GQ Corner
Q: The claimant sustained a work injury while performing an activity in a manner inconsistent with a company policy maintained by the claim employer. Our investigation reveals that the injury was entirely his fault. Do these circumstances furnish grounds on which to deny the claim?
A: No, they do not in and of themselves furnish a legitimate basis to deny the claim. Neither a violation of company policy nor the fact that the claimant was at fault (and that his injury resulted therefrom) operates to negate the existence of an injury or remove the claimant from the course and scope of employment. When misconduct involves a rule violation that relates to how to accomplish the ultimate work, the act remains within the course of employment. It is only when the misconduct involves a prohibited overstepping of the boundaries defining the ultimate work to be done by the claimant that the prohibited act is outside the course of employment.
Q: The claimant sustained a compensable injury and missed six consecutive days of work before returning to her full time position. She has not lost any time since. Did her initial absence from work (and resultant loss of wages) operate to start the 104-week clock for purposes of statutory MMI?
A: No, it did not. Statutory MMI occurs 104 weeks after the date on which TIBS accrued. The accrual date is the eighth day of disability. Because the claimant did not lose wages for at least eight days, the 104-week clock has not been triggered and there is currently no statutory MMI date.
Q: The claim employer issued a valid bona fide offer of employment in accordance with the requirements of Rule 129.6 but it offers less than the full pre-injury average weekly wage for the modified duty position. If the claimant refuses the offer, may I suspend payment of all temporary income benefits (TIBS) on the basis of the refusal?
A: No, you may not suspend payment of all TIBS but you may treat the wages presented in the bona fide offer as post-injury earnings and thereby take a credit or offset against your overall TIBS liability. Remember that your TIBS liability under typical circumstances is simply 70% of lost wages, which is the difference between the pre-injury average weekly wage (AWW) and the wages presented in the offer. Thus, you may subtract the wages presented in the offer from the pre-injury AWW and pay TIBS at 70% of that figure.
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