Employer May Suspend Benefits for Failure to Complete DWC-19

Thursday, December 29, 2011 | 0

Previously, I wrote about how an employer/carrier must present evidence that a claimant failed to complete an earnings report (DWC-19 form) in order to suspend temporary partial benefits. In the Rucker v. Just Brakes case, the E/C failed to assert this as an affirmative defense and therefore the judge could not limit Claimant’s right to penalties and interest nor was the E/C correct in suspending benefits.

In other words: Send them the forms. Send them the forms. Send them the forms.

But, what about permanent total disability? Can an E/C unilaterally suspend PTD benefits when a claimant fails to complete a DWC-19 form?

In Glinski v. Pan American Bank, the E/C had been paying claimant PTD benefits for almost 20 years. It is unclear whether claimant won PTD benefits at trial or the E/C voluntarily picked her up as PTD (more about that in a bit). In 2009, the E/C sent claimant DWC-19′s to complete. For four months, claimant failed to complete and return the forms and when she did they were incomplete.

To ensure claimant complete the DWC-19′s, the E/C suspended benefits unilaterally. According to S. 440.15(1)(f)2.b., a claimant must report all earnings and Social Security income (via the DWC-19′s) and the E/C is not required to make any PTD payments for the period claimant willfully fails or refuses to report such income.

Claimant tried to convince the judge that she did not “willfully fail” complete the DWC-19′s, that it was an accident.  But, the judge did not buy it and the 1st District Court of Appeals stood by the suspension of benefits. The court noted Florida Administrative Code Rule 69L-3.021(2) also gives the E/C further power to suspend benefits after failure to answer the DWC-19′s for more than 21 days.

But, what is important is that the 1st DCA also confirmed that the E/C need not seek a judge’s permission to suspend the benefits even if claimant won PTD benefits at a trial. This is important because – as I wrote previously – there is no indication in Glinski of how claimant obtained PTD entitlement.

As we all know, if a claimant wins PTD at trial, the E/C can no longer administratively suspend PTD benefits if it has evidence that claimant is no longer PTD.  The E/C has to present to the judge a “change in condition” per S. 440.28.

However, in Glinski we have an exception.  An E/C can suspend benefits unilaterally – without permission from the judge – if claimant fails to respond to the DWC-19 forms.  And, it is imperative for an E/C to have this tool to obtain Social Security, and all income.

So, once again: Send them the forms. Send them the forms. Send them the forms!!!

WorkCompCentral subscribers may download the court decisions mentioned in this column by clicking the case titles in the sidebar.

And, once again, here is the DWC-19 form.

<i>Michael Rabinowitz is a shareholder of Banker Lopez Gassler, a workers' compensation defense firm in Tampa. This column was reprinted with his permission from his Workers' Comp Corner blog.