GQ Corner

Q. The designated doctor performed an examination on 8/31/17 and opined that the claimant had not yet reached MMI. However, he anticipated that MMI would reached on 10/31/17.
 
Subsequently, a post-designated doctor required medical examiner performed an examination on 9/28/17 and certified MMI as of 4/26/17 with a 0% impairment rating.
 
May I suspend TIBs at this time based on the certification issued by the post-designated doctor required medical examiner?
 
A. No. Unfortunately, under these circumstances, the certification issued by the post-designated doctor required medical examiner conflicts with the “not at MMI” opinion issued by the designated doctor. This is because the post-designated doctor required medical examiner “back-dated” MMI to a date preceding the date on which the designated doctor (whose opinion is statutorily entitled to presumptive weight) opined that the claimant had not yet reached MMI.
 
 You have several options, none of which is mutually exclusive. You may file a DWC-45 to request a BRC on issues of MMI and impairment rating to push the case through the dispute resolution process with the goal of obtaining an administrative decision adopting the certification of the post-designated doctor required medical examiner. Note that if and when you obtain a finalized legal decision to this effect, you may pursue reimbursement from the Subsequent Injury Fund (SIF) for all overpayments made pursuant to the designated doctor option that was effectively reversed, modified, or overturned by the decision.
 
 Alternatively, or additionally, you may file a DWC-32 to request a new designated doctor examination on MMI and impairment rating, particularly since the MMI date anticipated by the designated doctor has passed and thus it is likely he or she may issue a certification permitting you to suspend benefits sooner.
 
 Yet alternatively or additionally, you may do nothing at the current time and monitor to see whether the claimant timely disputes the certification of the post-designated doctor by filing a DWC-45 disputing the certification, as failure to do so may support a 90-day finality defense. This assumes that the certification of the post-designated doctor required medical examiner is the first issued in connection with the claim, and that you can prove delivery of written notice of the certification by verifiable means as of a particular date. To this end, it is important that you transmit a copy of the report by verifiable means regardless of which other actions, if any, you choose to take.

Q. The employer mailed the claimant a bona fide offer of employment (which contains all of the criteria set out in Rule 129.6 and is consistent with applicable work restrictions) on 10/3/17 but claimant did not respond in any fashion. He simply cannot be reached. When can we treat the wages offered as post-injury earnings?
 
A. Rule 129.6(g) provides that a carrier may deem the wages offered by an employer through a bona fide offer of employment to be post-injury earnings (PIE) on the earlier of the date the employee rejects the offer or the seventh day after the employee receives the offer. It further provides that, if the offer of modified duty was made by mail, an employee is deemed to have received the offer from the employer five days after it was mailed.
 
Applying the above to your facts, the claimant would be deemed to have received the bona fide offer on 10/8/17 and the carrier may treat the wages offered therein as post-injury earnings against which to offset its TIBs liability as of 10/15/18.

Note that there is an exception to subsection (g) that applies when the treating doctor notifies the carrier that the offer made by the employer is not consistent with the claimant’s work restrictions. The above response assumes the facts of this case do not support such an exception.