GQ Corner
Q. We accepted the compensability of a death claim and have been paying death benefits to the child of the decedent as he attends college. The claimant beneficiary took a break from school and was not enrolled last semester. Furthermore, I have been unable to reach him and he has not provided me with a schedule or indeed any confirmation that he re-enrolled this semester. Under these circumstances, may I terminate his death benefits?
A. Unfortunately, you are not permitted to unilaterally terminate death benefits under these circumstances. You will need to seek dispute resolution by requesting a BRC to address whether the child continues to be entitled to death benefits. At present, you do not have any evidence that this child has ceased, for the second consecutive semester (excluding summer semesters), to be enrolled as a full-time student.”
Rule 132.8(c) authorizes the carrier to request proof that a child eligible for benefits is enrolled as a full-time student in an accredited educational institution and indeed requires the child to furnish such proof within 20 days of receiving such request. However, the Rules provide relatively little in terms of enforcement. Specifically, Rule 132.8(g) simply provides that a person who knowingly or intentionally continues to receive benefits as an eligible child or on behalf of an eligible child when the person is no longer entitled to receive them, or who knowingly fails to disclose the facts of ineligibility to the carrier or the commission, may be assessed administrative penalties under §10.04 of the Act. Therefore, in addition to requesting a BRC, you may notify the claimant that he is subject to administrative violation and even refer him to DWC on that basis. That may prompt a reply to your request. If the child confirms that he did not enroll for the second semester, you may then change the death benefit distribution to exclude this child.
Q. The claimant worked for two non-claim employers shortly prior to the claim injury, but was no longer employed by either one on the date of the claim injury. She asserts that her average weekly wage should reflect the pre-injury wages earned from the non-claim employers. Is that correct?
A. No. Rule 128.1(h) specifies that the claimant must be employed with the non-claim employer on the date of the claim injury in order to include the wages earned therefrom on a DWC-3ME multiple employment wage statement for purposes of calculating the average weekly wage.
Q. The claimant returned to modified duty work earning only partial wages as a result of restrictions attributable to the compensable injury. However, she is earning close to the entire average weekly wage such that 70% of her lost wages is only $30 per week. Under these circumstances, does the carrier simply owe $70 per week or the minimum TIBS rate of $134 per week applicable to her claim?
A. It depends on the average weekly wage and post-injury earnings. Rule 129.3(g)(2) provides that the carrier shall generally (subject to the applicable minimum wage provisions specified in subpart (f) of that Rule) calculate weekly TIBS at 70% of lost wages, but should apply the minimum TIBS rate when the amount yielded by the above method is less than the minimum TIBS rate when added to post-injury earnings. Thus, if the weekly TIBS rate calculated by conventional standards plus the post-injury earnings is less than the minimum TIBS rate, you owe the minimum TIBS rate. If it is more than the minimum TIBS rate, you simply calculate the TIBS rate by conventional standards and do not apply the minimum TIBS rate.
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