GQ Corner
Q. Is there any provision within the Labor Code or the Rules that requires an employer to offer a light duty/modified position?
A. The short answer is no, neither the Labor Code nor the Rules require an employer to provide a light duty/modified position to an employee who has been put on restrictions. However, it should be noted that under the Texas Labor Code, in addition to the mandatory reporting requirements outlined in Section 409.005, which includes the reporting of an injury (FROI, and the subsequent reports (regarding return to work)), subsection (j) requires that that upon written request from the employee, doctor, carrier, or the Division, the employer shall notify the employee and the employee’s treating doctor, and carrier of the existence or absence of opportunities for modified duty or a modified duty RTW program available through the employer. If there are opportunities that exist, the employer shall identify the contact person and provide information to assist the employee, doctor and carrier to assess the modified duty or RTW options.
Q. The treating doctor referral placed the claimant at MMI with a 15% impairment rating. This was the first certification of MMI and IR. The handling adjuster made a reasonable assessment and requested a designated doctor within 90 days of receiving the DWC-69 in order to dispute the first certification. The claimant failed to attend the examination. Must I now file a DWC-45 to prevent the first certification from becoming final?
A. Assuming a designated doctor has never been appointed on this claim, then no, you would not be required to file a DWC-45 to prevent the first certification from becoming final. When a designated doctor has not been appointed on a claim, the filing of a DWC-32 will stop the 90-day clock when used to dispute the first certification of MMI and IR. While this is true, the best practice is to file both a DWC-32 and a DWC-45 to ensure that the first certification does not become final.
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