So, the claimant is released to light duty work. What do I do now?

I write to share my recommendations and response to this question because this is one of the most frequently asked questions. First of all, what was claimant’s original job description, and is the claimant physically capable of returning to the original pre-accident job? If so, my opinion is that no further benefits are owed regardless of availability of the prior job because the claimant is no longer disabled from earning his pre-accident wages. Then, a LWC-WC-1002 needs to be completed modifying the benefit status. Be sure to send a copy of the 1002 to claimant by certified mail, to opposing counsel by facsimile and to the Office of Workers’ Compensation by mail on or before the effective date of the modification. (Although the transmittal to the OWC does not have to be by certified mail, doing so would help you to prove when the 1002 was mailed, eliminating the potential down the road for your testimony, affidavit or otherwise.) You should check off of “release to return to work full duty” and “employee able to earn 90% of pre-accident average weekly wage” under section 11 suspension/termination. You should also check off “disability” under section 12 controversion. And don’t forget to pay the additional indemnity benefits so that claimant is paid through and including the date that you send out this 1002 form.

On the other hand, if the claimant is incapable of returning to the original pre-accident job (for example the original pre-accident job required a 50 pounds lifting limitation which is certainly above the light duty work status), then the benefit status needs to be modified to Supplemental Earnings Benefits (SEB’s), and you need to continue payments. You should complete and transmit a 1002 form using the guidance set forth above. However, instead of checking off anything under sections 11 or 12, you should check off section 10 “modification” and under section 10 B put the SEB payment amount.

If there are no earnings and no wage-earning capacity has been established by vocational rehabilitation, you will pay the full rate, and the proper method is to pay SEB’s at the same frequency as Temporary Total Disability (TTD) payments were made. If there are earnings, or if there is a wage earnings capacity, you will need to perform the appropriate calculation (call me to discuss), and you would be allowed to pay that SEB’s monthly.

It is prudent to send a letter to a claimant who is qualified for SEB requesting monthly LWC-WC-1020 forms. A more “aggressive approach” is that SEB payments are paid monthly and that after the claimant is put on notice of the obligation to submit 1020 forms, you have the right to wait to issue the monthly SEB check, until after you received a properly completed 1020 form. To be timely, the check for SEB’s needs to be issued and mailed within 14 days of receipt of the executed 1020 form.

It is also prudent to make sure that you have an executed LWC-WC-1025.EE form from the claimant, setting forth the applicable law on working and receiving indemnity benefits.

After reading this, I surmise that you understand why this is a frequently asked question and that you will likely have follow-up questions. If either of these is the case, please feel free to reach out to us, when it is convenient to you so that we can help.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.