GQ Corner
Q. The claimant reported to his second light duty assignment on 12/11/18. The assignment was terminated immediately as the claimant reported to work appearing disheveled. His hair was in disarray, his clothing was dirty, and his shirt was ripped up. The bona fide job offer that was extended outlined the required dress code, which he did not comply with. The non-profit asked that he not return. We did file a PLN-11 disputing TIBs but were advised that we would still be required to pay temporary partial benefits. The claimant was then rescheduled with a new non-profit company and showed up one day and then did not come back. This is now two transitional duty offers that he has not shown up to. Can we dispute temporary partial disability based on this? If not, please explain as to why so that I can better update my client.
A. The AP has held that disability is a different issue than the effect of a BFO. They have indicated that the issue of a BFO presumes that disability exists. The BFO, if refused, only allows the carrier to apply the offered wages as post-injury income. The refusal to accept the offered position, does not negate disability. Unless something else changes, such as a full release or incarceration, you do not have a basis to dispute TIBs entirely. Carrier needs to continue to pay TIBs at the reduced rate per the terms of the second offer.
Note, in Texas, the concept of temporary partial disability is a misnomer. A claimant who has disability and who has not reached MMI is entitled to TIBs. If the claimant who is restricted from regular duty returns to work earning less than the full AWW, she is disabled and is entitled to TIBs at a reduced rate.
Q. The injured worker, a police officer, was on an operation to apprehend a high-risk felon who already had several aggravated assault charges including shooting at other law enforcement officers. Per the Employer/County, charges were not filed for this specific event, and it is highly unlikely that the third party will ever be let out of prison. That being said, we don’t feel right not trying to recoup our lien(s), and protect the self-insured employer.
When law enforcement or other first responders get injured as a result of a third party, do charges have to be filed for the specific event in order to pursue restitution, or may the carrier or TPA pursue in the “shoes” of the claimant?
A. It is possible for the carrier or self-insured to file a personal injury lawsuit if that is indeed what happened. However, such suits are very difficult to prosecute without the claimant/plaintiff’s cooperation, which is why carriers generally let the claimant take the lead and subrogate any recovery they may have.
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