145 ADJUSTMENTS AND CHANGES TO BENEFITS

145.1 Except as provided in §§ 145.3, 145.4, 145.5 and 145.6 of this chapter, the Program will provide the claimant with prior written notice of the proposed action and give the claimant thirty (30) days to submit relevant evidence or argument to support entitlement to continued payment of compensation prior to issuance of an Eligibility Determination (ED), where the Program has a reason to believe that compensation should be either modified or terminated due to a change of condition pursuant to Sections 2324(d)(1) and (4) of the Act. An ED shall be accompanied by information identifying the employee's appeal rights and, for termination of indemnity benefits, claimant's one hundred eighty (180)-day time limitation from the date of the notice to make a claim for permanent disability compensation.

(a) If a claimant timely files his or her response to the Program's prior written notice of proposed modification and identifies additional evidence the claimant wishes to submit, the Program shall allow the claimant additional time to submit evidence, where claimant establishes good cause for the delay in acquiring the evidence.

145.2 Prior notice provided under this section will include a description of the reasons for the proposed action and a copy of the specific evidence upon which the Program is basing its determination. Payment of compensation will continue until any evidence or argument submitted has been reviewed and an appropriate decision has been issued, or until thirty (30) days have elapsed after the issuance of the notice if no additional evidence or argument is submitted.

145.3 Prior written notice will not be given when a claimant dies, when the Program either reduces or terminates compensation upon a claimant's return to work, when the Program terminates only medical benefits after a physician indicates that further medical treatment is not necessary or has ended, or when the Program denies payment for a particular medical expense.

145.4 The Program will not provide prior written notice when compensation is forfeited for:

(a) A claimant's failure to report earnings from employment or self-employment; or

(b) A claimant's failure to accept a modified duty assignment, when one is offered to him or her.

145.5 The Program will not provide prior written notice when compensation is suspended due to one of the following:

(a) A claimant's failure to attend vocational rehabilitation;

(b) A claimant's failure to follow prescribed and recommended courses of medical treatment from the treating physician; or

(c) A claimant fails to cooperate with the Program's request for a physical examination.

145.6 The Program will not provide prior written notice when compensation is terminated due to one of the following:

(a) The award of compensation was for a specific period of time which has expired;

(b) The death of a claimant;

(c) The claimant has been released to return to work or has returned to work based upon clear evidence; or

(d) A claimant's conviction for fraud in connection with a claim under the Act.

145.7 The Program shall provide written notice, but not an ED, where there are de minimus adjustments resulting from the application of COLAs or corrections of technical errors that affect five percent (5%) or less of the claimant's monetary benefits over the course of a twelve (12)-month period. The reasons for such de minimus changes shall be documented in claimant's PSWCP file.

145.8 If the claimant submits evidence or argument prior to the issuance of the decision, the Program will evaluate the submission in light of the proposed action and undertake such further development as it may deem appropriate, if any. Evidence or argument that is repetitious, cumulative, or irrelevant will not require any further development. If the claimant does not respond within thirty (30) days of the prior written notice, the Program will issue a decision consistent with its prior written notice. The Program will not grant any request for an extension of this thirty (30) day period.

145.9 Evidence or argument that refutes the evidence upon which the proposed action was based will result in the continued payment of compensation. If the claimant submits evidence or argument that fails to refute the evidence upon which the proposed action was based but which requires further development of the evidence and basis for the decision, the Program will not provide the claimant with another notice of its proposed action upon completion of such development.

Once any further development of the evidence is completed, the Program will either continue payment or issue a decision consistent with its prior written notice or further developed evidence.

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017).