Terminating Benefits - An Insider’s View of the Form 24 Process - Part 3 of 3
By: John Ruocchio
In the previous two blogs, we discussed the Form 24 application, the basis for terminating benefits and issues with same. This final blog will address other topics that have been presented appropriately and inappropriately to the Industrial Commission in the course of a Form 24 application.
Surveillance: Surveillance is a controversial aspect of the Form 24 process. Depending on the allegations and other documentation submitted, surveillance may or may not be helpful in terminating or suspending benefits. Surveillance may show the plaintiff performing physical activities that appear to be beyond his restrictions, however, surveillance standing alone often is not helpful. Surveillance should be sent to the treating doctor and the treating doctor should render an opinion in writing and that, then, should be submitted to the Industrial Commission. Further, social media posts from Facebook, Twitter, Instagram, etc. may be additional evidence but again not dispositive. As stated, if surveillance is used, it should be done in conjunction with obtaining a physician’s opinion.
Ex Parte Communication: Ex parte is Latin for “on one side only.” NCGS § 97-25.6 allows communication with a physician provided it is simultaneously copied to the plaintiff’s attorney or the unrepresented plaintiff. If the documentation shows that the statute was followed, then the Form 24 process goes forward. However, if it is shown that NCGS § 97-25.6 was not followed and that the communication was ex parte, then the information obtained from same is not admissible. It is the old fruit of the poisonous tree scenario which means that if the fruit is obtained in a tainted manner, it too is tainted. Accordingly, using ex parte communication, i.e., sending a letter without copying the plaintiff, will lead the Special Deputy to be unable to render an opinion.
Requesting a Credit/Abeyance Order: If a Form 24 is approved, the Special Deputy may also grant a credit for the overpayment of TTD, but not a reimbursement. There is a significant difference. An overpayment is a credit which, when there is closure, i.e., settlement or payment of a permanent partial disability rating, defendants would be able to take a credit. However, they cannot order the plaintiff to issue a reimbursement. In addition, a Form 24 can be held in abeyance. Typically, a motion is filed post-filing of a Form 24 or even after a Form 24 hearing to hold the matter in abeyance pending resolution of the claim and/or approval of a settlement agreement. The purpose of filing a motion to hold the 24 in abeyance is to preserve the filing date and, therefore, the credit in case the settlement does not go through.
Medical Motions During a Form 24 Hearing: Medical motions may be heard during a Form 24 hearing but only at the discretion of the Special Deputy Commissioner. The basis for that statutorily is NCGS § 97-18.1(e). When either party has requested the Special Deputy to hear the medical motion as part of the Form 24 application, and the other counsel is given an opportunity to respond, the Special Deputy will likely permit the motion. However, some may permit the motion even if it is brought up during the hearing for the first time, but will allow opposing counsel to respond within five (5) days after the hearing. Therefore, of note, medical motions can be brought up during the Form 24 process if they are germane to the Form 24.
Issues that are improper for a Form 24 Application:
1. Plaintiff has returned to work. Believe it or not, some people file a motion to terminate benefits when plaintiff has returned to work. However, simply filing a Form 28 or a Form 28T is the proper procedure. This is more advantageous than filing a Form 24 because it is a unilateral form and does not require approval by the Industrial Commission, and it is unnecessary to file a Form 24 under these facts.
2. Plaintiff refuses to sign a settlement agreement. This is not grounds for a Form 24 and a Form 33 must be filed in order for an evidentiary hearing on the issue.
3. Defendants seek to terminate or suspend temporary partial disability benefits pursuant to NCGS § 97-30. Accordingly, the statutory authority for a Form 24 hearing is found in NCGS § 97-18.1(c) and references only the termination or suspension of compensation paid pursuant to NCGS § 97-29 for TTD benefits. Therefore, a Form 24 is unnecessary to terminate or suspend temporary partial benefits.
4. Defendants seek to deny a previously accepted claim via a Form 24 application. This is an improper use of a Form 24. If they accepted the claim on a Form 60 and find additional information that would render it moot, utilizing the Form 24 process is inappropriate. At that point, a Form 33 requesting a full evidentiary hearing is the appropriate venue.
The Time Frame for a Form 24 Application: The time frame for a Form 24 is a very strict rule. Pursuant to NCGS § 97-18.1, an employee has 14 days to respond to a Form 24 application. Industrial Commission Rule 404 states that the response date placed on the Form 24 application should be 17 days from the date of service. This reflects the rule of three days for mail to be delivered. This is a hard and fast rule and if 17 days from the date of the application is not placed on the face of the document, the Industrial Commission will reject the application and a new one will have to be submitted. Once the Form 24 is properly served, and the employee timely objects to the Form 24, the Industrial Commission shall conduct an informal hearing within 25 days of the receipt of the objection unless time is extended for good cause. Following the hearing, a decision is rendered five (5) business days after the hearing. Please note that the Industrial Commission is very strict on waiting five days after the hearing to issue an order.
This completes our three part series on the Form 24 process. As always, if you have any questions or would like additional information concerning these issues, please feel free to contact Lewis & Roberts.