Appeals Panel Finds Employer’s Bona Fide Offer of Employment to be Invalid

The appeals panel has reversed the decision and order of an administrative law judge and rendered a decision that an employer’s bona fide offer of employment was invalid because of a defect in the attached work status report. However, the appeals panel also affirmed the ALJ’s finding that the claimant had not sustained disability for the disputed period of time, relying in part upon the employer’s willingness to put the claimant back to work.

The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 180817, decided May 29, 2018.

A contested case hearing was held and the ALJ resolved one of the disputed issues by deciding that the employer had tendered a bona fide offer of employment to the claimant. The claimant challenged this finding on appeal, arguing that the offer of employment did not meet the requirements of Rule 129.6. The appeals panel agreed with the claimant and reversed the ALJ’s determination, writing:

28 TEX. ADMIN. CODE § 129.6(c) (Rule 129.6(c)) provides, in part, that a copy of the Work Status Report (DWC-73) on which the offer is being based shall be included with the offer. In a letter dated November 22, 2016, the employer made an offer of employment to the claimant based on a DWC-73 dated November 10, 2016, from (Dr. D), the treating doctor. The letter noted that Dr. D’s DWC-73 was attached to the offer. The signature block in all copies of Dr. D’s DWC-73 in evidence are blank. Rule 129.5(c) requires, in part, that the DWC-73 be signed. See Appeals Panel Decision (APD) 042765, decided December 8, 2004. The unsigned DWC-73 does not comply with Rule 129.5(c) and therefore cannot be relied upon for purposes of Rule 129.6. Accordingly, we reverse the ALJ’s determination that the employer tendered a BFOE to the claimant, and we render a new decision that the employer did not tender a BFOE to the claimant.

Although the appeals panel reversed the ALJ’s bona fide offer ruling, it affirmed the ALJ’s separate ruling that the claimant had not sustained disability for a period of more than a year. The appeals panel noted that it has “stated on numerous occasions that the issues of BFOE and disability are distinct.” The appeals panel agreed with the carrier’s argument that the BFOE was still permitted to be considered by the ALJ in determining whether the claimant had sustained disability.

When disability and BFOE are both specifically raised as disputed issues, if it is determined that there has not been a valid BFOE tendered, the job offer may still be considered by the fact finder in determining whether the injured employee has disability. See APD 020352, decided April 3, 2002; and APD 042385, decided November 19, 2004. The ALJ’s determination that the claimant did not have disability from December 6, 2016, through December 22, 2017, resulting from an injury sustained on (date of injury), is supported by sufficient evidence and is affirmed.

Therefore, although the claimant successfully reversed the ALJ’s ruling regarding the bona fide offer of employment, he was unsuccessful in reversing the disability determination. TIBs were not due for the disputed period of time.