Repeat after me: Send them the forms.  Send them the forms.  Send them the forms!!!

What forms, you ask?  Why the DWC-19 forms, of course!  DWC-19 forms are the wage loss forms that Claimants must complete (under penalty of perjury) indicating to the Carrier that she is not earning any wages or less than 80% of her AWW and is entitled to temporary partial benefits.

An E/C does not have to pay TPD benefits until it receives the completed DWC-19’s forms from the Claimant.  However. . . alot of E/C’s forget to send Claimant the forms.

Let this case be a lesson . . .

In Rucker v. Just Brakes, Claimant sought TPD benefits for various time periods.  The E/C denied the benefits on the grounds that Claimant was at MMI and/or there was no nexus between the compensable injury and Claimant’s wage loss.

The Judge found for Claimant but also found that the E/C did not owe penalties and interest for late payment of TPD since Claimant never completed a DWC-19 form detailing wage loss for the dates he alleged TPD.  The First DCA reversed on the grounds that the E/C never raised this defense.  For many in the legal arena, the thought was the completion of DWC-19’s was an administrative procedure that did not require an affirmative defense by E/C.  

In fact, Florida Administrative code 69L-3.01915(1)(b) requires E/C’s to inform Claimants that TPD can be suspended if they fail to complete a DWC-19.  Yet, the key word in that rule is “if requested” by the E/C.  If an E/C does not request Claimant fill out these forms and send them to Claimant then the E/C loses its right to suspend TPD benefits or avoid penalties and interest.  Section 440.15(4) gives E/C’s this power.  Without the request, there is no power to suspend.

For many Carriers, standard operating procedure is to send out DWC-19’s to Claimant after the Employer initially reports the claim.  This is great, but Carriers need to send them out more, like the first time a doctor releases a Claimant to work with restrictions.  Without the act of sending Claimant the forms, an E/C cannot raise the defense that Claimant never completed the forms.

And now, per the Rucker case, an E/C must provide evidence to a Judge that the DWC-19’s went out.  For example, lets say in Rucker that the Judge never mentioned the DWC-19’s and the E/C had to obey the order awarding TPD.  How is the E/C to supposed to calculate the amount?  Supposed Claimant did work a portion of that time.  That means the E/C gets an offset on those earnings.  But, since they presented no evidence at trial or never even sent the forms to Claimant, they cannot claim that offset and must pay the entire amount as if Claimant did not work during that period.

Employers: you can send the forms to Claimants as well.  As long as Claimant has the forms and fails to complete them and return them to the E/C, there is no TPD liability.

So, once again: Send them the forms.  Send them the forms.  Send them the forms!!! 

And, once again, here is the DWC-19 form.

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