GQ Corner
Q: The insured is paying the Claimant his pre-injury wages at the same time that the Carrier is issuing TIBs. Once the Carrier discovers this, can the Carrier recover the overpayment? How does this work?
A: Yes, the Carrier’s overpayment would be subject to recoupment under Rule 126.16. This rule provides the very detailed procedure, as set out below. Basically, you are required to send a notice of the intent to reduce benefits with some specific information as to the basis of the reduction and the availability of dispute resolution. You may may then begin recoupment, either a 25% or 10% reduction, with the second income benefit period after the notice is sent.
§126.16. Procedures for Recouping Overpayments of Income Benefits.
(a) This section applies to insurance carrier overpayment of income benefits. It does not apply to:
(1) insurance carrier overpayment of death, burial, or medical benefits;
(2) redesignation of income benefits; or
(3) repayments pursuant to Labor Code §415.008.
DWC Rules (1/6/2013) 28 TAC Chapter 126 17 of 18
(b) If an insurance carrier determines that it has overpaid income benefits to an injured employee, the insurance carrier may recoup the overpayment from future income benefit payments as follows:
(1) The insurance carrier must notify the injured employee in writing that it will begin withholding benefits to recoup an overpayment. The notice must be in plain language and in English or Spanish, as appropriate. The notice must also include the reason for the overpayment; the amount of the overpayment to be recouped from future income benefit payments; the date recoupment will begin; and relevant documentation that supports the insurance carrier’s determination of an overpayment, such as a wage statement or a supplemental report of injury. The notice must also advise the injured employee that if the injured employee disagrees that there has been an overpayment, the injured employee may request dispute resolution through the dispute resolution processes outlined in Chapters 140 – 144 and 147 of this title (relating to Dispute Resolution ), including expedited dispute resolution. The insurance carrier may not begin recoupment of the overpayment earlier than the second income benefit payment made after the written notice has been sent to the injured employee.
(2) If the injured employee’s income benefits are not concurrently being reduced to pay approved attorney’s fees or to recoup a division approved advance, the insurance carrier may recoup the overpayment under this subsection in an amount not to exceed 25% of the income benefit payment to which the injured employee is entitled, except as provided by subsection (c) of this section.
(3) If the injured employee’s income benefits are concurrently being reduced to pay approved attorney’s fees or to recoup a division approved advance, the insurance carrier may recoup the overpayment under this subsection in an amount not to exceed 10% of the income benefit payment to which the injured employee is entitled, except as provided by subsection (c) of this section.
(c) If the insurance carrier wishes to recoup the overpayment in an amount greater than that permitted by subsection (b) of this section, the insurance carrier must attempt to enter into a written agreement with the injured employee and, if unable to do so, request dispute resolution through the dispute resolution processes outlined in Chapters 140 – 144 and 147 of this title. If the injured employee wishes to provide for recoupment of the overpayment in an amount less than the percentage chosen by the insurance carrier, the injured employee must attempt to enter into a written agreement with the insurance carrier and, if unable to do so, request dispute resolution through the dispute resolution processes outlined in Chapters 140 – 144 and 147 of this title.
(d) In determining whether to approve an increase or decrease in the recoupment rate, the division must consider the cause of the overpayment and minimize the financial hardship that may reasonably be created for the injured employee.
(e) The insurance carrier must provide notice to the injured employee and the division of any change in the payment of an injured employee’s income benefits in accordance with the requirements of §124.2 of this title (relating to Carrier Reporting and Notification Requirements). The insurance carrier’s notice to the injured employee must identify the amount that was overpaid.
(f) This section does not create an entitlement for an insurance carrier to seek reimbursement from the Subsequent Injury Fund except as provided by Labor Code §§403.006, 408.0041, 410.209, and applicable division rules.
(g) If an injured employee does not agree that the injured employee has received an overpayment of income benefits, the injured employee may request dispute resolution through the dispute resolution processes outlined in Chapters 140 – 144 and 147 of this title, including expedited dispute resolution.
(h) This section does not affect the division’s authority to identify and take action on overpayments on its own motion.
Q: Claimant has been working light duty, with a 10-pound lifting restriction for the last month. Recently, Claimant called the adjuster to inform her that he had been taken completely off of work by his treating doctor 5 days ago. Claimant presents the DWC-73, which is actually another light duty restriction, lowering his lifting limit to 5 pounds. Claimant knew light duty was available because he had in fact been working light duty. Can I dispute disability on these facts.
A: Disability issues are issues of a fact with a general standard “Is the injured employee unable to obtain or retain employment at the preinjury average weekly wage as a result of the compensable injury?” If the light duty work claimant performed did not exceed a 5-pound lifting limit, there is a reasonable basis to deny the disability. Claimant has voluntarily removed himself from the workplace when work within his ability was reasonable available. His failure to obtain and retain employment at pre-injury wages is not a result of the compensable injury. If, however, the work he performed exceeded the 5-pound lifting limit, Claimant will have a good argument that his condition has changed and he is no longer able to work at that position. If those are your facts, we would recommend that you encourage the employer to extend a written bona fide offer of light duty employment pursuant to Rule 129.6 based on the new limitations.
FOLIO
