by Alissa C. Atkins, Esq.

As noted above, the process that adjusters and employer/insurers will use to file the WC-104 forms has changed. Previously the form was not filed with the Board until the unilateral reduction in benefits from TTD to TPD took place. Now that the Board requires that the form be filed via mail at the same time it is served on the claimant and his/her attorney, some adjusters are noting a compliance problem. The WC-104 needs to be filed with the Board “no later than 60 days from the date the employer was released to work with restrictions by the employee’s authorized treating physician.” Board Rule 104(a).

This has created a problem in cases where employees who are receiving TTD benefits are released to return to work very early in the claim. This becomes a problem when claims are filed through the EDI system, because the Board is currently running nearly two months behind in processing EDI claims. This results in having open claims but no Board number has yet been assigned. Board Rule 104(c) requires that any document filed with the Board contain the employee’s name, date of injury and Board claim number. This section specifically indicates that any document that does not contain this information will be rejected by the Board. However, we have been contacted by adjusters who have completed new WC-104 forms and want to file them with the Board as required by the new Rule. However, if the EDI claim has not yet been processed and therefore no Board number exists, the adjuster is stuck with an impossible task because the claim needs to be filed in a timely fashion but cannot be filed without the Board number.

To address this issue, we recently spoke with Cheryl Lowe at the State Board. Ms. Lowe is in charge of processing Board documents and explained that for the time being, adjusters can hold off on filing the form WC-104 with the State Board until they have a claim number, because it is primarily important that the form be delivered to the claimant and the claimant’s attorney. Once the Board number is assigned through EDI, the form can then be filed using the newly assigned State Board number. However, since the Board took the time to change its own Rule, this obviously suggests that it is not only important to file the form with the claimant and his attorney but also the State Board.

We have explained our concerns to Ms. Lowe, and she conceded the problem. She is working with other members of the Board to create a temporary plan that will allow the employer/insurer to confirm that they have the right to unilaterally convert the claimant’s income benefits from TTD to TPD even if the WC-104 cannot be filed with the State Board through no fault of the employer/insurer. If the Board issues any revised policy or updates the rule, we will make certain to let you know.