GQ Corner
Q. Claimant was working light duty under BFJO, but stopped reporting for the assignment 11/27/19 and has not contacted his employer or us as of this date. Do I have to pay him 70% of what he would have earned based on the BFJO or can I dispute full entitlement to TIBS/partial TIBS based on his failure to comply with the BFJO?
A. If the claimant has returned to light duty at the preinjury AWW, and if there is then a job abandonment, then there is no disability and the claimant is not entitled to TIBS in the absence of a changed condition.
If the claimant has returned to light duty at lower than the preinjury AWW, then he is, by definition disabled during the time that he is working. If there is then a job abandonment, then disability continues in the absence of a changed condition, and the claimant is entitled to TIBS. If there was a written bona fide offer of employment, then the claimant is entitled to partial TIBS, based upon the terms of the bona fide offer of employment. The notion is that the claimant’s job abandonment constitutes a de facto rejection of the bona fide offer of employment.
Q. DDE was requested by carrier to address MMI and impairment. Exam took place on 7/23/19. MD found EE not to be at MMI, but also made statements in reference to extent of injury and need for care. I have a PLN-11 Extent of injury dispute on file not accepting the extent of injury stated by the DDE. I know this MD does not hold presumptive weight reference extent of injury.
A Post DD RME has now taken place on 11/7/19. This MD finds employee to be at MMI 3/11/19 with 5% impairment. This is the first certification of MMI on the claim. RME did not address extent of injury.
Is the RME finding of MMI valid? Or not valid because the date of MMI is prior to the DD exam date of 7/23/19? Do I start Impairment Income Benefits? Or at least file a PLN-3 starting the 90- day clock? Employee has not taken any action to address extent of injury nor has the carrier beyond filing the PLN-11.
A. Start the 90-day clock and continue paying per the DD. You can do that by sending the DWC-69 to the claimant by verifiable means. If the 90 days expires without a proper dispute of the first valid certification you can pay according to that. Here, you cannot immediately do that because the DD said no MMI at the time that he saw the claimant and the RME’s certification conflicts with that. Had the RME given an MMI date after the date of the DD Exam, that would be a different matter.
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