GQ Corner
Q: Rule 130.103 mandates that the DWC send a DWC-52 for the 2nd quarter of SIBs with the determination of the 1st Quarter. We send the claimant a DWC-52 for the 2nd quarter via verifiable means to confirm that the claimant is in possession of a form for the 2nd quarter. Would you recommend that we also send the 3rd and 4th quarters to lock in the 12-Month provision as outlined by Rule 130.106(a)?
A: You can do that, but it will not affect the legal outcome. If the claimant does not file for a quarter, there is no obligation for the carrier to send the blank application as it would with a denial or approval of a quarter. The claimant will not be able to claim an excuse for late filing on the basis that they did not have the DWC 52 if they did not do what they needed to do to trigger the carrier obligation to provide the 52.
Further, the provision that relieves Carrier from liability is there is late filing for a quarter is not synonymous with the claimant not being entitled to that quarter. Only quarters where the claimant has not demonstrated entitlement on the merits count towards 4 quarters of nonentitlement. The claimant can come back after failing to file several quarters and seek adjudication of the prior quarters to determine if the 4 quarter rule is applicable. If the claimant can show that SIBs would have been owed had the carrier not been relieved by the filing delay, that quarter does not count toward the four quarters needed for the permanent loss of entitlement.
Q: The claimant has been taken off work by a doctor who is in the network, but the facility where the doctor works is not. Is this off work opinion valid and can we dispute the selection of the doctor and disability?
A: You cannot ignore the DWC-73 simply because the network doctor issued the form at an out-of-network facility. You also could not ignore the DWC-73 even if the doctor himself was out of network. The out of network status could be a factor you could consider in determining whether the claimant has disability. You would need to weigh all the credible evidence to determine whether disability existed.
Q: Claimant has been receiving TIBS. On November 30, 2015, a settlement was reached and our subrogation recovery is $16,666.67. We are currently awaiting the funds. In regards to our offset, are we entitled to suspend TIBS as of November 30, 2015?
A: There is not a definitive answer. Ideally, this contingency is covered by the parties at the time that the third party case is settled. The Division has exclusive jurisdiction to determine whether income benefits should continue until funding, or whether they can be suspended at the time that the settlement is reached. The thing the carrier should do is to insist upon consistency. They should maintain that each week that they continue to pay benefits while funding is pending is a week that increases their recovery from the claimant. In other words, if they continue to pay benefits after the settlement is reached, but before funding, their lien continues to grow and they are entitled to recover that lien (arguably less attorneys’ fees and pro rata expenses). If the claimant doesn’t want to reimburse the carrier for this money then carrier should contend that they are entitled to suspend upon the date that the agreement to settle was reached. This may come down to a question of risk tolerance. Does the carrier want to risk a violation by suspending benefits upon the date of the settlement and before funding if funding is going to happen expeditiously? Probably not.
FOLIO
