AP Approves Use of Third Party Vendors to find Light Duty Work
The appeals panel has affirmed a decision and order of an administrative law judge with respect to the issues of disability and bona fide offer of employment, but in so doing, issued an important clarification on the use of third party vendors who find light duty or transitional duty at other employers for injured workers. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 171296, decided July 24, 2017.
The hearing officer resolved the disputed issues by deciding that: (1) the employer did not tender a bona fide offer of employment to the claimant that entitled the carrier to adjust the post-injury weekly earnings; and (2) the claimant had disability resulting from the compensable injury of July 7, 2016, beginning on December 7, 2016, and continuing through January 16, 2017. The carrier appealed the hearing officer’s BFOE determination, contending that the hearing officer’s determination was reversible as a matter of law and fact. The claimant responded, urging affirmance of the hearing officer’s determination. The hearing officer’s determination that the claimant had disability resulting from the compensable injury of July 7, 2016, beginning on December 7, 2016, and continuing through January 16, 2017, was not appealed and became final pursuant to Section 410.169.
It was undisputed that two offers of employment for a modified duty position were sent to the claimant after his compensable injury. The first offer was dated November 29, 2016, and was sent on November 30, 2016. The second offer was dated December 29, 2016, and was sent on December 30, 2016. The evidence established that the offers were sent by Re-employability, Inc., a third-party vendor.
The employer’s safety compliance manager for the employer, testified at the CCH that in the normal course of business regarding injured employees the employer determines whether or not work is available to accommodate an injured employee’s restrictions. If the employer determines that the injured employee’s restrictions cannot be accommodated the employer looks to outside sources that would accept the injured employee on the employer’s behalf.
She testified that she discussed this process with the adjuster. The employer’s representative told the adjuster the employer would pay the claimant $15.00 per hour for working light duty with an outside source that could accommodate the claimant’s restrictions. The adjuster contacted RE, and gave them the claimant’s restrictions and the employer’s offered rate of pay.
The vendor sent both offers to the claimant. Both offers notified the claimant that he would work at a different company and that the claimant’s employer would pay the claimant $15.00 per hour. Both offers listed the address to which the claimant was to report for work, the claimant’s work schedule, specific job duties, and a statement that the employer would only assign the claimant tasks consistent with his physical abilities, knowledge, and skill and training would be provided if necessary. Both offers contained the address of the claimant’s employer and Ms. T’s typewritten name.
The appeals panel affirmed the ALJ’s determination that the employer did not tender a BFOE to the claimant entitling the carrier to adjust the post-injury weekly earnings because it concluded that there was sufficient evidence to support the judge’s discussion that the offers were not made in compliance with Rule 129.6 inasmuch as they had not been based upon the restrictions of the claimant’s treating doctor at the time the offers were issued.
However, the appeals panel wrote an opinion “to clarify statements contained in the hearing officer’s discussion regarding the offers sent by RE.”
The hearing officer stated that Rule 129.6 does not provide for the use of a third-party vendor, and “[a]s the [Rule 129.6] is strictly construed, the two letters sent to [the] [c]laimant by [RE] do not comply with Rule 129.6, and thus are not valid BFOEs in accordance with Rule 129.6.” Under the facts of this case we disagree. The evidence established that the offers were sent by RE at the request of Ms. T on behalf of the employer to find work that would accommodate the claimant’s restrictions. The evidence also established that the employer would pay the claimant $15.00 per hour to work at RMH, and that this position would accommodate the claimant’s restrictions. We hold that in this case the offers sent by RE on behalf of the employer are considered offers from the employer.
FOLIO
