GQ Corner
Q: We are currently paying death benefits to a widow, her 16 year old son, and her 25 year old son. The 25 year old son is bi-polar. I know the widow needs to provide an affidavit yearly indicating she has not remarried or is living with someone in a common-law capacity. I know the 16 year old will continue to be entitled as long as he is a full time student in an accredited school until he turns 25. How do we handle the 25 year old bi-polar son? Do we need to have something from a doctor on a yearly basis to indicate he is still classified as being bipolar or how does that work?
A: With regard to the widow, there is no requirement that the widow has to provide any sort of affidavit on a continuing basis—there is no requirement along those lines in the statute, rules, or case law.
With respect to the 25 year old son, if he is claiming benefits as a student, then you are entitled to request proof as outlined in Rule 132.8(c). If he is claiming benefits on the basis of dependency due to a mental handicap (and bi-polar disorder may or may not qualify), then you are entitled to request proof as outlined in Rule 132.8(e).
Q: We have a situation where the employer is questioning initial date of disability being paid. We have a claimant who had surgery 01/28/16. He worked regular duty up to the date of surgery. The surgery was scheduled on his regular day off. He was also scheduled off on 01/29/16 and 01/30/16. He was scheduled to return to work 01/31/16. We initiated benefits using effective date 01/28/16. The employer wants disability to start 01/31/16 the first date he was scheduled to be at work. It is our position he was disabled effective 01/28/16 (if the employer would have requested the claimant to work he would not have been able to come in to work). Are we taking the correct position?
A: You are correct. The definition of “disability” is not based upon the factors suggested. See APD 052804 (http://www.tdi.texas.gov/appeals/2005cases/052804r.pdf) for an example of the application of this concept, in which the Appeals Panel stated: “Disability is not based on what the claimant’s duties would have been if he had not been injured, rather disability is based on his ability to earn his preinjury wage.”
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