GQ Corner

Q. I have a claimant who returned to work light duty, full pay at same as pre-injury hours and wages (per employers DWC6). Recently the claimant called in to work stating he was taken off work x 2 weeks by his PCP for BP, anxiety and body aches (these are not compensable conditions at this time). I understand that I need to file a PLN11 disputing disability.  Would you also suggest that I file a PLN11 disputing the BP, anxiety and body aches as well? Based on your conclusion – please provide language for PLN11 and/or PLN11’s (if indicated).

A. Extent of injury disputes do not have to be raised until the carrier is taking action on a medical bill.  Specifically, at the time an EOB is issued that denies a bill based on extent of injury, the carrier must have on file with DWC a PLN11 that has raised an extent of injury dispute.  Thus, unless and until you receive a bill that covers the conditions of either BP, anxiety or body aches, you are not required to file a PLN11.  However, since it appears that you will be filing a PLN11 to dispute disability based on the conditions of BP or anxiety or body aches, you might want to include a dispute of extent of injury of those conditions. If so, then you would check both the disability and extent of injury boxes and then you would provide an explanation to support the dispute. 

The language of the PLN11 should be as follows: The carrier disputes that the claimant has disability.  Following his injury, the claimant  returned to work at preinjury wages.  He was subsequently taken off work for reasons unrelated to his work injury.  His loss of wages are not due to his work related injury.  Rather, they are due to conditions which are unrelated to his work injury, and this includes blood pressure issue, anxiety and body aches.  The carrier disputes that the compensable injury extends to high or low blood pressure, anxiety and body aches.  Those conditions did not originate in a risk or hazard of his employment and did not occur while the claimant was furthering the business of his employer. 

Q. I am handling a claim for which I believe a PLN11 is appropriate for disputing disability. The claimant was working for our Self-Insured as an Equipment Operator in their Solid Waste department when he sustained a right wrist strain on 10/23/2020. As he was moving a piece of wood, he felt a pop in his right wrist. He sought treatment at Concentra on 10/23/2020 and was placed on restrictions through 10/27. The Self-Insured was able to accommodate his restrictions and he was able to return to work light duty full pay without losing time. There was no Bona Fide Offer of Employment. The claimant was terminated for cause on 10/26/20 for reasons not related to his workers’ compensation claim or his injury. Had the employee not been terminated for cause, the Self-Insured would have been able to continue to accommodate his restrictions. 

Do you agree that a PLN11 is appropriate? If so, please provide recommended PLN11 wording.

A. Termination for cause when an employee is working light duty does not always or forever preclude a finding of disability. Thus, termination for cause is not a defense in and of itself.

Rather, it depends upon the totality of the facts and circumstances present in any given case. To be entitled to temporary income benefits there must be a showing that the employee is unable to obtain and retain employment at the preinjury wage because of the compensable injury. While the statute uses “and” the Division has historically interpreted it as an “or.”  In this case, the reason he did not retain employment would be due to the termination for cause. But that is a retroactive determination and statute does not preclude a prospective consideration: i.e., if the claimant did obtain some sort of employment, is it likely that he would be able to retain it? Therefore, you must look to the totality of the facts and circumstances as to whether they establish that after the termination the claimant would not able be to obtain employment at the preinjury wage. For example, if an injured employee is on restrictions which the employer is accommodating but for which it created a position of employment that is unlikely to exist outside of this context, then the employee can likely show the inability to obtain employment. On the other hand, if the accommodations are minor and would not reasonably preclude alternative employment at the preinjury wage, then the employee is not disabled. In the former situation disability is established; in the latter it is not.