GQ Corner
Q: Employer sent claimant a bona fide job offer letter dated 8/23/16. He was supposed to start work on 9/6/16, but he didn’t show up. Does the 7 days to suspend TIBs run from 8/23 or the date he failed to show up for work?
A: The bona fide offer rule is 129.6(g), which provides that a carrier may deem the wages offered by an employer through a bona fide offer of employment to be Post-Injury Earnings (PIE), on the earlier of the date the employee rejects the offer or the seventh day after the employee receives the offer of modified duty. Also, if the offer of modified duty was made by mail, an employee is deemed to have received the offer from the employer five days after it was mailed.
Q: I have a claimant who hasn’t worked for the employer in 1 year. After she quit her job, she started treating for the injury about 6 months after she resigned. We have no idea if she is working any place else of not. The doctor has now taken her off work. Do we have to pay TIBS or does she have to prove that she is losing wages?
A: The burden of proof is on an injured worker to prove disability. If you have no evidence of the claimant working, and the claimant has medical establishing an off work status, you would typically owe TIBS. However, if the claimant had a 6 month gap in treatment, you could consider taking the position that the claimant’s current status is unrelated to the compensable injury. I think I would also consider sending the claimant for a DD on MMI/IR. You could consider surveillance if there’s a concern that she may be working, though I’m not a big proponent of surveillance because I find you rarely receive a productive surveillance report. I recommend that you file the PLN-11 disputing disability and request a DD ASAP.
Q: Is election of remedies still a valid defense in Texas? I have a claimant who has been treating under her private health insurance.
A: You can raise the defense, but it’s difficult to win. You have to show a conscious decision on the part of the claimant to skip workers’ compensation and use the private health insurance and a detriment to the comp carrier by changing the course down the road. It’s the latter part that typically proves the most difficult. Typically you’ll see a carrier raise an election of remedies defense in conjunction with other defenses, but it’s rarely the sole basis for denial.
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