December 2017

The ins and outs of workers' compensation

by Karen Dooley

Providing workers’ compensation benefits for employees is required by state law. Employees who suffer a work-related illness or injury must be given necessary medical treatment and may receive Temporary Income Benefits (TIBs) during a sustained absence. The employee does not need to miss work to be entitled to medical benefits. Employees may be eligible for benefits up to a maximum of 401 weeks.

Workers’ compensation is not a form of leave. While receiving workers’ compensation benefits, an employee is responsible for the payment of health insurance premiums unless other leave benefits are running concurrently. Protections under the Americans with Disabilities Act (ADA) also may apply.

Listed below are types of leave that may run concurrently with workers’ compensation benefits:

  • Assault leave
  • Family and medical leave (FML)
  • Local leave
  • State personal leave
  • State sick leave
  • Temporary disability leave

Offsetting leave

Workers’ compensation rules prevent employees from receiving more than 100 percent of their pre-injury average weekly wage when the employee elects to use paid leave while receiving workers’ compensation TIBs.

By board policy, a district can adopt an offsetting policy that limits the amount of paid leave employees can use while receiving workers’ compensation TIBs to fractional amounts. The fractional amounts of leave combined with TIBs will equal the pre-injury weekly wage. Districts should contact their workers’ compensation carrier for the TIBs rate to ensure that the offset is the correct amount.

If the district has not adopted an offset policy, the employee has the following choices:

  • Use available leave and postpone TIBs until leave is exhausted or to the extent paid leave does not equal the pre-illness or pre-injury wage
  • Receive TIBs and forego the use of available paid leave

However, if a district requires the employee to use paid leave for an absence because of a work-related illness or injury, then he or she also will be eligible to receive TIBs at the same time. The combined benefits could be greater than the pre-injury wage, thereby providing an incentive to remain out of work as long as possible.

Because the election to use paid leave can impact the amount of workers’ compensation income benefits received, it is important for districts to document the employee’s choice to use or not use paid leave for each claim. Sample forms to document the employee’s election to use paid leave are available online in the Leaves section of the HR Library.

Family and medical leave

Any workers’ comp absence that results in inpatient care or more than three days of absence with continuing treatment will qualify as an FMLA serious health condition. FMLA provides greater rights to job restoration and continuation of health insurance contributions than workers’ comp. Therefore, it is important to determine an employee’s eligibility and comply with federal regulations to designate the absence, including providing notice in a timely manner.

The district can use the medical certification received for workers’ compensation purposes to qualify the absence for family and medical leave (FML). It is not necessary to require duplicate information from the employee’s health care provider as long as the information on hand is complete and sufficient.

Federal regulations address the interplay of FMLA and modified duty programs. [29 C. F. R. § 825.220(d)] Districts can follow workers’ comp rules and offer an employee a modified-duty position when the health care provider certifies the employee is released to return to work with limitations. Under FMLA, the employee is permitted, but not required, to accept the position and continue on FML. However, under workers’ comp rules, refusal of modified duty may result in the loss of income benefits.

If the employee accepts the modified assignment, the time spent in the assignment does not count toward the employee’s FML entitlement and the employee’s right to restoration to the same or equivalent position remains in effect as long as the employee is in the modified assignment. If the duration of the employee’s modified duty assignment is not limited, the employee’s right to restoration expires at the end of the 12-month leave year defined in Policy DEC (LOCAL).

Coordination of assault leave

Districts are required to coordinate assault leave and workers’ compensation benefits (Texas Education Code § 22.003(b)). Workers’ compensation income benefits are the first source of paid benefits for the employee and supplemented by the district with direct leave payments. The combined total the employee receives should be equivalent to the employee’s pre-injury weekly wage. If the district fails to offset and pays the employee at 100 percent of the preinjury wage, the workers’ comp carrier cannot adjust TIBs.

As a result, the employee would receive full-day leave payments and TIBs. In some cases, this will be equivalent to 175 percent of the preinjury wage. (Texas Department of Insurance Workers’ Compensation Appeals Panel Decision 06173-S).

Compensation for medical care

An employee is entitled to compensation for time spent seeking medical care on the day a work-related injury occurs. This includes time spent traveling to and from the appointment and waiting for treatment. The employee also is entitled to compensation any time the district or the district’s agent requires the appointment.

The employee’s time is not compensable if the appointment is required at the direction of the employee’s physician or health care provider, the appointment relates to a non-work illness or injury, or the appointment is required before an employee may access paid sick leave.

Additional information about workers’ compensation benefits and coordinating leave is available in The Administrators’ Guide to Managing Leaves and Absences. Member districts can also access a recorded webinar, Coordinating Leave and Workers’ Compensation Benefits through the HR Services training web page