(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.
The provisions of this § 129.6 adopted to be effective December 26, 1999, 24 TexReg 11420.