SEAMON SAYS: BENEFITS MAY NOT BE CONTROVERTED DURING REEMPLOYMENT PROCESS
September 13, 2002
In March, the Alaska Workers' Compensation Board held that, once an employee has been found eligible for reemployment benefits, those benefits may not be controverted solely because the employer disputes the determination of the Reemployment Benefits Administrator (RBA), even if the dispute is due to new medical information that would render the employee ineligible for such benefits. Seamon v. Matanuska Susitna Borough School District, AWCB Decision No. 02-0045 (March 8, 2002).
Under AS 23.30.041(d), the eligibility determination of the RBA may be appealed within 10 days of the decision. In Seamon, the employee was found eligible for reemployment benefits, but the employer appealed the RBA decision after the 10-day appeal period had lapsed based on receipt of a 0% PPI rating from their IME. The employer also controverted reemployment benefits based on the PPI rating without waiting for a modified decision. Because the employer controverted benefits and "simply ignored the decision of the RBA," the controversion was found to be unfair and frivolous. The Board ruled that once the RBA has made a determination of eligibility for reemployment benefits, such benefits may not be controverted simply because the employer disagrees with the decision. The employer instead must follow appropriate appeal procedures or seek modification of the decision.
Seamon does not address the multitude of factual situations that may provide the employer with a good faith basis for controversion after the 10-day appeal period has elapsed, but conclusions can be drawn by looking at earlier Board decisions. Under Imhof v. Eagle River Refuse, AWCB Decision No. 94-0330 (December 29, 1994), the Board found that it had authority under AS 23.30.130(a) to modify the RBA's determination after the 10-day appeal period had elapsed, based on change in conditions, as long as the employer petitions the Board for review before one year after the date of the last payment of TTD, TPD, PPI, PTD, or death benefits.
Reading Seamon and Imhof together, the rules would be as follows: 1) Reemployment benefits may be controverted for good faith reasons at any time up until the RBA issues a determination of eligibility; 2) Once the RBA issues his decision, the decision may be appealed to the Board within 10 days for review under AS 23.30.041(d); 3) If the 10-day appeal period has elapsed, the employer can petition the Board for modification of the RBA’s decision under AS 23.30.130. But, Seamon says, until the determination of eligibility is reversed, reemployment benefits may not be terminated.
Benefits paid during the reemployment process can probably be recharacterized, however, where there are grounds to do so (i.e., from PPI to the lower stipend rate). Thus where an employee has been deemed eligible for reemployment benefits, and is subsequently assessed a 0% PPI rating, PPI could be considered exhausted, and .041(k) stipend could then commence until the RBA's decision is modified.
The employer may still controvert reemployment benefits for reasons unrelated to eligibility, such as noncooperation under AS 23.30.041(n).
The full text of this decision is available at: http://220.127.116.11/workcomp/2002/02%2D0045.doc ======== We are pleased to offer this information to help keep you informed. But since we are lawyers, we include the following caveat: the information contained herein is not intended as legal advice. Independent research and analysis may be required in order to determine what effect recent decisions or changes may have on your unique situation.