he had to demonstrate that he was disabled when he was a youngster. The 1990 application alleged that Wassenberg was disabled due to "adult attention deficit disorder; disabling anxiety; mental illness diagnosed at age 5; inability to exercise uniform sound judgment and attend to task and duties, and complete dependence on medications for daily living." The application was denied on February 8, 1991, but the decision was reversed upon reconsideration when Wassenberg presented new evidence supporting his contention that he was disabled since 1975 when he was 19 years old. Ultimately, benefits were awarded retroactive to December 1, 1989, which was the first day of the sixth month prior to the filing date of the 1990 application. Pursuant to 45 U.S.C. sec. 231d(a)(iii), that was the earliest date on which benefits could begin based on the 1990 application.

Unhappy with the determination that the annuity began on December 1, 1989, even though he was found to have been disabled much earlier, Wassenberg filed an agency appeal, contending that he should receive benefits "back to Jan. 1, 1975, less the school money I received." Because the beginning date of an annuity is tied to an application date, Wassenberg had to tie his retroactivity claim to an earlier active application. Analyzing Mr. Wassenberg's situation, it was determined on appeal that his January 1974 application for a disability benefit was closed and final. It could not support, therefore, payments in 1991 retroactive to 1974.

Again Wassenberg appealed, this time to the Railroad Retirement Board. A majority of the Board (two members) affirmed and adopted the decision of the hearing officer. A third member dissented and raised, for the first time, the issue presented to this court. The issue involves the effect of the 1977 application for student benefits on the present claim for disability benefits. The dissenting board member said, "[T]he appellant's April 12, 1977 application for student benefits can and should also be used as a protected filing date for his disabled child application."

Sensing new hope, Mr. Wassenberg abandoned his claim based on the 1974 application and argues before us that, in fact, his benefits should begin to run from a date 6 months prior to the filing of the 1977 application, less the benefits received under his student application.

In support of his claim that the 1977 application controls, Mr. Wassenberg relies on 45 U.S.C. sec. 231d(b), which provides that an application filed with the Board "shall, unless the applicant specifies otherwise, be deemed to be an application for any benefit to which such applicant may be entitled . . . ." The argument is that the application for student benefits serves as an application for "any benefit" to which Mr. Wassenberg may be entitled. Because the Board now says that he was disabled at the time of the 1977 application, and because other benefits were not explicitly denied in 1978, the application, Wassenberg argues, remains ...


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