Written by Francie Belton Georges, Esq.
In workers’ compensation cases, a file can remain open for years following an evidentiary hearing. In cases where the Commission enters an Award granting the employee wage-loss benefits for an indefinite period of time (referred to as an “open award”), the employee has the right to receive those wage-loss benefits for as long as the award remains outstanding or “open.” The employer and/or insurer bear the burden of filing an application with the Virginia Workers’ Compensation Commission to terminate the open award. So, how do you stop the bleeding?
There are only two ways to terminate an open award: Termination by Agreement or Termination without Agreement.
Termination by Agreement
The easiest way to terminate the open award is by agreement. If you are lucky enough to have the employee agree that the open award should be concluded and if the employee is willing to sign a Termination of Wage Loss Award (“TWLA”), then the award can be terminated quickly and easily. Note, however, that a TWLA can be filed only when: (a) the employee has actually returned to work at a wage equal to or greater than the pre-injury average weekly wage, or (b) the employee was capable of returning to his pre-injury work (i.e., he was released to return to pre-injury work by the doctor. It does not matter if he actually does return to work. The release by the doctor is the key). In addition to the filing of the TWLA form, the employer/insurer will have to produce documentary proof of the employee’s release to return to pre-injury work. Without documentary proof, the TWLA will usually be rejected by the Commission. If the employee has been released to full duty with no restrictions, this would typically include the medical record documenting the full duty release.
Termination without Agreement
If the employee delays or refuses to sign a TWLA and/or there are other grounds to justify modifying or terminating an open award, the employer/insurer may file an Employer’s Application for Hearing. The Application must state: (1) the grounds for relief sought; and, (2) the last date through which compensation was paid to the employee. These two elements are intertwined in that the specific grounds on which the employer/insurer seeks to modify or terminate the open award will determine the date through which the employer/insurer must pay the employee prior to filing the Employer’s Application with the Commission. Like with the TWLA, the employer/insurer must attach documentary proof of the grounds for the Employer’s Application. This typically would include a letter from the employer documenting the employee’s return to work and rate of pay or his refusal of selective employment, a report from a medical provider indicating the employee refused medical treatment, or a letter from the vocational rehabilitation provider indicating how the employee failed to cooperate with vocational rehabilitation efforts, etc. If documentary proof is not included with the filing of the Employer’s Application, it will be rejected by the Commission.
The following is a summary of the grounds for filing and the dates through which the employee must be compensated in order to allow for the filing of an Employer’s Application:
Pay the employee through the date of return to work if:
- The employee returned to pre-injury work;
- The employee returned to work in a light duty capacity;
Pay the employee through the date of filing of the Employer’s Application if:
- The employee was released to return to pre-injury work;
- The employee’s current disability is unrelated to the accident;
- The employee failed to cooperate with vocational rehabilitation;
- The employee fails to provide notification of a change of residential address (Note that you may only be able to pay indemnity through the date you learn the indemnity checks are returned as undeliverable to the address of record. In this instance, you must explain that you are unable to issue payments to the date of filing of the Employer’s Application because of the employee’s failure to give you the proper address.)
- The employee fails to report an incarceration.
- The employee fails to report a return to employment or increase in earnings (Note that if you have not paid compensation after the employee’s return to employment, then he would only be paid through the date of the return to work—not the date of filing of the Employer’s application).
Pay the employee through the date of the refusal or 14 days before the filing of the Employer’s Application, whichever is later if:
- The employee failed to report to an Independent Medical Examination
- The employee refused the employer’s offer of selective employment;
- The employee refused reasonable and necessary medical treatment;
Upon the filing of a well-supported Employer’s Application, the employer/insurer can immediately suspend payment of the employee’s indemnity benefits. The suspension will remain in effect until an evidentiary hearing on the Employer’s Application is held and a decision is rendered by the Commission.
- Practice Pointer: When an employee who is on an open award returns to work or is released to return to pre-injury work, it is good practice to immediately file an Employer’s Application along with circulating the TWLA. Paying the employee through the date of filing an Employer’s Application immediately stops the employer/insurer’s obligation to pay indemnity. Many times, an employee will refuse or simply delay signing and returning the TWLA. However, the employer/insurer’s obligation to pay pursuant to an open award continues until the filing of the TWLA or an Employer’s Application. By filing the Employer’s Application, the employer/insurer’s obligation to pay indemnity is immediately suspended. If the employee subsequently signs and returns the TWLA, the employer/insurer can file the fully endorsed TWLA and simply withdraw the Employer’s Application.