Issue link: http://www.e-digitaleditions.com/i/83215
Sending agreement forms to a claimant who does not sign and forward them back to the carrier complies with the above statutory provision. Accordingly, a de facto Award will not be entered when a carrier begins indemnity payments and sends agreement forms to the claimant for signature. Even if agreement forms have not been sent to a claimant, a de facto Award will not be entered if the evidence does not show that the parties have reached an "agreement" under the Act. For example, if the employer/insurer and the claimant have not agreed on compensability of the accident or to the pre-injury average weekly wage, there can be no de facto Award. It is important to note that the entry of a de facto Award is just like a "real" Award, and does not deprive the carrier of defenses to the Award, such as refusal of selective employment, non-compliance with medical treatment, etc. The risk of de facto Awards can be avoided if adjusters do not begin to make voluntary payments of indemnity benefits to a claimant, and, if they do, agreement forms should be sent immediately. If agreement forms are sent and problems arise with the claimant in the future, the case will not be treated like the claimant is already under an Award. The effect is essentially the same as if the claimant filed an original Claim for Benefits, and the claimant would bear the burden of proof on any disputed issue. B. Penalties 1. 2. Monetary penalties are a sword the Commission almost exclusively wields against employers and carriers. There are several penalty provisions under the Act. The most frequently encountered penalty is the 20% penalty provision of Virginia Code Section 65.2-524. a) Under Section 65.2-524, a claimant is entitled to a 20% penalty on any compensation benefits not paid within two weeks of becoming due unless there was good cause for the delay outside the employer's control. b) Good cause has been found where claimant moves and fails to provide a new address, or where the check was timely issued but lost in the mail.