Appeals Panel Finds Another Bona Fide Offer to be Invalid
For the second time in a two-month period the appeals panel has reversed a hearing officer’s determination that an employer made a bona fide offer of employment and has rendered a decision that the offer of employment was not bona fide. In Appeals Panel Decision Number 152184, decided December 29, 2015, the appeals panel reversed a decision that the employer’s offer of employment was a bona fide offer, and rendered a decision that the offer was not bona fide because the offer merely listed the restrictions given by the claimant’s treating doctor rather than stating the actual physical and time requirements that the position would entail.
The decision reaches essentially the same conclusion that the appeals panel reached one month earlier in Appeals Panel Decision Number 151841. There, the appeals panel held that the hearing officer’s determination that the employer made a BFOE to the claimant was wrong as a matter of law because the employer did not disclose the days and time the claimant was scheduled to work. The decision was posted on the Division’s website on January 12, 2016.
In the latest decision, offer of employment listed each of the restrictions imposed by the claimant’s treating doctor and confirmed that the job would not require any of the restricted activities. The appeals panel stated that this approach “does not meet the requirement listed in Rule 129.6(c)(4).” The appeals panel wrote:
Rule 129.6 sets out the requirements for a BFOE and provides in part:
(c) An employer’s offer of modified duty shall be made to the employee in writing and in the form and manner prescribed by the [Texas Department of Insurance, Division of Workers’ Compensation]. A copy of the [Work Status Report (DWC-73)] on which the offer is being based shall be included with the offer as well as the following information:
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(4) a description of the physical and time requirements that the position will entail
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The Appeals Panel has held that the language in Rule 129.6 is “clear and unambiguous” and the rule “contains no exception for failing to strictly comply with its requirements.” See APD 010301, decided March 20, 2001; APD 011604, decided August 14, 2001; and APD 011878-s, decided September 28, 2001. In APD 090529, decided May 29, 2009, the Appeals Panel reversed and rendered a new decision that the employer had not made a BFOE because the written offer failed to provide a description of the physical and time requirements for the light assembly position offered pursuant to Rule 129.6(c)(4), given the work restrictions in the attached DWC-73. In the instant case neither offer of employment listed the physical and time requirements the offered position would entail, nor do they state the specific job position that was being offered. Instead, both offers of employment listed restrictions of what the job would not entail, which does not meet the requirement listed in Rule 129.6(c)(4). Accordingly, we reverse the hearing officer’s determination that the employer tendered a BFOE to the claimant, and we render a new decision that the employer did not tender a BFOE to the claimant.
These two cases provide important lessons that must be communicated to policy holders regarding the content of their offers of employment. First, general statements describing the work to be done may prove fatal to enforcing the offer of employment if the claimant refuses to return to work; and second, an offer of employment that merely lists restrictions of what the job would not entail, will not meet the requirements listed in the bona fide offer of employment rule.
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