GQ Corner
Q. An injured employee resigns his position but continues to treat for the compensable injury. He subsequently has surgery for the compensable injury, and was taken off work for one month. Now he been released to return to light duty work. Do we continue to owe TIBS? Would it matter whether the employer would have been able to bring him back based on the restrictions? Can I deny benefits based on the fact he removed himself from the workplace?
A. While disability is an issue of fact – Is the employee unable to obtain or retain employment at preinjury wages as a result of the compensable injury? – it is unlikely that Carrier would prevail on a dispute. The subsequent surgery provides a valid basis for the change in work ability. The employer did not tender a bona fide offer of employment and does not intend to make any such offer based on the current restrictions. There are some situation that would support an argument removed himself from the workplace and is not disabled as a result of the injury, but the current facts do not support that argument.
Q. An employee attended a mandatory company picnic and while there, decided to play basketball when he sustained a knee injury. I understand that injuries sustained while required to attend mandatory events such as this picnic, but does that extend to the specific events that are voluntarily engaged in at the picnic?
A. This question has never been fully resolved in Texas. Section 406.032(1)(D) arguably refers to the individual event (basketball) rather than to the larger circumstance of the mandatory meeting. On the immediate case, the injury event was the activity of basketball, not the picnic. You may dispute the compensability under Section 406.032(1)(D) and the general principle that the injury did not occur in the course and scope of employment.
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