During the progress of your workers’ compensation matter, if you receive a Form 36 from your employer, you must pay attention to what remedy your employer is seeking. Typically, employers use Form 36s to stop you from receiving certain kinds of benefits, often your Temporary Total Disability Benefits. You need to respond to Form 36 right away to secure your eligibility for continued benefits.
Temporary Total Disability Benefits
In the usual situation, you have been out of work because of the severity of your workplace injury. For example, your injured neck has prevented you from returning to any kind of work. Your doctor has confirmed your injury. You have been receiving medical care and treatment from the doctor for your injured neck. Since you are not able to return to work, you have also been receiving Temporary Total Disability Benefits (“TT Benefits”) as wage replacements. As your condition improves and your injury heals, your doctor will indicate your progress in their treatment reports.
Filing Form 36
These reports will be sent to your employer’s insurance carrier or their attorney. When your injuries have healed sufficiently, your physician may determine that you can perform some light duty work. When this is indicated in your treatment notes, your employer may file a Form 36 to discontinue your TT Benefits. If your employer’s insurance carrier is particularly aggressive, it may file a Form 36 on its own initiative based upon your physician’s progress notes. When they file a Form 36, your employer is attempting to stop your TT Benefit payments and prompt your return to work.
The filing of Form 36 signals a change in your workers’ compensation case. The change could be a switch in your benefits, say from TT Benefits to TP (Temporary Partial Disability Benefits). It could also signal that your benefits are being stopped completely. Your employer must send the form to both you and to the Workers’ Compensation Commissioner. You have the right to object to Form 36, but you must be proactive in doing so.
Generally, the Commissioner approves Form 36 automatically, unless you object. You must file your written objection to Form 36 within fifteen days, or you will lose your opportunity. If you do object to Form 36 within fifteen days, Form 36 will not be automatically approved, and your workers’ compensation benefits will continue until a later determination is made by the Administrative Law Judge at an Informal Hearing. In addition, you could reach an agreement with your employer’s insurance carrier short of the Informal Hearing, but in our experience, this is unlikely. You should expect a fight over Form 36.
Again, it is very important that you act quickly once you receive Form 36. If you do not think that your benefits should be discontinued, you must promptly file your objection and request an Informal Hearing by contacting the District Office that handles the case. Additionally, it is important to inform either the employer, their attorney, or their insurance carrier to notify them that you are objecting to the stoppage of your benefits.
The Informal Hearing gives you the opportunity to explain why you are still suffering from total incapacity and should still receive your full workers’ compensation benefits. Medical records and reports documenting injuries will aid your case. For example, even though you have progressed forward in your medical treatment, you may still lack the ability to fully return to work. You can have your doctor write a supplemental report explaining your physical restrictions to bolster your claim.
If you believe that that total incapacity continues, but you receive a Form 36, you should do the following:
- File your objection with the District Office. This should be done in the town or city where you were injured. Then you should request an Emergency Informal Hearing on the matter within fifteen days. If you are represented by an attorney, immediately notify your attorney that you have received a Form 36.
- Call your employer’s insurance carrier and tell them that a discontinuance is contested and an Emergency Informal Hearing has been requested.
- At the Informal Hearing, be prepared to present medical reports that confirm your continued total incapacity. Get an additional report from your doctor that explains your continued workplace restrictions. If you don’t do this, the Commissioner may approve a benefits discontinuation.
In the event that you contest a Form 36 and the Commissioner retroactively approves it, any additional benefits you got prior to the hearing could be credited against future compensation benefits for Permanent Partial Disability.
Getting Help With the Process
Keep in mind that a Form 36 does NOT necessarily mean that ALL workers’ compensation benefits are being discontinued! For example, even though you are no longer eligible for Temporary Total Disability (TT) benefits, you may be entitled to further benefits for Permanent Partial Disability (PPD) or Temporary Partial Disability (TP). When you receive a Form 36, contact our experienced workers’ compensation attorneys right away to discuss your situation.