BONA FIDE OFFER OF EMPLOYMENT / Offers By Third-Party Vendors On Behalf Of The Employer To Work Somewhere Else Are Considered Offers From The Employer
Appeal 171296
The ALJ determined that the employer did not tender a BFOE to the claimant entitling the carrier to adjust the post-injury weekly earnings because the offers were not in compliance with Rule 129.6 because they were not based upon the restrictions of the claimant’s treating doctor at the time the offers were issued. This was affirmed by the Appeals Panel. However, an affirmance was written to clarify the ALJ’s statement that Rule 129.6 does not provide for the use of a third-party vendor (RE), and “[a]s the [Rule129.6] is strictly construed, the two letters sent to [the] [c]laimant by [RE] do not comply with Rule 129.6, and thus are not valid BFOEs in accordance with Rule 129.6.”
The evidence established that the offers were sent by RE at the request of the employer to find work somewhere else that would accommodate the claimant’s restrictions. The evidence also established that the employer would pay the claimant $15.00 per hour to work at RMH, and that this position would accommodate the claimant’s restrictions. Therefore, the Appeals Panel held that the offers sent by the third-party vendor on behalf of the employer to work somewhere else were considered offers from the employer.
BONA FIDE OFFER OF EMPLOYMENT / DWC-73 Upon Which The BFOE Is Based Must Be Signed By The Issuing Doctor
Appeal 180817
In reversing the ALJ’s finding that the employer tendered a BFOE, the Appeals Panel noted that the DWC-73 work status report attached to the offer was not signed. Rule 129.5(c) requires that the DWC-73 be signed in order to be complete. Because it was not signed, it cannot be relied upon for Rule 129.6 purposes.
