While closely related, the issues of disability and bona fide offer of employment (BFOE) raise two separate and distinct legal questions. APD 012077. Disability deals with an IE's inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the IE's pre-injury wage. Section 401.011(16). [Cross-reference: Existence/duration disability raised by other evidence (I03)]. BFOEs are addressed in Section 129.6 and deal with the IC's right to reduce TIBs based upon a properly tendered job offer to the IE. Section 129.6(g).
Whether there has been a BFOE is a separate issue from whether the IE has disability. An IC that is claiming it is entitled to reduce TIBs based upon a BFOE must specifically, and properly, raise the issue if it wants the ALJ to determine if there has been a BFOE. BFOE is not subsumed in the issue of disability. Even if it is found that a valid BFOE exists, the IE may still have disability but the IC will be allowed to deem the wages offered to be post injury earnings (PIE) and will reduce the IE's TIBs accordingly. Section 408.103(e); Section 129.6(g). When disability and BFOE are both specifically raised as disputed issues, if it is determined that there has not been a valid BFOE tendered, the job offer may still be considered by the fact finder in determining whether the IE has disability. This is so because disability ends if there is employment at the IE's preinjury wage, meeting the conditions of any medical release, that is reasonably available to the IE and that the IE has not availed himself or herself of such employment opportunity. APD 020352.
BFOE/Offer of Modified Duty.
Section 129.6(b) provides that an employer may offer an IE a modified duty position which has restricted duties which are within the IE's work abilities as determined by the IE's TD. That subsection also provides that, in the absence of a Work Status Report (DWC Form-073) by the TD, 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 TD has not indicated disagreement with the restrictions identified by the other doctor.
Section 129.6(c) contains the requirements for a valid BFOE. To be valid, all information contained in Section 129.6(c) must be included in the offer. APD 010110-s. To be valid, a BFOE must:
(1) Be in writing;
(2) Include a copy of the Work Status Report upon which the offer is being based;
(3) State the location at which the IE will be working;
(4) State the schedule the IE will be working;
(5) State the wages the IE will be paid;
(6) Give a description of the physical and time requirements that the offered position will entail; and
(7) Provide a statement that the employer will only assign tasks consistent with the IE's physical abilities, knowledge, and skills and will provide training if necessary.
NOTE: it is not required under the Labor Code or Section 129.6 that the offer of employment describe how an IE can perform the job activities within his or her restrictions. APD 172600. It is also not required by the Labor Code or Section 129.6 that a BFOE be communicated to the IE in his or her primary language. APD 140498. Also, while Section 129.6 does not provide for the use of a third-party vendor in sending offers of employment, where the evidence establishes that the offers were sent by the third-party vendor to the IE at the employer’s request, the offers are considered offers from the employer. APD 171296.
Additionally, nothing in Section 129.6 should be interpreted as limiting the right of an IE or an IC from requesting a BRC relating to an offer of employment. Section 129.6(h). In accordance with Section 129.6(h), DWC will find an offer to be bona fide if it is reasonable, geographically accessible, and meets the requirements of Section 129.6(b) and (c).
BFOE/Doctor/Work Status Report.
Section 129.6(f) sets out the priority of doctors' opinions on the IE's ability to return to work and what the appropriate restrictions are in the event there are Work Status Reports (DWC Form-073s) from more than one doctor. The following is the order of preference that the IC shall use in evaluating an offer of employment:
(1) The opinion of a doctor selected by DWC to evaluate the IE's work status;
(2) The opinion of the TD;
(3) The opinion of a doctor who is providing regular treatment as a referral doctor based on the TD's referral;
(4) The opinion of a doctor who evaluated the IE as a consulting doctor based on the TD's request; and
(5) The opinion of any other doctor based on an actual physical examination of the IE performed by that doctor.
The opinion of a designated doctor who has specifically been appointed by DWC to determine an IE's ability to return to work pursuant to Section 408.0041(a)(5) is presumed to be correct unless it is overcome by the preponderance of the other medical evidence to the contrary. Section 408.0041(e).
Section 129.5 relates to Work Status Reports. Section 129.5(c) requires, in part, that the DWC Form-073 be signed. An unsigned DWC Form-073/Work Status Report in connection with an offer of employment does not comply with Section 129.5(c) and therefore cannot be relied upon for purposes of Section 129.6. APD 180817.
NOTE: in accordance with amendments to Section 408.025, a TD may delegate to a PA who is licensed to practice in Texas under Chapter 204, Occupations Code, or an advanced practice registered nurse who is licensed to practice in Texas under Chapter 301, Occupations Code, the authority to complete and sign a Work Status Report regarding an IE’s ability to return to work. See Acts 2017, 85th Leg., R.S., Ch. 483 (HB 2546), Sec. 1, eff. June 9, 2017 (PA amendment). The advanced practice registered nurse amendment is effective on September 1, 2019 (HB 387 of the regular session of the 86th Texas Legislature in 2019). The delegating TD is responsible for the acts of the PA and advanced practice registered nurse under this subsection. Section 408.025(a).
BFOE/Time to Accept/Reject.
The IC may deem the offered wages to be PIE on the earlier of the date the IE rejects the offer or the seventh day after the IE receives the offer unless the IE's TD notifies the IC that the offer made is not consistent with the IE's work restrictions. If the offer is made by mail, the IE is deemed to have received the offer five days after it was mailed. Section 129.6(g).
BFOE and Disability Distinguished.
The IE's TD released her to modified duty employment as of June 2, 2004, working a maximum of eight hours a day with certain physical restrictions. On June 2, 2004, the IE obtained a job as a parking attendant earning $6.25 an hour and working 27 hours per week. There was no evidence that the reduced hours were due to the IE's compensable injury as opposed to limited available work hours. On June 7, 2004, the employer issued a "BFOE" at $7.54 an hour as a people greeter. The ALJ stated that there was no issue of BFOE before him, and that the IE received the job offer after she was already working her new job. The ALJ determined that the IE had disability from April 24, 2004, through the date of the hearing. On appeal, the IC argued that the ALJ erred in failing to consider evidence that the employer had offered the IE a BFOE. The AP reversed and remanded the ALJ's disability determination noting that it agreed that there was no issue of BFOE before him, but disability was. The AP noted that the Labor Code does not impose on an IE the requirement to engage in new employment while still suffering from some lingering effects of the injury unless such employment is reasonably available and fully compatible with the IE's physical condition and generally within the parameters of the IE's training, experience, and qualifications. Because the ALJ refused to consider the employer's offer of employment as evidence that the IE had an ability to obtain and retain employment at the preinjury wage simply because a BFOE issue was not before him, the case was remanded to the ALJ to consider the job offer in the context of disability. APD 042385.
The disputed issues at the CCH were whether the employer made a BFOE and whether the IE had disability. The employer offered the IE modified duty employment based on a DWC Form-073 issued by the IE's TD on October 23, 2001. No evidence was presented regarding the wages being offered for the modified duty employment as compared with the IE's preinjury AWW, or the duration of the modified duty employment being offered. The IE signed and accepted the offer on October 24, 2001. The IE testified that he only worked the modified duty employment for three days because his pain did not allow him to continue. The ALJ determined that the modified duty employment offered by the employer was a BFOE, and that the IE did not have disability based only on the BFOE determination. The AP affirmed the BFOE determination and remanded the case to the ALJ for additional findings on disability. Disability and BFOE are different yet related issues. The mere fact that a BFOE has been issued does not serve to end disability where the offered wages are not equivalent to the preinjury AWW. The evidence was not clearly developed on either how the offered wages compared to the IE's preinjury AWW, or the duration of the modified duty employment offered. As such, no determination regarding disability could be made. APD 023020.
Section 129.6(c)/All Requirements Met.
When a job offer meets all of the requirements set out in Section 129.6(c), the ALJ may still determine that the offer does not constitute a BFOE because it is not a reasonable offer. Section 129.6(h); APD 020198. Whether such an offer is reasonable so as to constitute a BFOE is a question of fact for the ALJ to resolve. APD 001791.
The IE was released to modified duty employment by her TD. On November 8, 2002, the employer extended a job offer which complied with all of the requirements of Section 129.6(c) and the IE accepted it. The IE testified that she had to leave her modified duty employment on November 13, 2002, because of pain from the compensable injury. The IE's TD took her completely off work on December 9, 2002. The ALJ determined that the employer had tendered a BFOE and that the IC was entitled to adjust PIE in accordance with the offer. The ALJ stated that she did not find the IE's testimony regarding her ability to perform the modified duty employment to be credible. The ALJ further stated that the medical records did not explain why the IE could not perform the modified duty employment, or what aspects of the same would aggravate her condition. The fact that an IE is taken completely off work does not automatically void a BFOE. Since the ALJ was not persuaded that the IE could not perform the work provided under the modified duty restrictions of the BFOE, the ALJ could conclude that the BFOE remained valid and that the IC was entitled to reduce the IE's TIBs by the amount deemed to be PIE. APD 031290.
BFOE Not Found.
The ALJ found that, while the IE accepted the employer’s written offer of modified duty employment, when she reported to work, the actual duties assigned to the IE exceeded the restrictions found in the DWC Form-073 (Work Status Report) that formed the basis for the employer’s offer. The ALJ determined the employer had made a BFOE to the IE, but that the employer effectively rescinded the offer on the day it was made and that the IC was therefore not entitled to adjust PIE. The AP reversed the ALJ’s determination that the employer had made a BFOE and rendered a new decision that it had not made a BFOE to the IE. The AP wrote that, as the duties assigned to the IE exceeded the restrictions of the DWC Form-073, the employer did not make a BFOE. APD 111191.
BFOE Not Found.
The IE'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 IE 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 IE 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 IE. The AP reversed and rendered a decision that the employer had not issued a BFOE in conformity with Section 129.6. Section 129.6 does not require an IE to adapt to a significantly different schedule than the one on which she was employed at the time of her injury. APD 001502.
Prior to his compensable injury, the IE was employed to do oil changes. The IE's TD later released him to restricted duty by means of two DWC Form-073s, one approximately two months post injury and another approximately five months post injury. Pursuant to the later DWC Form-073, the employer tendered a valid BFOE as a service writer. The IE rejected the offer without attempting to do the job, stating that his restrictions precluded him from looking down to write. There was evidence that the orders were written on an "electronic clipboard" that could be held at any height, sitting or standing. The employer next offered the IE a job as a greeter which he turned down on his "attorney's instructions." The ALJ determined that the employer had offered a valid BFOE entitling the IC to adjust TIBs. The ALJ stated that he was not persuaded by the IE's assertion that the offered jobs fell outside of his TD’s restrictions. The ALJ’s determination that the employer had tendered a BFOE to the IE was affirmed. APD 010577.
Section 129.6(c)/Not All Requirements Met.
If all of the requirements of Section 129.6(c) are not met, there can be no BFOE as a matter of law. The following are examples of employment offers which were determined not to be BFOEs:
The employment offer failed to state the location at which the IE would be working as required by Section 129.6(c)(1). APD 041082.
The employment offer failed to state the IE's work schedule as required by Section 129.6(c)(2). APD 020198.
The employment offer failed to state the wages which the IE would be paid as required by Section 129.6(c)(3). APD 042864.
The employment offer failed to state a description of the physical and time requirements that the position would entail as required by Section 129.6(c)(4). APD 020198.
The employment offer failed to state that the employer will only assign tasks consistent with the IE's physical abilities, knowledge, and skills and will provide training if necessary as required by Section 129.6(c)(5). APD 010110-s.