GQ Corner
Q: If the claim employer does not report a claimed injury to the carrier until filing the First Report of Injury several months later, does the carrier still have 60 days to deny the claim or does it waive its right to contest the compensability of the claim for untimely denial?
A: The action or inaction of the employer cannot cause the carrier to waive any rights that it has. The ability of the carrier to investigate and timely deny a claim is tied back to the date it received notice. The carrier always has 15 days after receiving notice to investigate the claim before it is liable for accrued benefits, and 60 days after receiving notice to deny the claim. See Texas Labor Code Section 409.021; see also Rule 124.3.
Q: The employer issued a bona fide offer of employment (BFOE) to the claimant in accordance with Rule 129.6. The BFOE was consistent with the prescribed work restrictions and provided for payment of the full pre-injury wage. The claimant accepted the BFOE and returned to work in accordance therewith, and the carrier suspended TIBS. The claimant subsequently ceased work entirely (and thus ceased earning any wages) thereafter without explanation. Does the carrier have to re-initiate temporary income benefits (TIBS) since the claimant is no longer earning the full pre-injury wage?
A: Under these facts, it does not. Please note that the claimant will remain disabled as that term is defined by the Act while remaining under ongoing restrictions, but Rule 129.6 and the cases interpreting it dictate that a carrier may continue to deem the wages offered in the BFOE as post-injury earnings (PIE) and take an offset of the PIE against TIBS. Because the BFOE offered full wages, the claimant will be deemed not to have any lost wages, eliminating any liability for TIBS. The BFOE remains effective absent a showing by the claimant of a material change in his or her physical condition to warrant a change in disability status.
Q: The claimant sustained a compensable injury but ultimately returned to full duty work earning the full pre-injury AWW before retiring. The claimant subsequently underwent surgery for the compensable injury. Must the carrier re-initiate temporary income benefits (TIBS) in light of evidence suggesting that the surgery has caused an inability to work?
A: This presents a fact question as to whether or not the claimant removed himself from the work force for a reason or reasons unrelated to the compensable injury with no intention to return to work thereafter. The Appeals Panel established in APD 021818 that voluntary retirement furnishes evidence that disability has ended with the caveat that retirement is merely a factor to be considered in determining whether the claimant is disabled. In other words, the mere fact of retirement does not automatically preclude a determination of disability after the retirement date. The Appeals Panel clarified in APD 022499 that the claimant may be able to prove that the compensable injury is still a producing cause of an inability to obtain and retain employment at the pre-injury wage after retirement, thereby entitling him to TIBS.
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