Appeal 071637 - November 1, 2007

            The Hearing Officer determined that the employer made a bona fide offer of employment even though Dr.S. did not sign the DWC-73 that was attached to the written offer (BFOE).

The Appeals Panel remanded for reconstruction of the record because of a partially inaudible recording.  They also remanded for the Hearing Officer to reconsider the BFOE issue.  Rule 129.5(c) requires that the DWC-73 be signed by the doctor.  A form signed by the “Medical Director” is not sufficient. (Based on other cases, I assume this is a Concentra case that includes medical forms with a signature stamp in the signature block that reads “In Lieu of Treating Physician Signature, (Signature), (MEDICAL DIRECTOR).

Appeal 071650 - November 12, 2007

            The Appeals Panel reversed findings concerning a bona fide offer of work (BFOE) and disability and rendered a decision that the employer did not make a BFOE and that the Claimant did have disability through the date of the CCH.

            With respect to the purported BFOE, the employer attached a DWC-73 from a referral doctor to the job offer even though there was in existence a DWC-73 from the treating doctor that included more restrictions.

According to Rule 129.6(b), it is only in the absence of a DWC-73 by the treating doctor that an offer of work may be made based on another doctor’s DWC-73.  A further restriction is that the treating doctor has not indicated disagreement with the referral doctor’s restrictions (APD 051731, APD 041337 and APD 040468).

            With respect to disability, the Appeals Panel recited general rules from previous cases apparently to emphasize the fact that these rules still apply in spite of the MDA and ODG:

a.       Evidence of disability is found in a medical report restricting a claimant’s activities.  An injury that prevents him from doing his job is evidence of disability (APD 030927).

b.      If a claimant has been returned to work with restrictions, he does not have to prove there is no work available which would fit his restrictions in order to establish disability (APD 941249).

c.       A claimant under a restricted duty release does not have to look for work for the purposes of establishing disability (APD 020417).

Appeal 080924 - August 8, 2008

            The Hearing Officer erred by finding that there was a bona fide offer of work because the offer did not contain the location of the offered job.  All requirements of Rule 129.6(c) must be met in order to satisfy the rule.  The rule is clear and unambiguous, APD 010301, APD 011604, APD 011878-S, and APD 012088.

            Rule 129.6(f) specifies the order of preference for carriers to use when evaluating an offer of employment.  First on the list is a doctor selected by the commission to determine work status.