GQ Corner
Q. I have a claimant that was in a car wreck and she eventually needed shoulder surgery for rotator cuff repair. She had the surgery on 1/15/19, is still technically off of work and doing physical therapy, but has been working at a local bar every day. We got her recorded statement where she denies working at the bar but we have surveillance showing otherwise. I have attached the surveillance report. I can’t imagine she makes much there, and at her job with the employer, she is a manager that makes $1,076.93 average weekly wage. We are doubtful we will get an income verification from this bar. Is there anything we can do for suspension of benefits? Could we reduce them until she provides what she made, or should I do a designated doctor for return to work? I would assume the medical provider could try to give her restrictions and I know the insured can accommodate.
A. When the carrier produces evidence to an Administrative Law Judge that the claimant is performing services that reasonably would result in post injury earnings then the burden shifts to the claimant to prove that she continued to earn less than her pre-injury wage. Merely stating that she did not is insufficient.
That said, if there is no reasonable belief that the claimant would be earning an amount at the bar that would reduce the amount of TIBs due, then the only relevant inquiry is whether the nature of the compensable injury precludes obtaining employment at the pre-injury wage. The focus would be on what the evidence indicates she is actually doing and whether such activities are transferable to the point that she could do her pre-injury employment.
I have seen success forwarding video surveillance to a treating doctor and would recommend that if the doctor were an honest broker.
Otherwise, you could request a Designated Doctor and include the video surveillance to the Designated Doctor.
FOLIO
