GQ Corner
Q: The injured employee has DWC-73 return to work forms from several different doctors. The treating doctor indicated the injured employee can return to work with restrictions. Her surgeon indicated that she could not return to work in any capacity, and the designated doctor opined that the claimant could return to work with restrictions, but the restrictions were less restrictive than the treating doctor’s. The insured would like to draft a bona fide offer of employment (BFOE) but doesn’t know which DWC-73 to use.
A. The insured should use the designated doctor’s DWC-73 when drafting a BFOE in this scenario. Rule 129.6(f) sets out the order of priority that shall be used by carriers when evaluating an offer of employment. The first return to work opinion that should be used is the designated doctor’s. Since your scenario contains a designated doctor’s return to work opinion, the insured should base the light duty offer on those restrictions.
Q. If the offer of employment does not contain all 5 elements under rule 129.6(c) does that mean that it is not a bona fide offer, and if so, what other possible relief do I have that is not provided under rule 129.6 ?
A. The offer to be considered a bona fide offer, must contain the following 5 elements:
(1) the location at which the employee will be working;
(2) the schedule the employee will be working;
(3) the wages that the employee will be paid;
(4) a description of the physical and time requirements that the position will entail; and
(5) a statement that the employer will only assign tasks consistent with the employee’s physical abilities, knowledge, and skills and will provide training if necessary.
Remember that the work status report must be attached to the offer. However, even if an offer does not meet all of the elements, the offer itself, may be sufficient to establish that it afforded the injured employee a reasonable opportunity to work within his restrictions. Depending on the facts, the rejection by the injured employee of the offer in spite of it not being a bona fide offer, may present a defense to disability.
Appeals Panel Decision No. 020352 held that disability ends if there is employment at the injured worker’s preinjury wages, meeting the conditions of any medical release, that is reasonably available to the injured worker, and the injured worker has not availed herself of the employment opportunity. This is because the Workers’ Compensation Act is not intended to be a shield for an employee to continue receiving Temporary Income Benefits where, taking into account all the effects of her injury, she is capable of employment, but chooses not to avail herself of reasonable opportunities. APD 012646.
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