GQ Corner

Q. If a claimant was working modified duty at full hours/full pay, but was terminated due to her actions against her employer’s client (she worked at a school and was consistently rude to their client) – do we owe her lost time benefits? Or can we dispute disability due to her termination for cause?

A. Termination for cause is not a basis to dispute disability. Rather, you look at it the other way around.

That is, if the claimant was not disabled the day before the termination, then the inability to retain employment is not due to the compensable injury. However, that does not mean that the claimant can never be disabled in the future. The moment that she can show that she is unable to obtain employment at the pre-injury wage is the moment at which she is disabled. If there is no BFOE, then you will be liable for TIBs.

Q. I am inquiring about a possible defense for denial, or if this would be a compensable injury. The injured worker was going up attic stairs into an attic, where the last step is higher than the rest, approximately 20-24 inches. On the last step, he heard/felt a pop in his right groin area and was ultimately diagnosed with a hernia. He denies issues prior to the date of injury or a prior hernia. Would this be considered idiopathic since the activity of going up steps would not be unique to employment?

A. DWC would consider that activity to be an “accident” most likely, assuming that the claimant was furthering the affairs of the employer at the time. Whether that accident produced the claimed hernia (the “injury”) would be determined by the medical evidence.

Q. The employer has light duty available to the claimant. He worked in Houston, Texas and lived in Alice, Texas. Prior to the injury, he commuted to Houston to work. Now, he is refusing light duty. Please advise regarding the Texas law if the claimant refuses light duty due to distance – can I dispute indemnity?

A. The distance that was not an issue before the injury could be an issue after the injury. The light duty position must be geographically accessible. In evaluating whether the position is geographically accessible, we need to consider the effect that the claimant’s physical limitations have on his ability to travel, the distance he has to travel, the availability of transportation, and how similar the light duty work schedule is to the regular work schedule. If the claimant’s pay rate has changed, or the number of hours he is going to be working has changed, that could also play a role in determining whether the position is geographically accessible. As an example, if the claimant earned $20/hour for 50 hours/week before the injury, the claimant may have been comfortable driving a significant distance for that work. If the light duty assignment only offers $10/hour for 3 hours/day, it will likely be determined the position is not geographically accessible because it does not make sense for the claimant to travel under those circumstances.