Claimant attorneys are currently arguing (and prevailing) that the carrier cannot recoup overpaid temporary income benefits from impairment income benefits even if the overpayment is not due to carrier error. The ambiguity comes from a change in Rule 128.1(c) and subsequent Appeals Panel decisions. Previously, the Appeals Panel held that a claimant is entitled to the benefits for which he/she is due: no more - no less. The Texas Workers’ Compensation Commission (as it was then known) adopted a new Rule 128.1(e) for the limited purpose of creating a specific mechanism for carriers to recoup overpaid temporary income benefits based upon an average weekly wage miscalculation. The Appeals Panel indicated this new rule trumped all previous Appeals Panel decisions regarding recoupment.
Hearing Officers are relying on this decision and finding that carriers are not entitled to what they call “equitable recoupment,” citing Appeals Panel Decision numbers 070271 and 033358-s. For example, one Hearing Officer’s decision held a carrier may not take credit for overpaid temporary income benefits when the designated doctor certifies an earlier MMI date. Hearing Officer’s are reading the Appeals Panel decision and case law to state there is no statutory authority to recoup overpayment of income benefits.
Based upon these Hearing Officer’s decisions, and the Appeals Panel refusal to reverse, carriers, employers, and tax payers, could overpay millions of dollars per year in additional income benefits not otherwise owed to injured workers. Statutorily, claimants are entitled to benefits when and as they accrue. Nothing in the statute indicates they should receive more benefits than the amount to which they are entitled. This is true even if the carrier did not timely receive the designated doctor report and therefore paid temporary income benefits in excess of the amount statutorily due.
Carriers wishing to take a proactive role must consider a rule petition or legislative changes. Section member Matt Lewis wrote an interesting article in the Texas Workers' Compensation Section newsletter from the persepctive of a claimant's attorney. Should claimant's receive more money than they are owed?