Court of Appeals Awards Employer Hefty Credit for Overpaid Benefits

Feeling discouraged about paying weekly workers’ compensation benefits when you believe the claimant is no longer disabled? Don’t despair – if you are willing to fight, you may just be awarded a credit.

These days, accepting a workers’ compensation claim as compensable by Form 60 is risky business. Employers and insurers often find it very difficult to cut off benefits once they start, even after the doctor releases the patient to return to some work. Positive news from the Court of Appeals this month suggests that both the Industrial Commission and the appellate courts may be becoming more sympathetic of this problem.

In Kirby v. Mission Hospital (Oct. 20, 2020, unpublished), the Court of Appeals affirmed both the Deputy Commissioner and the Full Commission in finding that the claimant had received weekly temporary total disability benefits for several years after her disability ended. Therefore, the court awarded the self-insured employer a credit for benefits paid from May 2016 to present. In finding that claimant’s disability had ended, the court reviewed 50 hours of surveillance video and weighed varying expert opinions. The evidence was voluminous; the three-day hearing was followed by ten expert depositions. Like the Commission, the Court of Appeals noted that the claimant conducted no job search at all until two weeks before the hearing, although she subsequently submitted over 70 job applications and attended three job interviews. The Court also agreed with the Commission that the surveillance video revealed that claimant could move without pain for prolonged periods.

While the outcome of disability cases depends heavily on the facts, Kirby reminds us that a Form 60 does not create a presumption of disability. Even after benefits start, the worker bears the burden of proving continued disability. While unpublished appellate cases do not create binding legal precedent, they do help us see trends. We are hopeful that the Commission continues to make findings consistent with Kirby, in recognizing that the Workers’ Compensation Act is meant to encourage claimants to heal and return to the workforce when their disability ends. At Anders Newton, we continue to fight for employers and insurers who are paying unwarranted workers’ compensation benefits. If you believe you are paying temporary total disability benefits after a disability has ended, contact us to see if you may be entitled to a credit for overpayment. You can reach us at 919-516-8400.

Posted in