If I Paid the Wrong Compensation Rate on a Claim “Almost” Six Years Ago, Do I Have to Fix it Now?
This question comes out of the most recently published decision from the DOL – Liberty v. Town of Richmond, Op. No. 15-17W (undated as published). The carrier there paid the injured worker the wrong compensation rate under Department approved forms. Claimant’s counsel discovered the error and argued that the miscalculation was a material mistake of fact, which under statute would justify modifying the Form and a recalculation of benefits. (The Forms are generally otherwise binding, and can’t be modified). Had the error been discovered six years later, the claim for additional compensation might have been barred by the statute of limitations, but the claim was made five-plus years later, so the defense argued instead that the claim was barred by the doctrines of laches or estoppel. These doctrines allow the argument, essentially, that it wouldn’t be fair to undo the agreement now, “almost” six years later. The ALJ disagreed, finding it was no more the claimant’s fault than the carrier’s that the wage rate had been miscalculated in the first place. Does this mean that all prior calculation errors in the last 6 years are subject to review and modification? Maybe not. ALJ Phillips based her finding that there was a material mistake of fact on the fact that the Form 25 on which the original calculations were based did not identify the hours worked for any of the weeks identified. Had it, she reasoned, the parties would have known to exclude the weeks that were instead included in the AWW miscalculation. We like to think that had the Form been completed correctly, ALJ Phillips would have had to agree with the defense that the miscalculation was a mistake of law, and not fact, and that the Form could not therefore be modified. The practical lesson? Make sure the hours are filled out on your Form 25s.
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