by William A. Green, Esq.

As we know, exposure on claims is greatly reduced once a claimant is returned to light-duty and the WC-104 process of converting from TTD benefits to TPD benefits begins. Although the process seems fairly straightforward, some helpful reminders were highlighted in a panel discussion with Judge Nicole Tifverman at the Workers’ Compensation Seminar to ensure the conversion is valid.

1. Physician Issuing Light-Duty Release – The light-duty work restrictions must be issued by the authorized treating physician (ATP). Physicians performing independent medical examinations (IME) or those to whom the claimant was referred for specialized treatment should not issue light-duty work restrictions for purposes of converting/reducing TTD to TPD under the statute and Board Rule 104.

2. Filing the WC-104 with the State Board – As a reminder, the Board Rules changed in 2014, and the WC-104 should now be filed with the State Board of Workers’ Compensation along with being served on the claimant and claimant’s attorney.

3. Timing of Conversion/Reduction – Another common issue involves the debate over when the time period, either for 52 consecutive or 78 aggregate weeks, begins to run. Claimants’ attorneys often take the position that the period begins to run on the date the WC-104 is filed with the State Board and properly served on the claimant and his/her attorney. In contrast, employers/insurers generally take the position that the period begins to run on the date the ATP issues the light-duty work release.

• Interestingly, during the panel discussion, Judge Tifverman stated that she has always adopted the latter position and assumed the period begins to run on the date the ATP releases the claimant to restricted duty. Fortunately, the State Board appears ready to resolve this issue, as they are currently proposing an amendment to Board Rule 104 in order to specify that the time period begins to run on the date the ATP issues the light-duty release.

4. Need for Physical Examination – Is there a requirement that the claimant is physically evaluated by the ATP at the time he or she issues the light-duty release? In other words, must the ATP actually determine the claimant’s work capacity/restrictions on the date they are issued, or can he/she merely articulate, record, or affirm a previous determination regarding the claimant’s work capacity?

• Although the State Board retains some discretion on this issue, the claimant’s light-duty work restrictions must be based on a “reasonably concurrent” physical examination by the ATP. However, what is considered reasonably concurrent will vary according to the facts and circumstances of each particular case.

• For example, if the restrictions are issued within close temporal proximity of the physical examination, this factor would certainly weigh in favor of the employer/insurer. Moreover, if the ATP determines the restrictions in some other manner on the date they are issued, such as by reviewing the claimant’s functional capacity evaluation (FCE) report, this factor would also weigh in favor of the employer/insurer.

5. Multiple Injuries – In a situation in which the claimant sustains multiple, discreet injuries during the same workplace accident, must the employer/insurer obtain a light-duty release with respect to each injury before filing/serving the WC-104? In most cases, the answer is yes. For example, if the claimant has sustained an injury to his/her lower back and an injury to his/her knee, there will likely be a separate ATP for each injury. In such cases, the employer/insurer must obtain a light-duty release from each ATP before it can file/serve the WC-104.

• However, if the claimant is receiving treatment from two separate doctors for a single injury, such as an orthopedist and pain management specialist, the employer/insurer need only obtain the light-duty release from the designated ATP.