About those TTD Overpayments
And it’s Friday again, dear readers! We made it through yet another week and yet another weekend. So what can your humble blogger do to send you on your way into the embrace of Saturday and Sunday? Why not a blog post about TTD overpayment credit?
Unfortunately, there is typically a delay between applicant being permanent and stationary and defendant being advised of this fact. So, when applicant attends a QME examination and a report does not issue until 30 days later, it’s fairly typical for the defendant to continue paying TTD for those 30 days.
What’s more, even when the report is received, it is not atypical for it take time to review and process the report and take the necessary actions. So, if applicant was found P&S at a June 1, 2023 examination, but the report was not signed and served until July 1, 2023, and not reviewed by the defense attorney or the adjuster until July 5, 2023, TD could well have been paid for that entire period.
The recent panel decision of Newkirk v. Regents of University of California had just such a situation. Defendant filed a petition for TTD overpayment credit in the amount of $6,587.79. The WCJ awarded this credit and applicant appealed, which the WCAB rejected. Just as an aside, dear readers, Mr. Newkirk received two separate awards of 34% PD each related to two specific dates of injury.
There may be a restaurant somewhere, dear readers, in which the hosts have nailed slabs of grilled beef to the vaulted ceiling. That would be a situation where the “stakes steaks are high” and the Newkirk case probably would not be.
No, this isn’t a case about 100% PD, but it’s still an excellent panel decision to read as the WCAB lays out situations in which awarding TTD credit against PD benefits is appropriate, and cases in which it is not. For example, the Newkirk panel made repeated reference that when a TTD overpayment credit “would have totally exhausted the applicant’s permanent disability indemnity” such an award may be inappropriate.
Other factors the panel decision considered were the cause of the overpayment (defendant’s inadvertence, applicant’s calculated actions, or neither). In the Newkirk case, it was truly neither.
Your humble blogger is happy the defense was awarded a TTD overpayment in this case, of course, but let’s look at the downsides. The time of the WCJ and the WCAB was taken up by this dispute, both applicant and defense counsel invested time and energy to this issue, and, of course, there are the monetary costs involved. Presumably, if defendant had known applicant is P&S on the date of the exam, it would have stopped TD payments, started PDAs, and this issue would not have existed at all.
Surely, there must be some way for the QME to provide a “check-the-box” cover page to the parties on the date of the exam on such issues! Treating physicians have no difficulty providing a work status/work restrictions slip to applicant and defendant on the date of the appointment, why not the same for a QME on such issues?
Perhaps the next round of “reforms” or new regulations pertaining to QME should include directions with a 24-48 hour requirement to provide a cover page to the parties? Such litigation could be avoided, no doubt.
Have a great weekend!