GQ Corner
Q. If an employee is taken off of work but the employer pays salary continuation for a period of time, would the claimant still be considered “disabled” during that period?
A. Yes, assuming the claimant was taken off work because of the compensable injury, he would be considered disabled. The reason why is traceable to the statutory definition of “disability” as the inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the pre-injury average weekly wage. In this scenario, the apparent inability to work supports a finding of disability. Note also that Rule 129.2(c)(6) characterizes as post-injury earnings any monies paid to the employee by the employer as salary continuation based on a contractual obligation, an employer policy, or a written agreement. The amount of post-injury earnings would determine if temporary income benefits are payable.
Q. Two employees got into an argument during the workday, and this culminated in a physical altercation resulting in injuries to both employees. Would either or both have a compensable claim in connection with those injuries?
A. Texas Labor Code Section 406.032 provides that an insurance carrier is not liable for compensation if the injury was caused by an employee’s willful attempt to injure himself or to unlawfully injure another person, or if the injury, or if the injury arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment. These are affirmative defenses on which the carrier retain the burden of proof. Therefore, your investigation should focus on the reason for the dispute (and ultimately the fight) between the employees. You may have reasonable grounds to dispute an injury arising out of and in the course and scope of employment, to assert that the employees deviated from the employment prior to and contemporaneously with the claimed injuries, and to raise one or both of the affirmative defenses mentioned above.
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