GQ Corner

Q:        An injured worker failed to attend the scheduled post DD RME. One of the  of issues to be addressed was return to work. Since he failed to attend, can the carrier terminate TIBS?

A:        See Rule 126.6 and Section 408.004. An injured worker who does not attend an RME commits an administrative violation and is subject to a fine per section 408.004.  Rule 126.6(j) notes that a carrier may suspend TIBs in an employee without good cause fails to attend an RME per Section 408.0041(f).

Q:        The claimant’s doctor requested preauthorization for a surgical procedure, which was granted. I had a peer review performed and the reviewer opined that the surgery was not for the compensable injury. I filed a PLN 11 today, but I just found out the claimant already had the surgery yesterday. Since the surgery was preauthorized, does the carrier need to pay for it? Also, does the carrier owe TIBs?  I included on my PLN 11 that the carrier is disputing disability related to non compensable conditions.

A:        Your URA preauthorizing the surgery is not a guarantee of payment; it is simply a determination that the surgery is medically necessary.  If you have a reason other than medical necessity for disputing a medical bill, you can certainly do so when the bill comes in. If there is an extent of injury dispute at the time preauthorization is given, you have an obligation to report that when the preauthorization is issued. If the dispute arises after preauthorization is issued, you obviously were not able to notify the parties at the time preauthorization was issued, but can still use that as a defense when auditing the bill. 

As for disability, if it’s your position that the disability is related to the surgery, and you are disputing the relatedness of the surgery, you can certainly maintain a disability dispute and not initiate TIBS.

Q:        I have an employee currently working modified duty. He was selected for random drug screen.  He tested positive for cocaine.  Is there any reason that the employer cannot or should not terminate him for cause while on modified duty? I will file a PLN-11 disputing disability if they do, but if he pursues disability, do I have exposure? The insured did not have a bona fide offer in place and the claimant had been working the modified duty without issues for 6 weeks.

A:        This is one of those areas where the interests of the carrier differ from the interests of the insured.  From the insured’s perspective, they probably have a drug-free workplace policy and would like to terminate the claimant, but the carrier would ideally like to see the claimant continue working.  If the claimant does get terminated, the carrier can certainly file a PLN-11 raising a disability dispute as long as the claimant was earning his preinjury wages while on modified duty. If the claimant was not earning his preinjury wages and carrier was paying partial TIBS, you will need to start full TIBS if he is terminated since there is no bona fide offer and there will no longer be post injury earnings for the carrier to take credit for.

The claimant is free to challenge that dispute, and likely will. You have a legitimate argument to make that the claimant’s inability to maintain his preinjury earnings is due to the termination that had nothing to do with his injury, again, as long as he was earning his preinjury wages prior to termination.  However, the claimant will also argue that the insured, by terminating him, effectively stopped accommodating the claimant’s restrictions.  These cases can go either way, so there’s no definitive answer in terms of your exposure. The bottom line is, if the insured terminates the claimant, you might have to ultimately pay TIBS.