GQ Corner
Q. We are paying TIBs as the employer can no longer accommodate Claimant’s restrictions. However, Claimant is paying for a supplemental disability plan that would pay her portion of her salary if she is unable to work. She wondered if she needed to report that to us as post-injury earnings (PIE). Is that something we could treat as PIE and reduce TIBs accordingly?
A. If the Claimant is paying the premiums on a disability policy, those benefits do not count as post-injury earnings and you may not take a credit against her TIBs. Note that the answer would be different if this was an employer-sponsored policy and the employer was paying the premiums. Rule 129.2(c) describes what PIE shall include, but before providing a list of examples the rule specifically says PIE is “not limited to” those examples. Contrarily, 129.2(d) describes what PIE shall not include, and does not use any similar limiting language before providing examples. And subsection (d)(5) specifically excludes from PIE “any money paid to an employee under an indemnity disability program paid for by the employee separate from workers’ compensation.” We take the position that the list of non-PIE benefits and wages in subsection (d) is therefore exclusive. And thus any money paid to an employee under an indemnity disability program completely paid for by the employer would be included in the claimant’s PIE. This is certainly consistent with prior Appeals Panel decisions. Note also the holding in APD 010144 that money paid to an employee under a disability insurance program partially paid for by the employer may constitute PIE in proportion to the percentage of the premiums paid by the employer.
FOLIO
