Return to light duty issue

[AverageCitizen]

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.

© 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

© was communicated to the employee in writing, in the form and manner prescribed by the Commission and included all the information required by subsection © 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 © 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?

[1171]

if you are not going to accept the position, you need to notify them of your objections. Verbally first and if necessary later in writing.

ADA rules also are involved.
http://www.ada.gov/

[AverageCitizen]

(06-07-2012 12:20 PM)1171 Wrote:  if you are not going to accept the position, you need to notify them of your objections. Verbally first and if necessary later in writing.

ADA rules also are involved.
http://www.ada.gov/

My point is, what offer / position? The rules are specific, to be an offer, it SHALL (mandatory) be in writing.

[1171]

(06-07-2012 02:36 PM)AverageCitizen Wrote:  

(06-07-2012 12:20 PM)1171 Wrote:  if you are not going to accept the position, you need to notify them of your objections. Verbally first and if necessary later in writing.

ADA rules also are involved.
http://www.ada.gov/

My point is, what offer / position? The rules are specific, to be an offer, it SHALL (mandatory) be in writing.

you're correct.
don't show up to wash trucks.
hold out until they start putting their intentions in writing then you'll have technical grounds to file an appeal.
it all will end so much better for you that way.

although I would WRITE to your union to make sure they support your approach and can refer you to an accomplished labor atty.

[AQA]

LOL 1171.