In workers’ compensation cases, an employee/injured worker may be
entitled to temporary indemnity benefits from the workers’ compensation
carrier following an industrial accident. If such benefits are paid, overpayments
of such benefits may occasionally occur due to calculation errors or subsequent
adjustments in the injured worker’s average weekly wage and corresponding
compensation rate. If this occurs, how is this overpayment recouped? Can
the carrier just keep all of any future indemnity benefits until the overpayment
is recouped?
Pursuant to Florida Statute Section 440.15(12), “if an employee has
received a sum as an indemnity benefit under any classification or category
of benefit under this chapter to which he or she is not entitled, the
employee is liable to repay that sum to the employer or the carrier or
to have that sum deducted from future benefits, regardless of the classification
of benefits, payable to the employee under this chapter; however, a partial
payment of the total repayment may not exceed 20 percent of the amount
of the biweekly payment.”
For example, under this statutory section, if it is determined by an adjuster
that an overpayment of $1,000.00 in indemnity benefits has occurred due
to an incorrect calculation of the average weekly wage, what should the
adjuster do next? If the injured worker still receives indemnity benefits
of any variety, which includes impairment benefits, the adjuster/carrier
would be entitled to recoup this overpayment from each biweekly check
at a maximum of 20% per check until the $1,000.00 has been recouped in
full. Let’s say the injured worker is receiving $500.00 in indemnity
benefits every two weeks, the carrier would be entitled to reduce this
total by 20%, or $100.00 every check until the $1,000.00 is recouped over
a period of 10 checks or 20 weeks.
Of course, the problem typically encountered is what if an overpayment
has occurred and no indemnity benefits, of any variety, are being paid
to the injured worker? In this situation, the carrier would either have
to wait and recoup the overpayment out of any future indemnity benefits
which may come due and owing to the injured worker or the more likely
scenario would be to use the overpayment as a bargaining tool in settlement
negotiations.
Bottom line is that overpayments happen and you want to make sure that
it is properly recouped pursuant to the workers’ compensation statute.