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  1. #1

    Default Return to Light Duty

    My question involves workers compensation law for the: Great State of Texas


    I was released to return to work in a "light duty status". My injury was as the result of a truck accident. My only limitation is NO DRIVING COMPANY VEHICLES. I was hired as a truck driver. The employer called me in for a meeting, in that meeting I was told to report tommorrow at 6:00 AM to work a 13 hour day, with 1 hour for unpaid lunch and that I would be washing trucks. Washing trucks means standing out in the Texas sun all day with a bucket, brush and a power washer. They want me to return to duty as a laborer. Seems that I am going from a semi skilled position where I am in a climate controlled truck all day, to punishment.

    They did not give me ANYTHING in writing.




    Texas Administrative Code Title 28 Chapter 129 Rule 129.6, States: Bona Fide Offers of Employment

    (a) An employer or insurance carrier (carrier) may request the treating doctor provide a Work Status Report by providing the treating doctor a set of functional job descriptions which list modified duty positions which the employer has available for the injured employee (employee) to work. The functional job descriptions must include descriptions of the physical and time requirements of the positions.

    (b) An employer may offer an employee a modified duty position which has restricted duties which are within the employee's work abilities as determined by the employee's treating doctor. In the absence of a Work Status Report by the treating doctor an offer of employment may be made based on another doctor's assessment of the employee's work status provided that the doctor made the assessment based on an actual physical examination of the employee performed by that doctor and provided that the treating doctor has not indicated disagreement with the restrictions identified by the other doctor.

    (c) An employer's offer of modified duty shall be made to the employee in writing and in the form and manner prescribed by the Commission. A copy of the Work Status Report on which the offer is being based shall be included with the offer as well as the following information:

    (1) the location at which the employee will be working;

    (2) the schedule the employee will be working;

    (3) the wages that the employee will be paid;

    (4) a description of the physical and time requirements that the position will entail; and

    (5) a statement that the employer will only assign tasks consistent with the employee's physical abilities, knowledge, and skills and will provide training if necessary.


    (d) A carrier may deem an offer of modified duty to be a bona fide offer of employment if:

    (1) it has written copies of the Work Status Report and the offer; and

    (2) the offer:

    (A) is for a job at a location which is geographically accessible as provided in subsection (e) of this section;

    (B) is consistent with the doctor's certification of the employee's work abilities, as provided in subsection (f) of this section; and

    (C) was communicated to the employee in writing, in the form and manner prescribed by the Commission and included all the information required by subsection (c) of this section.

    (e) In evaluating whether a work location is geographically accessible the carrier shall at minimum consider:

    (1) the affect that the employee's physical limitations have on the employee's ability to travel;

    (2) the distance that the employee will have to travel;

    (3) the availability of transportation; and

    (4) whether the offered work schedule is similar to the employee's work schedule prior to the injury.

    (f) The following is the order of preference that shall be used by carriers evaluating an offer of employment:

    (1) the opinion of a doctor selected by the Commission to evaluate the employee's work status;

    (2) the opinion of the treating doctor;

    (3) opinion of a doctor who is providing regular treatment as a referral doctor based on the treating doctor's referral;

    (4) opinion of a doctor who evaluated the employee as a consulting doctor based on the treating doctor's request; and

    (5) the opinion of any other doctor based on an actual physical examination of the employee performed by that doctor.

    (g) A carrier may deem the wages offered by an employer through a bona fide offer of employment to be Post-Injury Earnings (PIE), as outlined in 129.2 of this title (relating to Entitlement to Temporary Income Benefits), on the earlier of the date the employee rejects the offer or the seventh day after the employee receives the offer of modified duty unless the employee's treating doctor notifies the carrier that the offer made by the employer is not consistent with the employee's work restrictions. For the purposes of this section, if the offer of modified duty was made by mail, an employee is deemed to have received the offer from the employer five days after it was mailed. The wages the carrier may deem to be PIE are those that would have been paid on or after the date the carrier is permitted to deem the offered wages as PIE.

    (h) Nothing in this section should be interpreted as limiting the right of an employee or a carrier to request a benefit review conference relating to an offer of employment. The Commission will find an offer to be bona fide if it is reasonable, geographically accessible, and meets the requirements of subsections (b) and (c) of this section.




    According to the rule, this is not a bona fide offer of employment, as it was not in writing, nor in a manner prescribed by the Commission.

    What are my obligations here? Must I tell the employer that they don't know what they are doing? WC adjuster? Case Manager?

    What say you?

  2. #2
    Join Date
    Sep 2011
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    OH10
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    Default Re: Return to Light Duty

    I think you are looking for excuses to not go on the modified work they offered you. You can certainly insist they put the offers terms in writing. Are you trying to argue you are not capable off washing a truck?

  3. #3
    Join Date
    Jan 2006
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    38,867

    Default Re: Return to Light Duty

    Must I tell the employer that they don't know what they are doing?
    Do you really want to piss them off?


    No need to "call them out" on the issue. That will likely cause this to become an adversarial relationship. Speak with the WC case manager and tell them of your understanding of the law. I would think defending such a suggestion with a claim you only wish to protect your rights and position in your WC issue would be seen as a reasonable concern.

    So now, unless you have an employment contract, an employees duties are whatever their employer designates them to be. That means even after you are cleared to drive, if they choose to have you wash trucks from here on out, they can do just that. Arguing that being moved from a semi-skilled position to one that would be classified merely as labor is not a valid argument, either now or in the future.

    Basically, refusing available work can disqualify you for workers comp income replacement payments. You might win this argument with these specific circumstances if you refuse the offer of work but rest assured, they will learn and the next offer of work (oh, maybe something like scrubbing toilets 24 hours a day (and realize Texas has no mandatory lunch or break laws applicable here)) will comport with the law and if refused, give them adequate justification to terminate your employment with cause which will likely disqualify you for unemployment.

  4. #4
    Join Date
    Sep 2011
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    466

    Default Re: Return to Light Duty

    Federal ADA laws require a discussion about reasonable accommodation. if they have not initiated such a discussion you should. throwing the law back and forth comes at the end of the process -not the beginning.

  5. #5
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    Default Re: Return to Light Duty

    Quote Quoting greentree
    View Post
    Federal ADA laws require a discussion about reasonable accommodation. if they have not initiated such a discussion you should. throwing the law back and forth comes at the end of the process -not the beginning.
    yes, if federal ADA laws applied but federal ADA laws do not apply to a temporary disability.

  6. #6
    Join Date
    Sep 2011
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    466

    Default Re: Return to Light Duty

    Quote Quoting jk
    View Post
    yes, if federal ADA laws applied but federal ADA laws do not apply to a temporary disability.
    "injured workers who meet the ADA's definition of an "individual with a disability" will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers' compensation or other disability laws."

    http://www.ada.gov/

  7. #7
    Join Date
    Jun 2006
    Location
    Massachusetts
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    24,351

    Default Re: Return to Light Duty

    Except that the poster does not meet the definition of an individual with the disabilty. That's the whole point.

  8. #8
    Join Date
    Jan 2006
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    38,867

    Default Re: Return to Light Duty

    Quote Quoting greentree
    View Post
    "injured workers who meet the ADA's definition of an "individual with a disability" will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers' compensation or other disability laws."

    http://www.ada.gov/
    have you bothered to read to see what is the ADA classifies as disabled? Check out the length of the time of disability required to qualify and then consider how long the OP has been "disabled".

    after that, realize that the OP has absolutely no restrictions other than he cannot drive. Let me know when you find that listed as a disability covered by the ADA.

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