Overpayments: Division IME Backdating MMI

Pursuant to C.R.S. § 8-40-201(15.5), there are three possible categories of overpayments: the first category is when a claimant receives money “that exceeds the amount that should have been paid”; the second category is for money received that a “claimant was not entitled to receive”; and the final category is money received that “results in duplicate benefits because of offsets that reduce disability or death benefits” payable under the Workers Compensation Act.

In Wheeler, claimant sought review of a supplemental order from the Administrative Law Judge (ALJ) which determined respondents were entitled to recover an overpayment totaling $11,621.08.

Claimant suffered an admitted low back injury in a motor vehicle accident for which she was paid temporary total disability (TTD) benefits in the amount of $285.43 each week beginning on September 29, 2015. Claimant was placed at maximum medical improvement (MMI) on January 31, 2017 with an impairment rating and respondents sought a Division Independent Medical Examination (DIME). In relevant part, the DIME physician found claimant to have reached MMI without impairment as of October 3, 2016. Therefore, respondents filed a Final Admission of Liability (FAL) consistent with that opinion and in that FAL asserted an overpayment in the amount to $11,621.08 for TTD benefits paid during the period of October 3, 2016, when the DIME physician found claimant at MMI, and July 14, 2017, the last time TTD was paid out prior the filing of the FAL. Initially, the ALJ entered an order denying respondents’ assertion of the overpayment, but after a petition to review of the ALJ’s order arguing the ALJ’s ruling was contrary to precedent, the ALJ issued a supplemental order which agreed with respondents. Thereafter, the claimant appealed to the Industrial Claim Appeals Office (Panel) and filed a petition to review the ALJ’s supplemental order.

On appeal, the claimant argued that the ALJ erred in determining she had been overpaid asserting that the TTD benefits she received from October 3, 2016 through July 14, 2017 were benefits to which she was entitled at the time they were received. She argued that when respondents challenged the authorized treating physician’s (ATP) finding of MMI and impairment, they were required to continue to pay those benefits while waiting for the DIME process to conclude as none of the statutory conditions allowing respondents to cease paying TTD benefits applied to her during that period.

The Panel found however that once the DIME physician determined claimant reached MMI on October 3, 2016, the TTD benefits paid after this MMI date did constitute an overpayment under C.R.S. § 8-40-201(15.5) because benefits received after the date of MMI constitute amounts a claimant is not entitled to receive or that exceeded the amounts that should have been paid. Furthermore, the Panel explained that C.R.S. §8-40-201(15.5) specifically provides that “it is not necessary the overpayment exist at the time a claimant received the disability or death benefits under said articles.” The Panel therefore concluded the statute necessarily contemplates that overpayments may result from a subsequent determination that a claimant was not entitled to receive such benefits and as such, respondents were allowed to recover the overpayment.

Michelle Wheeler v. The Evangelical Lutheran Good Samaritan Society, W.C. No. 4-995-488 (ICAO April 23, 2019)

Would you like to know more? Contact Gail Benson at gbenson@pollartmiller.com or 877-259-5693.


From the May 2019 Newsletter