GQ Corner

Q. I have a question regarding death benefits payments to a 2009 claim. The eligible widow was married to a licensed peace officer (first responder) and has been receiving DBs since the beginning. She remarried 4/28/2018. Is she still eligible for DBs or does Rule Adoption to Amend 28 TAC §132.7 disqualify her from them?

A. Rule 132.7(f) provides that a widow is still eligible to receive DBs for life, even after remarriage because she remarried after the date of 9/1/2017.  An eligible spouse who remarries is eligible for death benefits for life if the employee was a first responder, as defined by Labor Code § 504.055, or an individual described by Government Code § 615.003(1) or Labor Code § 501.001(5)(F), who died as a result of an injury in the course and scope of employment or while providing services as a volunteer. Subsections (b) – (e) of this section do not apply to an eligible spouse under this subsection. This subsection applies to: Eligible spouses of first responders, as defined by Labor Code § 504.055:(A) who remarry on or after September 1, 2017.

Q. Employee gave her resignation on 2/22. She has been off of work this time earning full TTD, but now that her restrictions changed they would have been able to accommodate. Is it worthwhile to send out a BFOE in order to satisfy a dispute of disability for this matter, or can we go ahead and dispute benefits ongoing as her last day of “employment” would have been 3/05?

A. The general rule regarding retirement is:

1. 1. 1. If the claimant has returned to light duty at the preinjury AWW, and if there is then a retirement, then there is no disability and the claimant is not entitled to TIBS in the absence of a changed condition (with the caveat below).
      2. 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. Thus, the same rule would apply for termination for misconduct (with the caveat below).

Both of these rules are modified where there is strong evidence that the claimant has chosen to remove himself from the workforce on a permanent basis. The mere fact of retirement is not enough. You need some affirmative evidence (generally through an admission by the claimant) that the claimant has no intention of returning to work regardless of reasonable opportunities to do so. In that case, regardless of a changed condition or the fact that the claimant was earning less than the preinjury AWW, he is not disabled because the reason he is not working is because he chose to remove himself from the workforce.