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Entitlement to Commutation (I17)

An IE may elect to receive the remainder of IIBs to which he or she is entitled in a lump sum if the IE has returned to work for at least three months, earning at least 80% of the IE's AWW. An IE who elects to receive the remainder of his or her IIBs in a lump sum is not entitled to any additional income benefits for the compensable injury. See Texas Labor Code (TLC) Section 408.128 and 28 Texas Administrative Code (TAC) Section 147.10.

Election to Commute Final.

An IE's election to receive IIBs in a lump sum is final and binding if it is properly made in accordance with the requirements of TLC Section 408.128 and 28 TAC Section 147.10. APD 992541. An IE legally qualified to commute IIBs under TLC Section 408.128 and 28 TAC Section 147.10 will not be relieved of the effects of his or her election to commute IIBs based on a finding of mutual mistake regarding the extent of the compensable injury because there is no good cause exception to be relieved of the effects of the election to commute IIBs. APD 080469-s.

The IE’s election to receive his remaining IIBs in a lump sum was approved by the IC. The IE’s Election for Commuted IIBs (DWC-51) stated that he had “no lost time” in the date returned to work blank, and checked the box stating that he had returned to work for at least three months; however, the IE left the “present rate of pay” blank. The ALJ determined that the commutation of IIBs was not valid or final. The ALJ noted that while 28 TAC Section 147.10 does not specifically require the date of return to work and the present rate of pay be included on the DWC-51, it does require that an IE must have returned to work for at least three months earning at least 80% of his or her AWW. Further, the ALJ reasoned that, if the information requested by the DWC-51 is not included, a determination cannot be made as to whether an IE is eligible to commute IIBs. The AP reversed, holding that, on its face, the DWC-51 was sufficient to meet the statutory requirements to commute IIBs under Section 408.128. The AP also noted that the evidence established that the IE returned to work for at least three months earning at least 80% of the AWW. APD 162431.

Election to Commute Not Final.

An IE's election to receive IIBs in a lump sum may not be final and binding if the strict requirements of TLC Section 408.128 and 28 TAC Section 147.10 are not complied with.

Even though the IC approved the IE's election to receive his remaining IIBs in a lump sum based upon the IE's representations that he had returned to work for at least three months earning at least 80% of his AWW, the election was held to be invalid. The evidence presented at the CCH showed that the IE had not returned to work for at least three months earning at least 80% of his AWW, and therefore, the IE was not legally qualified to commute IIBs pursuant to TLC Section 408.128 and 28 TAC Section 147.10. APD 941627.

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