Greetings, by special request, in follow up to last week’s tip on suspending for failure to return the Fraud Statement, this week is about suspending for failure to return the DWC-19 Employee Earnings reports. As with the Fraud statement, it’s a strategic decision.
(Join us at two upcoming events, an afterhours CEU at the Orlando office (2/26) and our Tips of the Month webinar (2/19)
The DWC-19’s are an under-utilized tool we have at our disposal. The Admin code (below) states we can send the form to the claimant for completion if the claimant is receiving TTD. TPD, PTD or IB’s. If the claimant does not return the form within 21 days of receipt, you can suspend these classes of benefits until you receive the completed form.
If you suspend, once the form is received, you will have to go back and pay the benefits, but without penalties and interest. No attorney fees either (Aranca vs. Monroe Regional Medical Center, 945 So. 2d 613 (Fla. 1st DCA 2006) where the Claimant failed to complete and return the DWC-19’s, no attorney’s fees or costs were due or owing.)
Here are some considerations:
- When does the 21 days start? The “mailbox rule” states you have to add 5 days for receipt if mailed unless the form was emailed to the claimant (26 days from day sent)
- These can be very helpful on IB’s to help prevent penalties and interest if you are paying the reduced amount because the claimant has returned to work. If their earnings fall below the AWW any given week, you would owe the higher IB rate, and the DWC-19’s could arguably prevent penalties and interest.
- Typically, based on an incomplete/inaccurate DWC-19, I don’t recommend pursuing Fraud without other evidence, but it can be a piece of your argument as further proof of intent.
- You can send directly to a represented claimant to complete, but I do recommend sending a copy to their attorney as well.
- There is no Spanish-language version, so we may have to tread more carefully in that situation.
- I would be hesitant to cut off a judicially awarded PTD claim although there is some caselaw to support doing so (let’s chat first)
Section 69L-3.021 – Additional Income Source Reports
(2) Upon request of the Division, employer, or claim administrator, any employee eligible for temporary total, temporary partial, permanent total disability or permanent total supplemental compensation 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 Division, employer, or claim administrator 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 (1) or (2) of this rule within 21 days after receipt of the request, payments of workers’ compensation disability benefits for temporary total, temporary partial, permanent total or permanent total supplemental compensation shall cease until such time as the employee furnishes the signed form.
(4) For dates of accident on or after October 1, 2003, upon the request of the claim administrator, any employee eligible for impairment income benefits shall complete, sign, and return Form DFS-F2-DWC-19 within 21 days after receiving it to report all earnings. The claim administrator may require the employee to send Form DFS-F2-DWC-19 no more than once a month. If the employee refuses to report earnings within 21 days after receipt of the request, payments of workers’ compensation disability benefits for impairment income benefits shall cease until such time as the employee furnishes the signed form.
In Perdue v. Sebring Marine IND. INC. and Sentry Claims Center, (1st DCA 2011). The First DCA held that because the employer/Carrier sought to avoid payment of the requested TPD benefits on grounds the forms had not been completed, the Employer/Carrier had the burden to prove it sent the forms to the claimant. The Court found the E/C did not prove that the forms were ever sent to the claimant and thus failed to prove that any duty ever arose on the claimant’s part of complete and return the forms.
For more upcoming events and CEU’s. please check our Events page on our firm’s website: https://eraclides.com/events/
Sincerely,
Morgan Indek | Managing Partner