This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 27, 1999. With respect to the sole issue before him, the hearing officer determined that the respondent (claimant) is entitled to supplemental income benefits (SIBS) for the 13th quarter. The appellant (carrier) appeals, urging that the claimant failed to meet the good faith effort requirements of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d) (Rule 130.102(d)) and is not entitled to SIBS as a matter of law. The appeals file contains no response from the claimant.
DECISION
Reversed and rendered.
The claimant worked as a detailed mill machinist for the employer when he sustained an injury to his right arm and shoulder on __________. The claimant had rotator cuff surgery performed in December 1994, and reached maximum medical improvement on July 28, 1995, with a 20% impairment rating. The qualifying period for the 13th quarter was from May 29 through August 27, 1999. It is undisputed that the new SIBS rules effective January 31, 1999, apply to the 13th quarter. Rule 130.102, et seq.
The facts of this case are undisputed. During the qualifying period for the 13th quarter, the claimant did not return to work, had a limited ability to work, was not enrolled in a full-time vocational rehabilitation program sponsored by the Texas Rehabilitation Commission (TRC), did not seek employment every week, and was enrolled full time in Autocad drafting classes at (College). The claimant testified that he began his Autocad drafting and design degree in fall 1996 and graduated with an Associates Degree in December 1999. Prior to beginning an Autocad drafting and design degree, the claimant completed TRC-sponsored training to learn how to repair copy machines. The claimant testified that his classes in Autocad drafting were not sponsored by the TRC because he had exhausted his training budget with the TRC. According to the claimant, he was unable to physically perform the job of a copy machine repairman, and he enrolled in college based on his treating doctor’s recommendation to pursue retraining.
Sections 408.142 and 408.143 provide that an employee continues to be entitled to SIBS after the first compensable quarter if the employee: (1) has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment and (2) has made a good faith effort to obtain employment commensurate with his or her ability to work. The only issue in this case is whether the claimant made the required good faith job search effort. Rule 130.102(d) states in part:
Good Faith Effort. An injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee:
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(2)has been enrolled in, and satisfactorily participated in, a full time vocational rehabilitation program sponsored by the [TRC] during the qualifying period;
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(4)has provided sufficient documentation as described in subsection (e) of this section to show that he or she has made a good faith effort to obtain employment.
Subsection (e) provides, in pertinent part:
Job Search Efforts and Evaluation of Good Faith Effort. Except as provided in subsections (d)(1), (2), and (3) of this section, an injured employee who has not returned to work and is able to return to work in any capacity shall look for employment commensurate with his or her ability to work every week of the qualifying period and document his or her job search efforts. . . .
We note that subsequent to the qualifying period, effective November 28, 1999, Rule 130.102 (d) was amended to provide that the good faith requirement could be met through enrollment and satisfactory participation in a full-time vocational rehabilitation program provided by private providers included in the Registry of Private Providers of Vocational Rehabilitation Services.
The hearing officer made findings that the during the qualifying period the claimant did not return to work, was not enrolled in a full-time vocational rehabilitation program sponsored by the TRC, had a limited ability to work, and did not seek employment every week. The hearing officer determined that the claimant made a good faith effort to obtain employment commensurate with his ability to work, based on the following finding of fact:
FINDING OF FACT
13.Claimant’s participation in classes in auto cad drafting at a local junior college as part of an associate’s degree program during the qualifying period for the 13th quarter is a relevant factor which shows that, during the qualifying period for the 13th quarter, Claimant made a good faith effort to obtain employment.
The carrier appeals Finding of Fact No. 13, arguing that the claimant did not meet the requirement of Rule 130.102(d)(2) because the claimant was not participating in a vocational rehabilitation program sponsored by the TRC.
The facts of this case are similar to those of Texas Workers’ Compensation Commission Appeal No. 992483, decided December 20, 1999. In Appeal No. 992483, the Appeals Panel affirmed the hearing officer’s decision that the claimant did not satisfy the requirements of Rule 130.102(d)(2) and was not entitled to SIBS, where the claimant was enrolled full time in college and his study was not undertaken through or paid for through the TRC. In affirming the decision, the Appeals Panel cited the Preamble for the Adoption of New Rules for SIBS at 24 Tex. Reg. 401:
New § 130.102(d)(2) provides that if the injured employee is cooperating with the [TRC], as required by the Act, is enrolled in a full time program, and is satisfactorily participating in the program, then he or she has made a good faith effort to obtain employment. Issues regarding what constitutes a full time program or satisfactory participation in the program would be reviewed on a case-by-case basis. One of the primary reasons for this provision is the fact that a person who must look for work or who secures other employment while enrolled in a program sponsored by the [TRC] risks being removed from the program because of the restrictions of the TRC program. This new provision allows the injured employee to complete the appropriate TRC retraining program without fear of losing entitlement to [SIBS]. This is consistent with § 408.150 of the Act which requires the Commission to refer an injured employee to the TRC in certain circumstances.
Because the claimant was not enrolled in, and satisfactorily participating in, a full-time vocational rehabilitation program sponsored by the TRC during the qualifying period, the claimant did not satisfy the requirement of Rule 130.102(d)(2). Although the claimant’s participation in school is a factor which could be considered by the hearing officer in determining whether the claimant made a good faith effort under Rule 130.102(d)(4), the claimant did not seek employment every week as required by Rule 130.102(e). The claimant has failed to meet any of the four enumerated requirements of Rule 130.102(d) to establish a good faith effort. The hearing officer’s finding that the claimant attempted in good faith to obtain employment commensurate with his ability to work during the 13th quarter qualifying period is against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
We reverse the hearing officer’s finding that the claimant attempted in good faith to obtain employment commensurate with the claimant’s ability to work and the conclusion and decision that the claimant is entitled to SIBS for the 13th quarter, and render a new decision that the claimant is not entitled to SIBS for the 13th quarter.
Dorian E. Ramirez – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Philip F. O’Neill – Appeals Judge