February 9, 2018
In the past week I had different clients bring me the beginning and the end of a problem unique to Mississippi workers’ compensation claims. The problem is easily solved but only with strong recognition of the facts and law up-front and diligence documenting the claim on the back-end.
The front-end issue was that a self-insured employer had an injured worker with significant restrictions. The employer wanted to know if it should keep the employee engaged on very light duty in a created job (filing and answering phones). The light duty created job allowed the employee to receive a full paycheck and not receive worker’s compensation benefits. And while the employer received only minimum direct benefits from the actual employment, providing the job eliminated an employee sitting at home all day watching Andy Griffith re-runs, getting depressed and deconditioned from work, and obtaining lost wage benefits. My standard advice to employers is always offer light duty work even if the work is just to organize old paperwork, answer the telephone, or sweep out the shop. The benefits of providing light duty work are worthy of a separate post. Suffice to say that giving the employer that advice was easy but was my advice complete?
Within days I was retained on another case with a much more complicated and troublesome back-end issue. An employer had a former worker file a Petition to Controvert (lawsuit) in late 2017 claiming benefits for injuries that occurred in 2004 and 2006. She retired in 2009 from all employment after she had back surgery. She had never been paid workers compensation indemnity benefits. At first glance the employer/carrier could claim that the two (2) year statute of limitations had run on the case years ago since she did not file her claim for benefits in 2008 or even in 2011, within two (2) years after her surgery. But she had a smart attorney and she claimed that her case remained open all those years because she received wages in lieu of workers compensation benefits following both her injuries. According to her, the employer brought her back to work after her injuries doing extremely light duty work by sitting at her desk “doing nothing”. She claimed she did not earn those wages and the wages were paid in place of paying her worker’s compensation benefits.
As in most states Mississippi workers compensation claims have a general statute of limitations of two (2) years. But in Mississippi if an employer or carrier pays the injured worker any indemnity or “lost wage” benefits, then the statute of limitations is tolled forever unless and until the employer or its insurance carrier properly files a B-31 form with the Mississippi Workers Compensation Commission. Filing the B-31 form starts a new one (1) year statute of limitations running. But Mississippi law recognizes that wages paid in place of indemnity payments also work to toll the statute of limitations from running – just as if the wages were the actual payment of benefits. I explain this trap here: https://youtu.be/pJTFzhI48l0 This is a bad claim for any employer or carrier and the havoc a surprise claim like this has on insurance reserves is worse. I expect that we will soon have a trial on how much actual work she performed while on light duty which occurred over a decade ago. The evidence will be old and spotty at best.
So, after discussing the wages in lieu issue on the second case, can you guess what I did? If you guessed called up the client from the day before and reminded her to file a B-31 at the end of the light duty work then you guessed right. Return to work programs are great for reducing claim costs. But very light duty work periods should probably be followed with the proper filing of a B-31 form. Otherwise, you could be the employer and carrier in above ten years from now.