When the carrier misinterprets a judge's counsel fee order can an overpayment be recouped from the claimant?
The circumstances allowing a carrier to recover an overpayment have been limited to two situations: (1) a mistake in the mathematical calculation of the AWW or benefit rate in an existing agreement or (2) the situation supports a claim for unjust enrichment. The Commonwealth Court has now allowed recoupment of an overpayment involving counsel fees in Commonwealth of PA/Dept. of Transportation v. WCAB (Noll), Nos. 819 & 907 C.D. 2013; Filed: November 6, 2013.
The case involved a situation where the employer misunderstood the WCJ's order and continued to pay a 20 percent counsel fees (for unreasonable contest) over and above the weekly compensation rate. The employer filed a review petition seeking a credit of $75 per week to recoup the overpayment of $30,540.
The Court agreed that the employer had proven an overpayment. The WCJ's counsel fee order did not use actual dollar amounts due the claimant and his counsel and thus the Court found the order confusing. The Court concluded the overpayment resulted from the employer's mistaken belief the fee order required the claimant to receive his full compensation rate and counsel would receive an additional 20 percent of the rate for past due and all future benefits. Employer, therefore, was entitled to a credit against claimant's future weekly benefits to prevent unjust enrichment. The court remanded the matter for a determination of what would be a reasonable amount for the weekly credit.
Comment:If you have an overpayment situation, please give us a call so that we can analyze the particular situation. You may have a right to recoup the overpayment, especially if ongoing weekly benefits are involved.
Sara L. De Long