GQ Corner

Q. Can you please provide me with the ruling that asserts a Carrier has the right to “step into the shoes” of a claimant when recovering a subrogation lien?  I cannot recall the court case.

A. It is not a case. It is the statute itself, Section 417.001(b). The pertinent language is “the insurance carrier is subrogated to the rights of the injured employee and may enforce the liability of the third party in the name of the injured employee . . .”

Q. I have an injured employee who voluntarily terminated his employment.  He made this decision immediately following the date of injury and before the employer could make a bona fide job offer.  Since the employee voluntarily resigned, the employer is no longer able to provide his non-pecuniary benefits, which would have been continued were it not for the employee’s decision to voluntarily resign.   Do I include the non-pecuniary benefits in the average weekly wage or file a PLN-11 on average weekly wage?

A. You have two different issues here.  The first one concerns the average weekly wage. If the claimant’s non-pecuniary wages are discontinued as a result of his resignation, you need to recalculate the AWW to include the value of the non-pecuniary wages.  It may seem odd to do this since the benefits were only discontinued as a result of the claimant’s resignation, but the Appeals Panel has said before that we do not consider the reason for the non-pecuniary wage being discontinued; we figure in the value of the non-pecuniary wage regardless of the reason.  As for the resignation prior to the BFOE being extended, if the insured tells you that they could have and would have accommodated the claimant’s restrictions but for his resignation, I would file a PLN-11 raising a disability dispute. 

Additionally, if the insured is willing to do so, the insured should make an offer of employment to the claimant. If that offer meets the requisites of Rule 129.6, then you may treat the offered wages as post injury earnings. By the insured making the offer even if it is not a “bona fide offer per Rule 129.6”, you have a second defense of “no disability” on the basis that the claimant failed to avail himself of reasonable opportunities by rejecting the offer. See AP No. 012646.