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  • therogakreport
    One of my readers writes: Dear Larry: Our insured has an employee who had a prior worker s compensation claim in which he was deemed permanently partially
    Message 1 of 2 , Jun 1, 2004
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      One of my readers writes:

      Dear Larry:

      Our insured has an employee who had a prior worker's compensation
      claim in which he was deemed permanently partially disabled. The
      Insured took him back to work at a lesser salary and different job,
      and he was involved in a new accident with our insured's truck
      while he was working. The prior claim is with CNA and he is receiving
      $300 week from them. The worker's compensation rep for the new loss
      is only paying medical since she states he is already collecting on
      the prior loss for wages. The claimant is now coming to me under my
      insured's No Fault to collect wages. He is not being paid wages for
      this accident from worker's compensation, and he feels I owe him the
      $2000/month maximum No Fault benefit. Do I owe him anything under No
      Fault if worker's compensation is not paying any wages?

      Larry's Opinion:

      This is a very interesting question, and the law does not provide an
      exact answer. A key question is: why isn't workers comp paying him
      lost wages for the second accident? If he can't work because of the
      second accident, he should be getting something from WC in addition
      to the payment for permanent partial disability (PPD), because the
      payment he gets comes under the WC schedule for the disability, not
      lost wages (I presume). Did he challenge the denial of lost wages to
      the Workers Comp Board? If so, what was the ruling? If the Workers
      Comp Board ruled that he was not entitled to WC lost wages, then he
      is probably not entitled to no-fault lost wages either (he will be
      bound by the WCB decision). Even if the WCB held that he WAS
      entitled to WC lost wages, you could still go to arbitration with the
      claimant because, although he is bound by the Board's decision, you
      are not (because you were not a party to it). Your worst-case
      scenario is that you would be paying him $2000/month minus the $300
      he is receiving from WC for a net No Fault lost wage payment of
      $1700/month, net. But, since WC is primary to no-fault, I would DENY
      lost wage benefits and let him go to No Fault arbitration against
      you, because there is something odd about the fact that WC won't pay
      him lost wages. In other words, if he was owed lost wages because of
      this accident, Workers Comp should be the one to pay it. If you lose
      the No Fault arb and have to pay him, you can then bring loss-
      transfer arbitration against the WC carrier and you should get your
      money back.

      Larry Rogak
      ----------------------------------------------------------------------
      THE FINE PRINT:

      Larry Rogak will gladly provide his opinion regarding any claim
      situation you may have. But, keep in mind that by providing an
      opinion at no charge, no attorney-client relationship is created with
      regard to the question you ask. Formal written legal opinions, based
      on documentation you provide, are available for a fee.
    • therogakreport
      Dear Larry: We have an ongoing debate in our office about mailing NF verification forms (NF3, NF4, etc.). Some folks are of the opinion that mailing the forms
      Message 2 of 2 , Jun 2, 2004
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        Dear Larry:

        We have an ongoing debate in our office about mailing NF verification
        forms (NF3, NF4, etc.). Some folks are of the opinion that mailing
        the forms at the inception of the claim (before the NF2 – Proof of
        Claim is received) can be an estoppel issue. Basically, are
        we "accepting" the claim without the Proof of Claim if we send out
        the application? In addition, the NF3 has an assignment of benefits,
        thus we would be required to pay any billing upon receipt of the NF3
        (whether the NF2 was submitted or not). Others argue that mailing the
        verification forms upon receipt of the loss (and prior to receipt of
        the NF2 – Proof of Claim) will not place us in an estoppel
        situation. We would greatly appreciate your opinion.

        Larry Responds:

        Fortunately, the answer to your question is simple: there is no
        estoppel in No-Fault. You are required by regulation to send out
        application forms within 5 days of receiving notice of a claim.
        Sending out the application does not estop you from denying the bills
        when they come in. At worst, sending out the application "admits"
        that you received notice, and therefore eliminates the issue of
        whether you received notice of the claim. But it doesn't obligate
        you to pay any bills. You use the term "accept the claim," but at
        most, sending out the application closes the question of whether you
        received notice. Let's say you got notice of the claim later than 30
        days after the occurrence. You still have to send out the
        application. But when the bills come in, you can deny them for late
        notice. From the time you receive each bill, you have 10 days to ask
        for further verification (if necessary), then 30 days to pay or deny
        based on the responses you receive. You should not be sending out
        verification letters (the NF-3 for doctor treatment, and the NF-4 for
        hospital treatment) until you receive a bill, because the purpose of
        a verification letter is to document, expand upon, and supplement the
        claim information so that you can decide whether or not to pay the
        bill. Sending a verification letter before receiving a bill, while
        not necessary, does not put you into an estoppel situation because
        your time to pay or deny the claim is always at least 30 days from
        the time you receive the bill or from the date you receive the
        response to your verification letter, whichever is later. It sounds
        like you are causing yourselves unnecessary confusion by sending out
        NF-3 and NF-4 forms before you receive a medical bill. Only send
        these forms to a doctor/hospital after you receive a bill from them.
        Sending a verification form too early is a harmless mistake. Sending
        it too late (i.e., more than 10 days after receiving a bill), cuts
        down your time to pay or deny the bill by the same number of days
        your verification letter is late (e.g., sending the NF-3 five days
        late means you only have 25 days to pay or deny the bill once the
        verification response comes in).

        Larry Rogak

        ----------------------------------------------------------------------
        THE FINE PRINT:

        Larry Rogak will gladly provide his opinion regarding any claim
        situation you may have. But, keep in mind that by providing an
        opinion at no charge, no attorney-client relationship is created with
        regard to the question you ask. Formal written legal opinions, based
        on documentation you provide, are available for a fee.
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