By John F. Sharpless
I don’t think Steely Dan was contemplating the DWC-19s when they wrote “Hey Nineteen” and crooned about how the Cuervo gold and fine Columbian make tonight a wonderful thing! But we all have come to know and love the Employee Earnings Reports (hereinafter “DWC-19”s) which are sent to our clients in just about every workers’ compensation case. They can be can be a pre-cursor to a fraud claim, suspension of benefits, and potential defense to TPD or other indemnity; and like Cuervo Gold and fine Columbian, they should not be taken lightly. However, these forms are frequently misunderstood or misused by the claims-handling entities.
Obligation to Complete the Form.
The DWC-19 is only required to be completed by the claimant if there is some indemnity benefit being sought by the claimant or currently being paid out by the Carrier. Obviously, the DWC-19 is intended to be a means for the carrier to find out if the claimant has income, earnings, unemployment or other remuneration which may impact the Carrier’s responsibility for payment of indemnity benefits. As the form and administrative rules state, refusal to complete and return the signed form within 21 days of receipt is cause for the E/C to suspend compensation.
It should be noted that the claimant only is required to complete the DWC-19 if there is an antecedent request by the E/C. Furnishing the DWC-19 is a condition precedent to the injured employee’s obligation to complete and return the forms. Perdue v. Sebring Marine Ind. Inc., 82 So.3d 816 (Fla. 1st DCA 2011); Republic Waste Services, Inc. v. Ricardo, 68 So. 3d 934 (Fla 1st DCA 2011) Additionally, with regards to TPD, the Employer/Carrier is required to send the letter set forth in F.A.C. 69L-3.01915 that tells the Claimant about the DWC-19 and obligations to return it. While Perdue and Ricardo make it clear that the furnishing the form is required before the Claimant must complete it, the letter is also required according to the administrative rule. It states: “Letter requirement – The claim administrator shall mail an informational letter to the employee and employer within 5 business days after the claim administrator’s knowledge of the employee’s release to restricted work.” F.A.C. 69L-3.01915(1) See Also McKee v. Ross M. Valdez OJCC #:11-001834WJC – E/C did not send the required letter and the actual letter did not provide sufficient notice to the claimant of her obligations to return form and consequences, therefore TPD was payable.)
If DWC-19s are sent to the employee and the employee fails or refuses to return them to the E/C within 21 days of receipt, the E/C may suspend benefits. TPD benefits are not due until such time as the employee furnishes the signed form. Jack Feagin Electric, Inc. v. Hallmark, 894 So.2d 1083 (2005); F.A.C. 69L-3.021. In Hallmark the JCC erroneously found that the Claimant had an entitlement to TPD (and therefore an attorney’s fee entitlement) even though the Claimant had not signed and returned the DWC-19 to the E/C. The First DCA reversed and held that the TPD were not due ripe and owing until the DWC-19 was returned. The JCCs have interpreted this to establish that penalties and interest will run from the date of the return of the form where a Carrier properly suspended benefits and no penalties or interest are due during the period of suspension. (See Boggio v. Koning Restaurants, OJCC#: 10-005462HHH; Gonzalez v. Home Depot, OJCC#10-010599EDS; Burks v. Infiniti Resource Mgmt, OJCC#: 09-029378NPP; Jeffries v. C&S Roofing, OJCC#: 09-013869)
Additionally, a denial of TPD based upon the employee’s failure to return the DWC-19s is an affirmative defense that must be raised by the Employer/Carrier and absent that, the Claimant has no obligation to produce DWC-19s. In other words, the furnishing of a DWC-19 is not part of the prima facie case for TPD. Rucker v. Just Brakes, 75 So. 3d 807 (Fla. 1st DCA 2011).
Suspension of Benefits is the Only Repercussion of a Failure to Timely Return the DWC-19
The DWC-19 is frequently sent out to the Claimant and counsel when there is no indemnity being paid out. The DWC-19 is being used as a discovery tool in these instances. For example, the E/C may know that the Claimant quit, was fired or left the employer where the accident occurred and they want to find out where the Claimant is working, the employer’s address, how much the Claimant is making, etc. Many defense attorneys will send DWC-19s with their Notice of Appearance, Request to Produce, Social Security/Unemployment Releases, etc. in every case single case regardless of the Claimant’s indemnity status. The DWC-19s should be ignored in the instances where indemnity is not being paid or sought. (i.e. the Claimant is earning more than 80% of his AWW and no PFB is pending on TPD). The Claimant cannot be compelled to complete a DWC-19 in these circumstances. An uncompleted form has one simple repercussion and that is that the Claimant’s compensation may be suspended during the period if they do not complete the form. If they are not receiving or claiming compensation, then there is nothing to suspend.
Requesting Party’s obligations. We frequently are sent DWC-19 forms that are blank, undated, unsigned and without the “period to be reported” field completed. The form itself has seven sections (Roman-Numeralled I through VII). The “Requesting Party” has the obligation to complete Sections I and VII. Section I entitled “Identification of the Parties” (completed by the Requesting Party) requires the Employee’s Social Security Number, Employee’s Name, Date of Accident, Employee’s Address, Accident Employer’s Name and Address and the Claim-Handling Entity Name & Address. Similarly, Section VII is also to be completed by the Requesting Party and requires “Requesting Party’s Name, Title, Requesting Party’s Signature, Requesting Party’s Address & Telephone Number and the Date”. (These are very rarely signed as the Carriers use automation to merge the form.) If this form is not signed and properly completed by the Requesting Party, an argument can be made that the form is invalid. While I am not suggesting that the claimant ignore an unsigned or technically incomplete form, a quick reply email to the adjuster or defense attorney that the form is incomplete or invalid, could be useful at a later date if the Claimant later fails to return the form in a timely fashion.
Section II of the DWC-19 is entitled “Notice to Employee” and notifies the claimant of his or her obligation to report all earnings of any nature. It is silent as to whether the “TIME PERIOD TO BE REPORTED” section is to be completed by the “requesting party”, but clearly it is a mandatory section that the requesting party needs to complete. Obviously, the Carrier is the one seeking the claimant’s reporting therefore they need to specify what past period is to be reported. Any form that is blank as to the “PERIOD TO BE REPORTED” should be returned with a request that the “PERIOD TO BE REPORTED” blanks be completed by the Carrier.
Returning the DWC-19 is Not Necessarily a Condition Precedent to Receipt of TPD
According to the Administrative Code, “the claims handling entity shall investigate an employee’s post-injury earnings, to determine the amount of temporary partial disability benefits for which the employee is entitled, and to ensure the timely payment of those benefits.” F.A.C. 69L-3.01915(2) However, in reality, the statutory scheme for biweekly payments and Rules are not set up to allow the Carrier to only pay TPD benefits after receipt of a properly sent DWC-19. TPD benefits are due biweekly whether the Claimant has returned to work or not. (If the Claimant has returned to work earning less than 80% of the preinjury wage, the first check is due 7 days after the last date of the biweekly work week, and then thereafter are due every two weeks.) F.S. 440.15(4)(C) and F.A.C. 69L-3.01915(2)(a)(b). While the TPD is payable biweekly, the DWC-19 only needs to be returned within 21 days. Additionally, the claims handling entity may require the employee to send Form [DWC-19] no more than once a month. F.A.C. 69L-3.021(4). Therefore, there is absolutely no way for the diligent adjuster to comply with these rules, receive the reported earnings from claimant, and timely process biweekly checks. Adjusters who withhold TPD that is due because they are awaiting the return of the DWC-19s are in the wrong unless they have properly suspended benefits after sending the letter and form and waited the 21 days from when the claimant received it.
There is support for the fact that the claims handling entity should continue paying ongoing TPD regardless of their ability to secure completed DWC-19s which is contained in F.A.C. 69L-3.01915(2)(c) which addresses where there is no confirmation of earnings. It states:
“(c) No confirmation of earnings – At any time the claim administrator is unable to confirm earnings information from the employee’s post injury employer or employers, the claim administrator shall calculate benefits based on the last wage information submitted or obtained and continue to pay temporary partial disability benefits.” F.A.C. 69L-3.01915(2)(c) (emphasis added)
Clearly, these rules reflect two things. First, regardless of their ability to have the employee complete a DWC-19, they should be contacting the employer to confirm the claimant’s earnings. Many claim’s handlers ignore this obligation and seek to rely upon only the claimant for the reporting of earnings. Second, the rule reflects that there will be times when the TPD check needs to be paid and the claims administrator will not have confirmation of the employee’s earnings. Per the above rule, checks should continue based upon the last wage information submitted or obtained. The Carrier can always rely upon the repayment provisions of F.S. 440.15(12) to recoup any overpayment that may have been created by not having confirmation of earnings at the time payment was issued.
Pre-Dated DWC-19 Forms.
DWC-19s are frequently sent that are pre-dated for time periods that have not yet occurred. (For Example, on October 22, 2018 a DWC-19 for completion is received that is pre-marked for the month of November 2018.) This is improper procedure as the Claimant has 21 days from receipt of the form to complete and return it; but if the form is sent in advance of the period, the Claimant cannot complete it until the period is complete. As one JCC put it, “it would have required clairvoyance on her part to do so”. (McKee v. Ross M. Valdez supra). I also recently received a letter from an adjuster to a claimant regarding impairment benefits to be paid accompanied by 5 pre-dated DWC-19 forms to complete and return in the future corresponding to the weeks when impairment benefits would be paid. This adjuster has attempted to effectively erode the Claimant’s 21 day period to report for all the subsequent weeks, as the 21 days runs from the date the forms were initially received.
DWC-19 Forms Sent for Past Periods
The statute and Rules are silent as to whether the failure to report for past periods can cause a suspension of current benefits. For example, the defense attorney gets referred a file and sees that the adjuster sent the TPD letter and one DWC-19 18 months prior when the Claimant was first assigned restrictions. So now the defense attorney sends 18 DWC-19 forms for the entire prior 18 month period for which the claimant has already been paid benefits based upon zero earnings. For those past periods indemnity cannot be “suspended” because the checks were paid and deposited. Can the carrier suspend current benefits based upon the claimant’s failure to return DWC-19s regarding past periods paid? There are arguments on both sides, but the claimant should tread with caution here as it may be much less of a headache to complete the forms compared to having benefits suspended and waiting the 210 days or more for a hearing. Additionally, the plain language of the administrative code does not limit the right to suspend to the reporting of current or past periods. As pointed out above, as TPD must be paid biweekly while the claimant only has to complete a DWC-19 once a month, it is inevitable that the carrier will be sending DWC-19 forms for periods that are in the past.
What Needs to be Reported on the DWC-19?
One of my biggest criticisms of the DWC-19 is that it may be very unclear to an employee, who may be of limited education, what constitutes “earnings of any nature” or “income”. Section II of the form provides notice to the Employee of the obligation to report “all earnings of any nature”. But the question it then asks the claimant is whether he has received “income” from any source other than workers’ compensation. (Why did they choose to switch from the obligation about “earnings of any nature” to a question about “income”?) If a “no” answer is checked, the employee is to sign and date the form and they are done. Pop open a beer and kick your feet up on the couch because there is nothing more to answer. If the form didn’t end the inquiry there, and the employee was to read a little further, they might see a little better what may be considered “income”. If a Claimant is being accused of failing to report Social Security, unemployment, workers’ compensation from another carrier or benefits from any other source, a good place to start the inquiry is whether the Claimant checked the “no” box and did not read the rest of the form. Next, did the Claimant think any of those things would be considered “income”?
“Income” is not defined in the form and it is not defined in Chapter 440 either. It is safe to say that most employees will understand that the form is at the very least asking about wages or earnings from working. However, when we go beyond taxable income from wages, there are many types of “income” that a reasonable person would assume are beyond the scope of the form. For example, passive income from investments, stocks, bonds, dividends clearly have no bearing on workers’ compensation benefits. Additionally, capital gains, resale of real property or personal property (ebay or Let it Go) can generate taxable income, but have no bearing on workers’ compensation.
Self-employment or employee-owned businesses are more problematic. Does a claimant who spends several hours in a week performing work activity but is operating at a net loss, have any income? Clearly, business revenues are not akin to profits or income, but does the Claimant have a duty to report them? What about the Uber and Lyft drivers who are not employees but independent contractors with their own businesses? Do they need to report the payment from Uber/Lyft, or can they safely deduct their mileage, cell phone and other expenses and then report only their profit? Section VI (the catchall “wages, income or benefits from any other source” section) of the form is clearly not cut out to handle reporting of business or self-employment income. In a very small space it simply asks for the “source of wages, income or benefits”; “period benefits received”; and “total amount”. In my opinion the claimant’s obligation is to report their net profit in the space as that is their “income”.
Because the form is so unclear and subject to multiple interpretation, the best practice is to “over-report” anything that is a close call. The number one goal is to have the claimant complete the form in a way that will never be used as a fraud allegation. If there is self-employment of any kind, Social Security, LTD or the like, report it on the form. Reporting it is no way a concession that it is earnings for TPD calculation. However, a failure to report something that does turn out to be earnings could result in a fraud allegation.
Attaching Documentation to the DWC-19
In two areas the DWC-19 states “if necessary, attach additional earnings documentation”. This is interesting because it is relying on the person reporting to determine when it would be necessary to attach documentation. Obviously, it is not required that a person attach documentation because, the form would state so if it were. However, I prefer to always have the Claimant’s paycheck stub attached with the claimant just putting “see attached” on the form itself. This way, you don’t have the claimant making errors in writing down their “net” instead of “gross” or making any scrivener’s errors.
Conclusion
The DWC-19 may be an imperfect and fairly confusing form for an injured worker to deal with. While it is critical that the forms are completed and returned to prevent suspension of benefits, Counsel for the Claimant should be vigilant in not allowing the E/C to use the form in a manner that is not supported by the administrative rules.