GQ Corner
Q: Claimant has had two prior DD exams, 4/5/14 & 9/26/14, which stated Claimant was not at MMI. A more recent post DD RME on 7/28/15 places Claimant at MMI as of 12/19/14. Can I accept the post DD RME and pay IIBs based on this report?
A: Whether or not you can act on the post DD RME depends upon what date the latest DD said was indicated as the expected MMI dated. You indicated that the Claimant was most recently seen on 9/26/14, but I am not certain when the DD predicted MMI. If your post DD RME’s MMI date is consistent with the DD’s forecast, then yes, you can act on the report. For instance if 9/26/14 DD DWC-69 expects MMI on or about 12/15/14, then yes, you an act on it. However, if the 9/26/14 DD expects MMI on or about 6/2015, then no, you cannot act on this certification because the DD has presumptive weight over that period of time.
However, if the post DD RME is the first valid certification of MMI and IR, make sure the DWC-69 and report is sent to Claimant by verifiable means. If the Claimant fails to file a BRC request (DWC-45) to dispute the post DD RME within 90 days of the receipt of this certification, at that point you may assert as it has become final and adjust benefits.
Q: I have a 26 year old claimant who got hurt at work and was placed on light duty. He sustained a lumbar strain. His restrictions were initially accommodated by the client and he returned to work. Subsequently, it was determined that he could not climb stairs, the employer was not able to continue to accommodate him in that position. Employer contacted a third party non-profit agency to find him a light duty position. A background check was required for this position. Claimant told the employer that he would not pass the background check, and in fact, did not pass. Can I dispute disability since it’s not his injury that is keeping him from returning to work?
A: We will assume that the “no climbing” restriction is supported by credible medical evidence. It is questionable that the offer of work at the non-profit agency will quantify as a bona fide offer of light duty employment. The BFOE requirements are listed in Rule 129.6, and the DWC is quite strict in applying these provisions. Rule 129.6 provides:
(c) An employer’s offer of modified duty shall be made to the employee in writing and in the form and manner prescribed by the Commission. A copy of the Work Status Report on which the offer is being based shall be included with the offer as well as the following information:
(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.
(d) A carrier may deem an offer of modified duty to be a bona fide offer of employment if:
(1) it has written copies of the Work Status Report and the offer; and
(2) the offer:
(A) is for a job at a location which is geographically accessible as provided in subsection (e) of this section;
(B) is consistent with the doctor’s certification of the employee’s work abilities, as provided in subsection (f) of this section; and
(C) was communicated to the employee in writing, in the form and manner prescribed by the Commission and included all the information required by subsection (c) of this section.
(e) In evaluating whether a work location is geographically accessible the carrier shall at minimum consider:
(1) the affect that the employee’s physical limitations have on the employee’s ability to travel;
(2) the distance that the employee will have to travel;
(3) the availability of transportation; and
(4) whether the offered work schedule is similar to the employee’s work schedule prior to the injury.
If the specific provisions are not followed, then the offer of employment is not valid. We have seen a trend of employers using non-profit entities as venues for light duty work assignments. While it is commendable and likely welcomed by a cooperative employee, the enforceability of such an offer is untested. The rule does not contemplate positions outside the control of the employer and an uncooperative injured worker would have a good argument that position at this different location was not “geographically accessible.”
The question of the existence of disability is a fact question of whether Claimant was unable to obtain or retain employment at his average weekly wage as a result of the compensable injury. There is some appeal panel authority that disability is refuted by evidence that an employee failed to avail themselves of a reasonable opportunity to continue to work. These facts are not the best on which to make these arguments. The employer elected to not attempt to accommodate further in the original position and it is unlikely that DWC would find it reasonable to require the Claimant to pass a higher level of scrutiny for the light duty job than for the full duty job.
Q: We have a claimant that was injured in Oklahoma but hired in Texas. He was airlifted from Oklahoma to Plano, Texas for treatment and will continue treatment in Texas. We have not paid any Oklahoma benefits at this time. Due to the fact the Claimant was hired in Texas and wants to continue treating in Texas and no Oklahoma benefits paid, can he choose to file his claim under Texas jurisdiction?
A: The extra territorial jurisdiction statutes (406.071 and 406.072) indicate a Claimant who is injured while working in another jurisdiction can elect to receive benefits in Texas if the injury would be compensable in Texas, and the employee has significant contacts with the state or the employment if principally located in Texas.
Significant contacts are defined as being “hired or recruited in this state” and (1) being injured not more than one year after the date of hire; or (2) has worked in this state for at least 10 days in the last 12 months before the DOI.
If he meets these criteria, then he could choose Texas benefits. Even if he received benefits in Oklahoma for a period, Claimant would not be barred him from choosing Texas benefits, unless the evidence supported that he made a knowing election to receive Oklahoma benefits to the exclusion of Texas benefits. Carrier would be entitled to credit for the benefits paid in the other jurisdiction. (406.075)
FOLIO
