Appeals Panel Decision Demonstrates that Bona Fide Offers Require Attention to Detail
The appeals panel has affirmed the decision and order of an administrative law judge and, in doing so, has shown how technical the Division of Workers’ Compensation can be when determining whether a bona fide offer of employment is valid. The decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 210163, decided April 14, 2021, reforms and then affirms the decision of an ALJ.
A representative of the employer testified at the CCH that she delivered a written offer of employment dated September 22, 2020, to the claimant. The witness specifically identified in the exhibits the pages she gave to the claimant as part of the offer of employment. None of the pages identified included the DWC-73 (physician’s work status report). In her discussion of the evidence, the ALJ noted that the more persuasive evidence supported that no DWC-73 had been included with the written offer of employment.
In one of her Findings of Fact the ALJ found that the written offer of employment did not comply with the requirements of the Division’s bona fide offer of employment rule (Rule 129.6). The appeals panel noted that the ALJ had inadvertently cited the wrong subsection of Rule 129.6 in the decision. The appeals panel reformed this clerical error.
The appeals panel then observed that Rule 129.6(c) requires a copy of the DWC-73 on which the offer is based to be included with a written offer of employment. This failure, the appeals panel wrote, was fatal to the carrier’s argument.
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 Appeals Panel Decision (APD) 010301, decided March 20, 2001; APD 011604, decided August 14, 2001; and APD 011878-s, decided September 28, 2001.
Accordingly, the appeals panel affirmed the ALJ’s determination that the employer did not make a BFOE entitling the carrier to adjust the post-injury weekly earnings.
Bona fide offers can be very helpful tools in facilitating the return of injured workers to the workforce. They can also play an important role in helping the carrier properly adjust the TIBs owed to an injured worker who refuses to return to work in response to receiving such an offer from the employer.
However, bona fide offers must strictly comply with each element of the Division’s rule that describes what is required to be included in such a letter. Our lawyers can assist you in evaluating the validity of a bona fide offer and in drafting an offer that will be found to be compliant with the Rule.
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