GQ Corner

Q: Employer completed the DWC-3 using 12 weeks of the claimant’s earnings and one week of a similar employee’s. Can this be done?

A: No. When an employee does not have 13 weeks of an employment history, the employer must first attempt to find wages of similar employee. If there is no similar employee, then you can apply a fair and just calculation method. This can be an average of the available wage information or some other reasonable and accurate method.

Q: The initial wage statement showed that the claimant was receiving his non pecuniary wages. We recently received the DWC-69 and need to initiate IIBs. If AWW is the total of the wages earned and the non pecuniary wages, the TIBs rate will not include the non pecuniary wages since they are still being paid. Is the same true for IIBs?

A: You are correct that AWW does not include non pecuniary wages as long as the employer pays them. If the employer discontinues the non pecuniary wages, then the AWW is recalculated at that time and are included in the AWW. The TIBs and IIBs rates are calculated based on the AWW in effect at the time the benefit is owed. Thus if the employer continues to pay the nonpecuniary wages through the TIBs and IIBs periods then the rates will be calculated based on the AWW that does not include the nonpecuniary wages.

Q: I learned this morning that an employer terminated claimant for job abandonment, 3 consecutive no call/no shows, after his refusal to take advantage of a of BFO. Can we argue that he was terminated for cause, and that the BJO is still applicable, or must we initiate full TIBs?

A: You have two reasons not to pay TIBs: (1) Claimant failed to accept the BFO and therefore you may take credit for any offered wages. If the offered wages were equal to the pre-injury AWW then no TIBS are owed. If the offered wages were less then you may owe partial TIBs; however (2) you can also dispute disability and argue that his off work status is due to being terminated for cause and not for the compensable injury. The employer had appropriate work available for him and it would still be available for him but for the fact he was terminated for reasons unrelated to the work injury.