GQ Corner

Q. The beneficiary has been enrolled in school and continues to receive death benefits, but she said they currently do not have their Fall 2021 classes available. How does that affect her Summer benefits if she is not scheduled?  Her lawyer had told her to enroll for Fall 2021 so she would not be affected negatively on her death benefits.

A. Once a beneficiary reaches 18 years of age, for her  to continue to receive death benefits, she must  be enrolled as a full-time student in an accredited educational institution.  Her eligibility would end once she turns 25 or once she ceases for the second consecutive semester (excluding Summer sessions) to be enrolled as a full-time student.  If she is currently enrolled for the Spring 2021 semester, but she does not enroll for any additional semesters, then the Fall 2021 semester would be the first semester and the Spring 2022 semester would be the second consecutive semester.  Following the Spring 2022 semester, she would not be eligible for any more death benefits; however, if she misses one but not both of  those semesters, then she continues to be eligible until she misses two consecutive semesters.  One never includes the Summer semesters in the calculation of the two consecutive semester concept. 

Q. This claimant was at MMI per the Designated Doctor on 7/17/2019 with a 6 % IR. She was working, but then had some discomfort this year. She had some hardware removed from her ankle and another impairment rating was done on behalf of the treating doctor, which provides a different MMI and a higher impairment rating. Do I pay an additional 7% per the impairment rating? If I accept the new MMI date and impairment rating, then might I also owe TIBs for the time lost due to surgery?

A. Assuming that the carrier has already paid the TIBs and IIBs based on the DD’s MMI date of 7/17/19 with the 6% impairment rating, the carrier CURRENTLY is not required to pay any additional income benefits.  The DD’s opinion carries presumptive weight.  The carrier should pay per the DD, which it has done.  Moreover, you need to determine if you have a 90-day finality defense, i.e., do you have verifiable proof of the date the claimant received the DD’s DWC-69 and, if so, did the claimant file a DWC-45 disputing it more than 90 days following his receipt of the DD’s DWC-69 ?   If you do not have a finality defense and if you accept the new MMI date with the higher impairment, then you will owe additional IIBs and you will probably owe some additional TIBs based on the claimant having disability following her surgery.  Since the DD has already provided an opinion on MMI/IR, DWC’s DD department will not approve a DWC-32 on MMI/IR.  The point is that unless the carrier will agree to the claimant not being at MMI, DWC will not send the claimant back to the DD.  A number of Ombudsmen and BROs will try to convince the carrier to reach an agreement (DWC-24) that the claimant has not reached MMI.  Do not sign the agreement.  Instead, pursue a Presiding Officer Directive (POD) to get the claimant back to the DD based on the fact that the claimant has surgery subsequent to the DD’s exam and/or pursue a post DDRME.