GQ Corner

Q. The claimant has been working partial hours since the DOI of 10/06/2020. However, the employer did not inform us of this until just recently. Does a separate PLN-8 need to be filed for reach week/period or can one PLN-8 be filed and the benefits for each period be listed out on the one PLN-8?

A. Rule 124.2 requires the carrier to file the PLN within ten days of issuing payment based on the change in post-injury earnings. In other words, it seems to tie the notice requirement to the payment. Therefore, if there will just be one adjuster payment based on the wage information, I think you could get by with one PLN that outlines the change for each benefit week/period. However, each time you make a payment that is different from a prior week, a PLN-8 is required to be submitted to the claimant. A PLN-8 is not submitted to DWC, but an EDI filing is required with DWC.

Q. If we have a signed BFOE for a claimant and he decides to quit, are we still responsible for paying TIBs?

A. If you have a signed BFOE for full pre-injury wages, and the claimant quits, you have a good argument that no TIBs are owed.  The argument is that regardless of the disability issue, if the claimant has an ability to work and the employer makes a bona fide offer of employment based on the claimant’s work restrictions and it is consistent with Rule 129.6, the carrier is permitted to treat the offered wages as post injury earnings.  Thus, if the offered wages are equal to or greater than the preinjury average weekly wage, no TIBs are owed.  However, if the offered wages in the bona fide offer of employment are less than the preinjury average weekly wage, then partial TIBs were owed even prior to the claimant terminating his employment.  Under that second scenario, if the employer does not fire the claimant such that the offer is still available, then the carrier can continue to treat the offered wages as post injury earnings and pay partial TIBs.  However, if the claimant is fired, the claimant will take the position that the offer terminated when he was fired and, thus, there are no longer any offered wages such that the carrier owes full TIBs.

When dealing with the issue of bona fide offer, the carrier should also consider taking up the issue of disability.  The ALJs review bona fide offers under a microscope and look for any deficiency in the offers under Rule 129.6.  However, even if the offer does not meet the requisites of Rule 129.6, it is still an offer.  At AP No. 012646, the parties stipulated that the offer did not constitute a bona fide offer.  The AP affirmed the ALJ who found no disability for the period in which the claimant did not avail himself of his employer’s light duty program.  The Appeals Panel citing other cases,  wrote: We do not believe the 1989 Act is intended to be a shield for an employee to continue receiving TIBs where, taking into account all of the effects of his injury, he is capable of employment but chooses not to avail himself of reasonable opportunities …