GQ Corner

Q. Prior to his injury, the Claimant in this case worked shift hours – 24 hours on and 48 hours off. He has been released to return to work with restrictions, and the insured can accommodate him by reassigning him to a M-F, 8am to 5pm, (days) position. Would a bona fide offer of employment within those restrictions be consistent with the rule?

A. Rule 129.6(d)(2)(A) provides that Carrier may deem an offer of modified duty to be a bona fide offer of employment if (among other requirements) the offer is for a job at a location which is geographically accessible.

Then, Rule 129.6(e)(4) mandates that, in evaluating whether an work location (in a BF offer) is geographically accessible the carrier shall at a minimum consider a number of factors, including specifically “whether the offered work schedule is similar to the employee’s work schedule prior to the injury”.

The AP in 001502 noted that in the preamble to the amendments to the BF offer rule, DWC explained that Rule 129.6(e) provides that geographic accessibility is “partially based on the availability of transportation.” And they conclude that Rule 129.6 (e)(4) does imply a requirement that light duty be “temporally convenient” to the injured worker: “some measure of work shift convenience [is] an essential part of the geographical accessibility factor.”

In that case, claimant’s preinjury schedule was from 2:00 p.m. to 10:00 p.m. because of childcare considerations. The employer tendered a job offer with scheduled hours of 7:00 a.m. until 3:30 p.m., with an additional provision that she work Saturdays from 6:00 a.m. to 2:00 p.m. The claimant testified that she attempted to work out an arrangement with her employer that would more closely accommodate the daycare schedule and that she offered to work at a different facility of the employer which was closer. The employer responded that the claimant had to work at the facility where she was injured. The ALJ determined that the employer had made a BFOE, and noted that there is no requirement that the light duty be “temporally convenient” to the claimant.

The AP reversed, and rendered a decision that the employer had not issued a BFOE in conformity with Section 129.6, holding that that section does not require claimant to adapt to a significantly different schedule than the one on which she was employed at the time of her injury.

Similarly, in AP 010301, the AP affirmed an ALJ’s determination that an offer was not bona fide under Rule 129.6(e)(4). In that case, the offered work schedule included evening hours (the claimant had four children under the age of 12 and got off work at 2:00 p.m. on weekdays prior to her injury), and thus “was not similar to the claimant’s work schedule prior to the injury.”