EG Gazette- February 2023
Authors: Hunter Trubatch- Miami, Jennifer Swan- Orlando, Jordan Goldring- Georgia, Emily White- Tennessee
Editors: Jacob Berry- Georgia and Victoria Olson- Georgia
Employer Earnings Reports/DWC-19s: Useful Tips and Tricks to Keep Claimants Honest
By: Hunter Trubatch | Miami
“Employee Earnings Reports” also known as EERS and DWC-19s are a useful tool that helps you monitor any Claimant’s earnings during the lifespan of a claim. These forms that are required to be filled out by the Claimant on a monthly basis force the Claimant to disclose any earnings from any employment or source when they have a pending claim. Obtaining information about the Claimant’s income during the claim has many applications to make sure the Claimant is not being paid benefits he or she is not entitled to. Information reported in these forms could be used to suspend the Claimant’s benefits if they are not returned in a timely fashion. Due to this fact, they are a useful thorn in Claimant’s Counsel’s side that can be used as a bargaining tool. Below we will discuss the process to apply information disclosed in these forms, how to properly execute the completion of these forms, and some common pushback received while trying to obtain information on the Claimant’s earnings.
Below is an example of the cover letter we send monthly with the DWC-19 to Claimant’s Counsel. The cover letter contains the applicable language from the statue and states for which month the DWC-19 is being requested.
Enclosed please find Employee Earnings Report for January 2023. These forms are requested pursuant to Florida Statute §440.15(2)(d) and §440.15(7). Please note that on the Employee Earnings Report, there are questions regarding the Claimant’s earnings. Please do not return the form without answering the stated questions. According to Fla. Admin. Code R. 69L3.01915(1)(b)4, indemnity benefits may cease if an injured employee does not return the previously provided DWC-19s/Employee Earnings Reports to the carrier within 21 days of receipt. Additionally, Similarly, Florida Administrative Code Rule 69L-3.021 states:
(2) Upon request of the . . . claims-handling entity, any employee eligible for . . . temporary partial [disability], . . . shall complete, sign, and return Form DFS-F2-DWC-19, as adopted in Rule 69L-3.025, F.A.C., within 21 days after receiving it to report all earnings of any nature, including all social security benefits. The . . . claims-handling entity may require the employee to send Form DFS-F2-DWC-19 no more than once a month.
(3) If the employee refuses to report information requested in accordance with subsection . . . (2) above within 21 days after receipt of the request, payments of workers’ compensation disability benefits for . . . temporary partial [disability], . . . shall cease until such time as the employee furnishes the signed form.
Although DWC19s/EERs are an effective tool to keep Claimant’s honest, there are certain procedural rules that need to be followed about serving the forms. Additionally, the forms can be used to cross check information the Claimant testifies about in a deposition or seen during surveillance. Lastly, Claimant’s Counsel constantly push back against completing the forms since they are well aware of the implications if their client fails to disclose certain information or if the forms are not complete. We will lastly discuss some common push back from Claimant’s Counsel when sending the DWC-19s, along with how to counter these arguments.
To effectively use the returned, or lack of returned, DWC-19s against the Claimant, the burden is on the Employer/Carrier to prove the forms were actually sent to the Claimant. This is typically not a hard burden to overcome as we here at Eraclides Gelman email these forms to Claimant’s Counsel on a monthly basis for you. That email receipt is sufficient to overcome the burden of showing they were sent. Additionally, since they are sent on a monthly basis, you do not have to worry about mailing anything directly to the Claimant as we provide them to Claimant’s Counsel regularly to absorb some of the pushback for you.
One useful application of EERs is the potential to suspend the Claimant’s benefits if the forms are not properly completed within the given time frame. Getting a signed form in writing of the Claimant’s earnings that can be used against them or compared to other information obtained is extremely useful. In practice, this would mean checking the Claimant’s disclosures on the EERs with deposition testimony, surveillance obtained, or things you have discovered during your investigating of the claim. Claimant’s Counsel sees this as a “fraud trap” and they constantly push back on completing the forms. Although it can be used as a way to check the Claimant’s deposition testimony or their statements to an authorized physician, the primary purpose is not to trap the Claimant in a fraudulent statement. However, due to this perception by Claimant’s Counsel, we constantly receive push back for completing these forms, especially here in South Florida. Suspending the Claimant’s benefits is an extreme step and something that can be easily remedied by completion and return of the forms. For this reason, using the threat of suspension typically garners an instant response of Claimant’s Counsel providing the required information needed for your investigation.
In conclusion, the use of EERs or DWC-19s to keep claimants honest is something that can change regularly throughout the history of the claim. Although the lack of completion can allow you to suspend the Claimant’s benefits, sometimes threating suspension is enough to get the Claimant to comply with completing the required forms. Even though completing a one-page form to receive monthly benefits is not overly burdensome, there is still pushback from Claimant’s Counsel that it is simply a fraud trap. Although it can be used for that purpose, that is not the standard and regular course of use of the forms. Pushback from Claimant’s Counsel against keeping the Claimant honest goes to show the usefulness of the forms and how wielding them as a threat and thorn can be extremely useful without exercising the full power of suspending benefits.
By: Jennifer Swan | Orlando
Surveillance is a commonly requested item in a claimant’s Request to Produce. Claimants’ counsels will sometimes try and halt a deposition of a claimant if they haven’t received the surveillance videos from the work/accident cite. This static surveillance issue has some case law in the defense’s favor, but as with most things, it is not always a guaranteed win.
Generally speaking, it is within the JCC’s discretion to either (1) compel discovery of the surveillance prior to the deposition or (2) compel the deposition prior to disclosure of the surveillance. In Dodson v. Persell, 390 So. 2d 704 (Fla. 1980), the Florida supreme court held that it is within the trial court’s discretion that the surveilling party has the right to depose the party or witness filmed before being required to produce the contents of the surveillance information for inspection. (This was regarding surveillance of the party after the accident.) Claimant’s counsel can try to claim prejudice by not being able to review the surveillance prior to the deposition, or that as it is static surveillance it is not protected by work product because it was not prepared in anticipation of litigation. Another common claim you may see is that the EC will use the discrepancy between the deposition testimony and the surveillance to support a misrepresentation defense.
Courts have found the following argument to be persuasive for claimants. In Target Corporation v. Vogel, 41 So. 3d 962 (Fla. 4th DCA 2010), the 4th DCA upheld a trial court’s order requiring the store to disclose the surveillance video as it was not work product, in that it was not prepared to aid counsel in trying the case but was instead a video of the accident itself.
Later in McClure v. Publix Super Markets, Inc., 124 So. 3d 998 (Fla. 4th DCA 2013), the 4th DCA denied a motion to compel, affirming that it is within the trial court’s discretion. In Bursler v. Pike Electric, OJCC Case No. 15- 029935, a 2015 case out of Fort Myers, the trial court was persuaded by EC’s argument that they should be allowed to depose the claimant and obtain their recollection of the incident, without it being influenced by what they view on the surveillance, as once the surveillance is viewed the claimant will no longer have a true memory of the event itself. Instead, their recollection will be altered with what was witnessed on the surveillance. If the claimant’s testimony is inconsistent with what the surveillance shows, they will have the opportunity after the surveillance is disclosed to review it and explain the discrepancy as EC will agree to produce the surveillance after the claimant’s deposition.
This delay in providing the surveillance can be an important part of obtaining honest and valuable testimony from the claimant that will be useful in negotiating a settlement or be beneficial for defense at a final hearing.
The WC-240 Process: Returning An Injured Employee to Work in the “Return to Work State”
By: Jordan Goldring |Georgia
Many adjusters who are used to the return-to-work process in other states are usually dismayed by the return-to-work process in Georgia. Trust me, I understand. Georgia is a “Return to Work State.” If you are familiar with Georgia workers’ compensation laws, you are probably aware that Georgia did not follow any other states’ laws when creating its own workers’ compensation laws. In other words, it is unique. In fact, the only way to end indemnity benefits in Georgia is to settle, obtain a normal duty release from the authorized treating physician, or return the employee to work.
One of the most widely utilized yet daunting processes amongst employers and insurers in the Georgia workers’ compensation arena is the 240 process, which is based on O.C.G.A. §34-9-240 and Board Rule 240. This process allows employers to return employees to work once light duty restrictions have been assigned by the authorized treating physician (“ATP”). After jumping through the many hoops of the 240 process, employers have the ability to unilaterally suspend income benefits.
While the 240 process may appear on its face to be relatively straight forward, there are often unforeseen circumstances that present unusual issues in the return-to-work process. The following provides a brief overview of the necessary steps employers must take to return employees to work as well as an analysis of some unique questions that may arise along the way.
- The WC-240 Process: It’s All About the Forms.
It is quite literally, “form(s) over substance.” In order to properly complete the 240 process and lawfully suspend income benefits, employers must satisfy many requirements. Most notably, the employee must have been released to return to work with light duty restrictions by his or her ATP and the employer must have a light duty job available within those light duty restrictions. The 240 process cannot be utilized if an employee is on a no-work status.
- Why do the forms matter anyway? (Because the law says they do.)
Once the ATP has released the employee to light duty work, and the employer has confirmed it can accommodate those restrictions, the next step is to send a copy of the light duty job description to the ATP for approval. While the WC-240a Job Analysis form is helpful and commonly used, it is not required. In some instances, it is both easier and equally sufficient to send a written description of the light duty position to the ATP. Whichever you use, it is important that the employer indicates the wages, hours, and physical requirements of the light duty position. Please note, the Board Rules require that a copy of the job description or WC-240a be simultaneously sent to the employee (and his or her counsel if represented) in the same manner it is sent to the ATP.
Once the ATP approves the light duty position, the employer can formally offer the position to the employee via the WC-240 Notice to Employee of Offer of Suitable Employment form. Prior to submitting the WC-240 form to the employee (and to his or her counsel if represented), an employer must attach the approved light duty job description. There are two important details to remember at this step. First, the ATP must have approved the light duty position within 60 days of submitting the WC-240 to the employee. Otherwise, an employer will have to resubmit the job description to the ATP for approval. Second, employers must give the employee 10 calendar days’ notice of the return-to-work date. For example, if you send the WC-240 to the employee or his or her counsel on January 1, the earliest the employee could be required to return to work for the employer so that the employer may unilaterally suspend income benefits is January 11.
- The forms are good to go, now can I stop paying benefits?
As tedious as the process may seem thus far, the uphill battle truly begins once the WC-240 is sent to the employee, especially if he or she is represented. If the employee categorically refuses to attempt the proffered job, income benefits can only be unilaterally suspended if the refusal is unjustified. Lawful suspension of benefits requires the employer to file a WC-2 Notice of Suspension of Benefits with the Board and attach the WC-240 (including all attachments) that was previously submitted to the employee. Board Rule 61(b) also requires that a service copy of the WC-2 and attachments are sent to the employee and his or her counsel as appropriate. There are a lot of hoops to jump through, but an omission of any of the above steps may be deemed an unlawful suspension of benefits and possibly result in an award of assessed attorney’s fees against the employer.
If the employee reports to work as indicated on the WC-240, the employer may file a WC-2 with the same attachments indicated above and suspend benefits as of the date the employee returned to work. This sounds easy enough, but don’t be fooled – nothing is ever that easy under the Georgia workers’ compensation laws. If the employee attempts the light duty job for at least 8 hours (or one shift) but for less than 15 days, the Board Rules and statutes require that income benefits be immediately recommenced.
In that case, the Hail Mary for employers to re-suspend benefits is to request a hearing based on an unjustified refusal to accept suitable work or for a change in condition for the better. Requesting a hearing under these circumstances truly is a “Hail Mary”, and the burden of proof is on the employer to prove that the employee actually was capable of performing the light duty job description. From a strategic standpoint, however, the looming litigation can often push a claim towards settlement. A pending hearing means commencement of formal discovery, which requires the employee and his attorney do actual work, and after all, neither the employee nor his attorney actually want to work (otherwise the employee would have continued working the light duty position).
Even if all goes as planned, and the employee is able to perform the light duty position in excess of 15 days, the employer still may be liable for some income benefits if the employee is earning less in the light duty position than his pre-injury average weekly wage. The employer will be required to pay Temporary Partial Disability benefits and file a WC-262 with the Board in 13 weeks intervals reflecting the same.
II. The WC-240 Process: The Unexpected & Unusual Circumstances
Even where an employer has successfully jumped through all the hoops required by the WC-240 process, certain issues arise from time to time that muddy the waters. Below are examples of some of these unexpected and unusual circumstances and outcomes of the same.
- We need the Employee to work specific hours that she doesn’t like.
Example: Following the Employee’s release to light duty work, Employer offered her a light duty job within her work restrictions on the worksite’s third shift (Oh no!). Employee’s counsel argued this was “not an offer of suitable employment” because the Employee had “repeatedly” told Employer she could not work the third shift because of her children. In fact, when Employee was hired, it was only to work first shift.
Outcome: Under Georgia Workers’ Compensation Act, if an injured employee refuses employment both procured for her and suitable to her capacity, she will not be entitled to any compensation at any time during the continuance of such refusal unless the Board determines her refusal was justified. In determining suitability, the Employee’s refusal to perform the job must relate to her ability or skill to perform the job, or factors such as geographic location or travel conditions which would disrupt her life. Fortunately, the Georgia Courts have established that “refusal of a light duty job by an employee receiving workers’ compensation benefits because the employee did not want to work on the second shift is not a justified refusal.” Therefore, Employer’s above light duty job offer should be found to be suitable.
- I don’t have a light duty position, but I will make one!
Example: Employer is a manufacturing plant that specializes in producing heavy machinery. With the exception of administrative office personnel, all employees work in the production warehouse performing physically demanding jobs which often require them to lift up to 50 pounds. Employee was injured while pulling parts off the conveyor line. The ATP, Dr. Nowork Foryou, has recently released Employee to return to work with light duty restrictions of no lifting over 10 pounds. As mentioned above, Employer does not have any routinely light duty work available for injured employees but is willing to create a light duty job within those restrictions.
Outcome: Employer may voluntarily create a light duty position for Employee which would not ordinarily be available. For example, Employer may bring Employee back to work answering phones in the office, opening the front for delivery drivers, or sorting papers in the office. The idea is that Employer just needs to bring Employee back to work in some capacity. Even if Employer can only provide 2 hours of work one day a week to Employee, that is enough to reduce TTD benefits to TPD benefits. If it is absolutely impossible to create a light duty position for Employee, Employer could look to utilize the services of a third-party transitional duty program which would outsource Employee and return them to work for a different employer on a temporary basis.
- You just had surgery, so you won’t be at work tomorrow?
Example: Employee returned to work via the WC-240 process and has been working without issue for several months. However, Dr. Claim Value has now ordered surgery, and Employee will be placed on a no-work status following said surgery.
Outcome: Anytime an employee gets taken totally out of work, it breaks the previous offer of light duty work because light duty cannot be offered while someone is taken totally out of work by the ATP. Once Dr. Value re-releases Employee to return to work with light duty restrictions, Employer will have to send a new job description to Dr. Value and restart the WC-240 process from the scratch. Bummer, I know.
- Innocent (and entitled to income benefits) until proven guilty!
Example: Employer jumped through all the hoops required of the WC-240 process. However, the day before Employee was to return to suitable light duty employment, he was arrested. Employee cannot post bail, and is worried that his income benefits may be suspended.
Outcome: The Georgia Court of Appeals has held that under these circumstances, Employee’s refusal to accept work was justified until the time of the guilty plea or conviction.
The Court reasoned that “where the claimant is receiving workers’ compensation benefits at the time of his arrest, his incarceration pending adjudication of his guilt justifies his refusal of suitable employment which is offered to him while he is incarcerated but before he is adjudicated guilty.” In other words, Employee is entitled to receive income benefits from the time he was imprisoned until the date that he pleads guilty or is convicted. This is based upon the constitutional guarantee of equal protection. Otherwise, the law would be in favor of an accused capable of posting bail over an accused incapable of doing so.
- What do you mean I worked more than 15 days? I only clocked in twice!
Example: Today is January 16. Employee returned to work via the WC-240 process on January 1 and has been working without issue. Employee’s light duty position only requires him to work two days per week. Employee recently retained counsel and is now alleging that the light duty position is aggravating his injury. Employer wants to suspend his benefits since it has been 15 days since Employee returned to work.
Outcome: The 15-day period requires that Employee has worked 15 business days, not that 15 calendar days have passed since he began the light duty job. To count towards the 15 days, Employee must have actually come to work and clocked in/out each of the 15 days, so the days he was just absent or did not work because he was not scheduled weekend do not count. Under this example, Employer will have to recommence indemnity benefits immediately.
How to Utilize the Defense of Willful Misconduct
By: Emily White |Tennessee
Tennessee Code Annotated § 50-6-110(a) provides that “No compensation shall be allowed for an injury or death due to: (1) The Employee’s willful misconduct.” Tennessee Code Annotated § 50-6-110(b) states that “If the employer defends on the ground that the injury arose [due to the employee’s willful misconduct], the burden of proof shall be on the employer to establish the defense.” So what, exactly, does that mean for employers?
In Mitchell v. Fayetteville Public Utilities, the Tennessee Supreme Court established a four-part test for determining whether the employee’s injury was the result of willful misconduct under the statute. In that case, the employee was working as an electrical lineman who sustained severe electrical burns to both hands and his side after removing his protective gloves while working on a line. The trial court awarded benefits to the employee, finding that he had plausible explanations for the removal of his protective gloves. The employer appealed.
On appeal, the Tennessee Supreme Court adopted a four-part test to determine whether the employee’s injury was the result of willful misconduct. To successfully establish the defense, the employer must show:
- The employee’s actual, as opposed to constructive, notice of the rule;
- The employee’s understanding of the danger involved in violating the rule;
- The employer’s bona fide enforcement of the rule; and
- The employee’s lack of a valid excuse for violating the rule.
While Mitchell is an “old law” case, the Court of Workers’ Compensation Claims still follows this test. Employers can assert the defense of willful misconduct when they can offer proof of the four Mitchell factors.
The first two factors can be proven in a number of ways. To prevail, the employer must prove the employee’s actual, as opposed to constructive, notice of the rule and his or her understanding of the danger involved in violating that rule. To prove actual knowledge, the employer would likely need to show more than simply a rule set out in an employee handbook. For instance, the employer can show that it conducts regular, mandatory safety training for dangerous machinery. It could also show that it has posted warning signs on or around such machinery, and that the employee has expressed understanding of the dangers associated with violating safety protocol by attending training and, for example, signing a written statement. The employer can also protect itself by making a policy that all supervisors should remind employees of job-specific safety standards and rules prior to the start of any job.
In Mitchell, for example, the employee had been provided a copy of the employer’s safety manual, and had signed a receipt stating that it was his duty to “read, study, and abide by these safety rules and work procedures.” Further, the morning of the accident, the employee’s foreman had briefed him on the equipment necessary for that specific project, and the employee had signed a form stating that he understood his responsibility to wear protective equipment while performing the work. The Court found that this was sufficient proof to establish the first two prongs of the test.
The third factor, the employer’s bona fide enforcement of the rule, comes down to one word: consistency. If an employer has a safety rule in place, it must uniformly enforce that rule, regardless of whether an employee is injured when violating the rule. The Court will not find bona fide enforcement of the rule if the employer allows the behavior that the rule is meant to prohibit. For example, assume that a trucking company has a safety rule in place stating that a driver cannot be on the road for more than four hours without stopping. However, the employer routinely allows drivers to drive for six or seven hours without consequence. If an accident occurs when a driver is on his fifth hour, the employer will likely be precluded from utilizing this defense. On the other hand, if drivers are disciplined accordingly after driving for more than four hours at a time, the employer will have a better chance of prevailing on this defense should an accident occur in hour five.
In Mitchell, following the safety violation, the employee was suspended for three days without pay, demoted in pay, and reduced in position for six months. Further, other members of the employee’s crew were also disciplined for the violation.
To establish this factor, the employer should be able to show that other similarly-situated employees who have violated the rule have received sanctions. If the injured employee has been disciplined for a similar rule violation in the past, all the better. The key here is that the employer routinely enforces its safety protocols.
Finally, the employer must show that the employee lacked a good excuse for violating the rule. The Court found in Mitchell that “convenience to the Employee does not qualify as a valid excuse.” While this factor is much more fact-specific than the others, employers can still take steps to protect themselves and ensure that they can meet the requirements of this factor should an injury occur. For instance, employers should ensure that all equipment is well-maintained and in good working order. They should also have procedures in place for repairing or replacing damaged safety equipment. In Mitchell, for example, if an employee damaged his safety gloves, the employer immediately replaced them at no cost or penalty to the employee.
All things considered, the willful misconduct defense is a handy tool for employers if they take steps to ensure that it will be available to them should an accident occur. Below are some key takeaways, but feel free to email me at email@example.com if you have any further questions.
- The Tennessee Court of Workers’ Compensation uses a four-factor test to determine whether the willful misconduct defense is available to employers. To utilize this defense, employers must show: (1) the employee’s actual, as opposed to constructive, notice of the rule; (2) the employee’s understanding of the danger involved with violating the rule; (3) the employer’s bona fide enforcement of the rule; and (4) the employee’s lack of a valid excuse for violating the rule.
- Employers can protect themselves by having strict safety policies in place, by ensuring that all employees undergo mandatory safety training, and by documenting the employee’s participation in that training.
- When it comes to enforcement, consistency is key. Make sure that any employee who violates a safety rule is disciplined, regardless of whether an injury occurs.
- The employee’s convenience is not a valid excuse for a rule violation. Employers can protect themselves by ensuring that all machinery is in good working order, and that there are procedures in place to maintain, repair, or replace faulty equipment.