Terminating Benefits - An Insider’s View of the Form 24 Process - Part 2 of 3

By: Holly S. Culley

Welcome back to Part 2 of our blog series on terminating indemnity benefits. In this installment, we will talk about other methods and situations in which a claimant’s indemnity benefits are terminated.

Ongoing Disability Not Related to Injury

If you have ever been faced with a situation where a claimant has suffered ongoing disability, but that ongoing disability is not related to the claimant’s injury, you may have wondered if you are required to continue paying indemnity benefits. Examples of this situation include an economic downturn or a disabling personal medical condition unrelated to the claimant’s injury. In situations like these, defendants can seek to terminate a claimant’s indemnity benefits. To do so, it is necessary to show the following:

-           Documentation of the alleged reason for the claimant’s disability;

-           Medical and other documentation demonstrating that the claimant is no longer disabled by the work injury;

-           A medical release to return to work with or without restrictions due to the work injury; and

-           If the claimant is restricted due to the work injury, documentation demonstrating that suitable employment is available that plaintiff could return to but for the unrelated issue of ongoing disability.

Unjustified Refusal to Comply with Medical Treatment and/or Vocational Rehabilitation

A claimant’s indemnity benefits can also be suspended when a claimant refuses to comply with medical treatment pursuant to N.C. Gen. Stat. § 97-25 and/or vocational rehabilitation pursuant to N.C. Gen. Stat. § 97-32.2. This is a two-step process. Defendants first need to file a Motion requesting that the Industrial Commission order the claimant to comply with medical treatment or vocational rehabilitation that has been recommended by a claimant’s authorized treating provider. In that Motion, it is important to ask the Commission to suspend the claimant’s indemnity benefits if the claimant fails to comply with said treatment.

Once the Commission issues an Order directing the claimant to comply, it is important to document each occasion when the claimant fails to comply with either medical appointments or vocational rehabilitation as ordered. It is also important to document all correspondence and efforts to communicate with the claimant regarding appointments. If plaintiff continues to not comply with medical treatment and/or vocational rehabilitation as ordered by the Commission, defendants can then file a Form 24 Application and seek to have plaintiff’s indemnity benefits terminated due to his/her failure to comply with the Commission’s order. We note, however, that this is a fact specific process. As such, plaintiff may be able to submit adequate justifications for his/her failure to comply that defeat the Form 24 Application.

Once claimant demonstrates compliance with the Commission’s Order, indemnity compensation must be re-instated.

*Practice tip: A nurse case manager is helpful in these scenarios as the nurse case manager can coordinate the scheduling of medical treatment and/or vocational rehabilitation, communicate the claimant’s attendance (or lack thereof) at said appointment(s), and document communication with the claimant regarding the ordered medical treatment and/or vocational rehabilitation.

Unjustified Refusal to Attend an IME

Similarly, a Form 24 can be filed to suspend a claimant’s indemnity benefits for the claimant’s unjustified refusal to attend an independent medical examination (IME). Pursuant to N.C. Gen. Stat. § 97-27(a), said section gives an employer a statutory right to an IME. A refusal to attend forms the basis of filing a Form 24. In filing a Form 24 based on a claimant’s refusal to attend an IME, you will need to provide documentation of a scheduled IME, documentation that plaintiff was notified and failed to attend the IME, and documentation of any related communications or correspondence between the parties.

Failure to Complete and Return Form 90

A less common, but viable, method of suspending a claimant’s indemnity benefits through the Form 24 process involves the use of a Form 90. A Form 90 is a form sent to claimants requesting a Report of Earnings from the plaintiff. If defendants send a Form 90 to a claimant and the claimant fails to respond to complete and return the Form 90 within 15 days, a Form 24 application to suspend benefits may be filed on this basis. In order to file a Form 24 based on this method, defendants will need to show that the Form 90 was sent to the claimant and claimant did not return that Form within 15 days after receiving said Form. Once plaintiff complies and returns the Form 90, indemnity benefits must be re-instated.

*Practice tip: If the claimant is unrepresented, the Form 90 must be sent to the claimant via certified mail with a return receipt requested and a self-addressed, stamped envelope for the claimant to return the Form 90 to defendants.

Termination Due to Incarceration

Finally, a claimant’s indemnity benefits can be terminated if a claimant is incarcerated by filing a Form 24 and seeking an Order allowing for the termination of indemnity benefits due to a claimant’s incarceration. In order to terminate an incarcerated claimant’s indemnity benefits, defendants should show documentation of the date plaintiff was incarcerated and the release date, if known. A print-out from the local jail or Department of Corrections, or other official documentation showing plaintiff’s incarceration, would be sufficient to provide proof of plaintiff’s incarceration.

In our last and final installment of this series, we will address other issues involved with the Form 24 process, including surveillance, credits for overpayment of indemnity benefits, the time frame for the Form 24 process, and other relevant issues. In the interim, if you have any questions regarding the Form 24 process, please reach out to one of our skilled attorneys for further guidance. See you next time!