Greetings,

Impairment benefits are an area of the 2003 law that has not been heavily litigated previously.  IB’s are now a potential ripe target for claimant’s attorneys. 

The statute basically requires an adjuster to confirm each week whether or not the claimant earned exactly the Average Weekly Wage (AWW).  The benefits are to be paid biweekly, but it is a weekly calculation.

440.15(3)(c) All impairment income benefits shall be based on an impairment rating using the impairment schedule referred to in paragraph (b). Impairment income benefits are paid biweekly at the rate of 75 percent of the employee’s average weekly temporary total disability benefit not to exceed the maximum weekly benefit under s. 440.12; provided, however, that such benefits shall be reduced by 50 percent for each week in which the employee has earned income equal to or in excess of the employee’s average weekly wage.

(First, we don’t know what the legislature meant by “the employee’s average weekly temporary total disability”, that’s not a term found anywhere else in the statute.   Most everyone has just used the TTD rate, but it does say “average” TTD rate.  Would that mean you would divide the total TTD by the number of weeks paid, so partial weeks would change the “average”?  What if there has been no TTD paid?  For now, I think we continue as we have to date and use the TTD rate as the basis for the calculation.)

The area that I see as the biggest problem is the 75% versus reducing that by 50% (to 37.5%) if the claimant is earning the AWW or more.  Most adjusters have typically confirmed at the onset whether the claimant has returned to work and then set the Impairment benefits on rep pay.  However, if the claimant earned a dime less than the AWW one week in the IB period, you would owe the higher percentage for that week.  There is no voluntary of income limitation argument in the formula per the 1^st DCA, they have stated it is pure math.  So even if a claimant was fired for theft, you would have to pay the higher percentage if they are not earning the AWW or greater.

If possible, I recommend confirming the earnings before issuing the biweekly check, just as we would with TPD.   At a minimum, at the end of the IB payments, request the earnings and correct any underpayment, with Penalties and Interest.  If we fail to pay P and I, and subsequently the claimant files a Petition for payment of IB’s and lists P and I, you could owe thousands in hourly fees over a $5 interest payment and a 20% penalty on one week.

One possible way to help in defending this is to send the DWC-19’s to the claimant at the onset of the IB’s.   While we may not want to suspend IB’s if the form is not received back within 21 days, it would give you a possible argument against P and I, and potentially fees, should something be missed.  This is especially true if the claimant is working for a new employer.

Two other questions that often come up on IB’s are child support orders and overpayments.  Technically, IB’s are not an indemnity benefit for lost wages.   I have seen carriers continue to deduct child support from IB’s, and I have not seen anyone challenge it.  Probably not a very popular argument before the JCC by the claimant. 

The overpayment statute says (emphasis added):

440.15 (12) REPAYMENT.—If an employee has received a sum as an indemnity benefit under any classification or category of benefit under this chapter to which she or he is not entitled, the employee is liable to repay that sum to the employer or the carrier or to have that sum deducted from future benefits, regardless of the classification of benefits, payable to the employee under this chapter; however, a partial payment of the total repayment may not exceed 20 percent of the amount of the biweekly payment.

So, although IB’s are not indemnity, I do think you can recoup an OP from them.

 

Sincerely,
Morgan Indek | Partner