GQ Corner
Q. The DD examined the claimant on 6-14-21 and opined that the claimant had not reached MMI. The stat MMI date is 6-30-21. How do we move forward? Do we wait for the 60-day period and re-request the exam? It is out of state, so the RME would be the same mixed bag of doctors.
A. You can wait 60 days to request another DD exam or per Rule 127.1(c), you can provide information of good cause to get the exam rescheduled quicker due to the claimant having reached stat MMI only 17 days after the 6-14-21 exam. In the meantime, you may suspend TIBs and not initiate IIBs or you can suspend TIBs and make a reasonable assessment of the impairment rating in which case you would initiate IIBs. Out of state doctors do present challenges to the Act and Rules such that DWC adopted Rule 127.120 EXCEPTION TO CERTIFICATION AS DD FOR OUT-OF-STATE DOCTORS, which allows DWC to waive any of the requirements for out-of-state DDs.
Q. A Police Officer was given restrictions the employer could have accommodated. The claimant took 3 days of sick leave then took a couple weeks of vacation he already had planned. They wanted to offer him light duty, but he had already took his vacation. He came back today and they are writing the bona fide offer. Do we need to pay TIBs for while he was on vacation?
A. Per rule 129.2(c)(5) post injury earnings include the value of any full days of accrued annual leave that the employee has voluntarily elected to use after the DOI. You need to calculate the claimant’s average weekly wage and compare the claimant’s leave pay for each of the weeks that he was on vacation. If the post injury earnings from the annual leave was equal to or greater than the preinjury average weekly wage, then no TIBs are owed. However, if the post injury earnings were less per week than the preinjury average weekly wage, then you will owe partial TIBs based on 70 % of the difference between the preinjury average weekly wage and the post injury earnings per week. Your e-mail mentioned that the claimant took 3 days of sick leave. Whether it can be treated as post injury earnings depends on (1) whether the political subdivision has adopted Sec. 504.052 in which case the sick leave would not be considered post injury earnings; and (2) if the political subdivision has not adopted Sec. 504.052 then the question is whether the sick leave was taken voluntarily and, if so, then it would be considered post injury earnings.
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