GQ Corner

Q: Claimant is working light duty on her normal M – F schedule from 8AM to 4:30PM. She is scheduling her physical therapy visits and her follow up appointments with her treating doctor during the work day, which causes a reduction in her wages. Is she entitled to partial TIBs or can I dispute?

A: If she is losing time from work in order to get treatment or PT for the compensable injury, then she is disabled under the Act and is entitled to partial TIBs for that lost time. If she could otherwise schedule the treatment after work hours, you could conceivably request a BRC on the issue of disability and argue that she is not disabled as treatment could be done at a time when it doesn’t conflict with work.  However, you would still need to pay partial TIBs in the interim, and frankly that is not an easy argument. I think a better use of your time and resources would be to request a DD on MMI and IR, and if she gets an MMI certification from the DD, that would put an end to TIBs anyway.

Q: We have  a new fatality on which we are attempting to obtain the autopsy report; however, we were advised it will not be ready within our 60 day timeframe to file a dispute. We  have no reason to believe the autopsy report will include any positives for drug/alcohol and all other indications are it will be a compensable fatality file.

My questions is: should we file a dispute within our 60 day time frame which states we are “reserving” the intoxication defense pending receipt of the autopsy report or wait until we receive the autopsy report and then file a dispute outside the 60 days if warranted and hope the Division will agree it is valid under the “newly discoverable evidence” rule?

A: You should not file a dispute to reserve any defense, intoxication or otherwise, if you have no basis for that defense.  So, if there is no proof received prior to the 60 day deadline that the deceased was intoxicated under the Act, you have no basis to dispute and should not file a PLN-1. You should make every attempt to get that information prior to the 60-day deadline and fully document all such attempts. That way, if  evidence of intoxication does become available after the 60-day deadline, you will have a better chance at raising that defense late by showing good cause.

Q: Claimant initially received a 5% impairment rating from his treating doctor, which he paid in full. However, that rating was overturned via a CCH D&O and the ALJ adopted a 9% IR. We are currently paying the 9%, but it has come to light we have an overpayment of attorney’s fees. Can we recoup the overpayment of the attorney’s fees from the IIBs?

A: No, you cannot recoup an overpayment of attorney’s fees from IIBs owed to the claimant.