GQ Corner

Q. I have an employer asking about the work restriction, “No driving/operating heavy equipment.” The claimant is a truck driver. He injured his left shoulder in a fall and has been restricted from driving/operating heavy equipment. The employer has light duty work available to him, but he claims he cannot drive his personal vehicle safely to get to work.  Does heavy equipment include his personal vehicle? Also, would we owe TIBs to this claimant if he refuses available light duty work just because he does not have a ride and claims he cannot drive his personal vehicle?

A. A bona fide offer has to be for work that is geographically accessible. The Division will view a restriction that prevents the claimant from driving to and from work to mean the work is not geographically accessible unless the employer makes accommodations to help the claimant get to and from work without driving. That is true, unless the restriction does not prevent the claimant from driving his or her personal car. I suggest you contact the treating doctor and find out whether the restriction would prevent the claimant from driving to and from work. (You may want to advise the doctor how far away from work the claimant lives.) If the restriction only prevents operation of heavy equipment and not the operation of the claimant’s personal vehicle then you should get the treating doctor to confirm that and you should be good to go.

Q. Injured worker is on modified duty and partial TIBs is being paid. UR authorized surgery, but the PLN-11 is now filed disputing extent of injury. The shoulder sprain is compensable, which would mean all other conditions will be disputed, including the surgery. If the injured worker is taken off work, do I have grounds to dispute lost time and stop lost time pay based on the non-compensable shoulder surgery? Am I required to continue pay of partial TIBs?

A. In Texas, when an employee is on partial TIBs, she is by definition disabled. The only question is whether you owe full TIBs or something less than that. The question of what you owe is a math calculation. You take the pre-injury AWW and subtract the post injury earnings. (If the claimant has been given a bona fide offer and the bona fide offer is still valid, you can also subtract the value of that bona fide offer.) In your case, the claimant was in a state of disability when she was taken completely off work for the surgery that is for a disputed condition. Arguably, your insured’s bona fide offer of employment is no longer valid because the claimant cannot perform the light duty while recuperating from the unrelated surgery. And of course, the claimant is not working at all because of the unrelated surgery. So you will owe full TIBs until the claimant returns to work, is released to full duty or is able to work in some capacity and the insured offers to bring her back with a bona fide offer letter.