GQ Corner

Q. I have a fatality claim where the claimant is not married, but is expecting a baby.

1. 1. 1. 1. Is the unborn baby entitled to death benefits if the fatality occurred before the birth of the baby?
         2. Will they have to provide DNA testing to confirm that the claimant is the father of the baby?
         3. Should we deny benefits if there is a request for benefits without the supported DNA testing to confirm that the claimant was the father?

A. Yes, death benefits are payable to a child that was conceived, but unborn at the time of the employee’s death.  AP 011542-s.

Rule 132.4(b) provides that “A person claiming benefits as the biological or adoptive son or daughter of a deceased employee shall submit proof of relationship to the deceased employee to the carrier or along with the claim for death benefits. The claimant shall submit a certified copy of the claimant’s birth certificate or decree of adoption. If these documents do not exist, the claimant shall submit other proof of relationship, such as baptismal records, court orders establishing paternity, voluntary admissions of paternity, or affidavits of persons who have personal knowledge of the relationship to the deceased employee.”

If you do not receive any such records, you can deny benefits.  There is nothing in the rule preventing you from requesting DNA confirmation, but similarly nothing in the rule requiring them to provide that.

I am comfortable with you denying benefits if none of the documentation listed in 132.4(b) is provided.  However, I do not believe you should dispute death benefits on the basis that DNA testing was not provided.

Q. I have a claimant that switched employers after getting injured. He told me he had put his resignation in with Hirschbach (Work Comp employer) prior to his injury. He then went to his new company that accepted him with his restrictions. They ended up firing him because he couldn’t do his full job. The new company claimed they never should have hired him because of his restrictions even though they knew about them when they hired him. He is now suffering wage loss because his new employer let him go because of his restrictions. Will we owe wage loss on this? My thinking is I should go to Hirschbach and ask them if they would offer him a new light duty job offer, and if he would accept this then we wouldn’t owe wage loss. Otherwise, my thinking is if they won’t take him back we would probably owe wage loss on this one, is this correct? 

A. This is going to boil down to whether the claimant can establish an inability to obtain or retain employment at wages equivalent to his preinjury wage due to the compensable injury.  That is the definition of disability under the statute.  As a practical matter, the further he gets from the compensable injury without actually losing time from work, the harder it will be for him to prove a nexus between his inability to obtain/retain, and his original injury.  At the same time, and also as a practical matter, few things are easier to prove than disability under our system here in Texas.  Ultimately it is a fact issue to be resolved by an ALJ if the parties are not in agreement.  So, if the facts arguably do not support his claim that his current inability to obtain/retain is related to the original injury, you can file a PLN-11 to dispute disability. Among your arguments might be that, but for his decision to resign from the insured, he would still be able to work in his preinjury position with them earning equivalent preinjury wages (if that is in fact the case).

On a separate issue, if the insured is willing to extend a bona fide offer of employment, they should do so, as that could limit your TIBs exposure going forward.