GQ Corner
Q: I have a claimant who normally worked the night shift prior to her compensable injury. She earned more wages on the night shift than on the day shift. Since her compensable injury, her treating doctor has imposed work restrictions that can only be accommodated during the day, thereby precluding her from working the night shift and earning the increased wages to which she was accustomed. Is she entitled to partial TIBS based on the above?
A: Yes, the claimant would be deemed disabled insofar as the facts establish that she is unable to obtain and retain employment at wages equivalent to the pre-injury average weekly wage as a result of the compensable injury. In other words, she is earning less than her pre-injury wage due to restrictions imposed for her work injury. Under these circumstances, you owe TIBS for the lost wages.
Q: The claimant did not submit a DWC-52 application for first quarter supplemental income benefits (SIBS) so the Division transmitted a letter to him conveying its determination that he was not entitled. Do I need to mail DWC-52 applications to him for subsequent quarters, or is it his responsibility to locate and file each one?
A: The Division should have provided him with a DWC-52 application for second quarter SIBS when they denied entitlement to first quarter SIBS. See Rule 130.103. Under these circumstances, you have no obligation to act until you receive a subsequent application from the claimant. You should send an application for the subsequent quarter each time you dispute or make your first payment for the prior one.
Q: The claimant resides in Texas but recently sustained an injury while working in Oklahoma. Can he elect to pursue a claim in Texas?
A: It depends on various factors. Texas Labor Code Section 406.071 addresses extraterritorial coverage for injuries occurring outside of Texas and specifically provides:
(a) An employee who is injured while working in another jurisdiction or the employee’s legal beneficiary is entitled to all rights and remedies under this subtitle if:
(1) the injury would be compensable if it had occurred in this state; and
(2) the employee has significant contacts with this state or the employment is principally located in this state.
(b) An employee has significant contacts with this state if the employee was hired or recruited in this state and the employee:
(1) was injured not later than one year after the date of hire; or
(2) has worked in this state for at least 10 working days during the 12 months preceding the date of injury.
Thus, the claim is compensable in Texas if the above criteria are satisfied. This will of course depend on the specific facts of each case.
FOLIO
