This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 16, 2001. The disputed issue at the CCH was whether the appellant (claimant) has had disability from her compensable injury of __________, for the period of “March 21, 2001 through the present.” The hearing officer resolved the disputed issue by deciding that, as a result of her compensable injury of __________, the claimant had disability from March 21, 2001, through April 16, 2001. The claimant appealed and the respondent (carrier) responded.
DECISION
The hearing officer’s decision is reversed and remanded.
The claimant’s attorney and the carrier’s attorney appeared at the CCH, but the claimant did not appear. The claimant’s attorney did not ask for a continuance. The attorneys submitted their respective exhibits and gave their arguments.
It is undisputed that the claimant sustained a compensable injury to her low back on __________, and that, as of the date of the CCH, no doctor had certified that the claimant had reached maximum medical improvement. The claimant has been treated for an abdominal problem unrelated to her back injury. The claimant has also been treated for her compensable back injury.
The hearing officer made the following findings of fact and conclusion of law:
FINDINGS OF FACT
5.From March 21 through April 16, 2001, the Claimant was unable, due to her compensable low back injury, to obtain and retain employment at wages equivalent to her pre-injury wage. She was able to earn wages for only four hours per day.
6.From April 17 through May 1, 2001, despite her compensable low back injury, the Claimant was on a medical leave of absence from her employment solely for an abdominal medical problem unrelated to her compensable injury. The Claimant earned no wages during her leave of absence.
7.On May 2, 2001, the Claimant failed to return to work with the Employer, without telling anyone why she had not returned. This was good cause for the Employer to terminate her employment on May 2, 2001. The Employer did so.
8.From May 2, 2001 through the date of this hearing, the reason the Claimant did not earn any wages was solely because the Employer terminated her employment for good cause.
9.From May 2 through June 25, 2001, the Claimant was unable, due to her compensable low back injury, to work more than four hours per day. From June 26, 2001, the Claimant was unable, due to her compensable injury, to work at her former employment.
CONCLUSION OF LAW
2.As a result of her compensable injury of __________, the Claimant had disability from March 21 through April 16, 2001.
The claimant appeals Findings of Fact Nos. 7 and 8 and Conclusion of Law No. 2. The claimant states that she generally agrees with the hearing officer’s recitation of the facts and that the hearing officer correctly found that the claimant had disability from March 21 through April 16, 2001. The claimant further states that she had a secondary condition that caused her to be hospitalized on April 17, with continuing recovery through May 18, 2001. However, the claimant states that the hearing officer erred in finding that there was no disability from May 19, 2001, the date of her release for this secondary condition, through the present. The medical evidence reflects that the doctor who has been treating the claimant for her abdominal condition released the claimant to return to work with no restrictions on May 19, 2001. The medical evidence also reflects that the claimant’s treating doctor for her compensable injury released the claimant to return to work with restrictions for a maximum of four hours per day on April 11, 2001, and that the treating doctor took the claimant completely off work on June 26, 2001. There is also a Personnel Action Notice that reflects that the claimant was terminated from employment on May 2, 2001, for failing to return from a leave of absence.
Section 401.011(16) defines “disability” as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” The disputed issue of disability is a question of fact to be determined by the hearing officer. Texas Workers’ Compensation Commission Appeal No. 93560, decided August 19, 1993. The claimant had the burden to prove that she had disability as defined by Section 401.011(16). Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993. A claimant may have intermittent periods of disability. Texas Workers’ Compensation Commission Appeal No. 962342, decided January 6, 1997. The claimant need not prove that the compensable injury was the sole cause of her disability, only that it was a producing cause. Texas Workers’ Compensation Commission Appeal No. 961729, decided October 18, 1996. In Texas Workers’ Compensation Commission Appeal No. 992822, decided January 31, 2000, the Appeals Panel noted that there may be more than one producing cause of disability, and that to establish that a noncompensable injury or condition ends disability, the carrier has the burden to prove that the noncompensable injury or condition is the sole cause of the claimant’s disability. In Texas Workers’ Compensation Commission Appeal No. 950264, decided April 3, 1995, the Appeals Panel stated, “The Appeals Panel has had occasion to address disability in the context of whether it can continue after the involuntary termination of an injured employee’s employment and has noted that the focus of the inquiry into disability is on the inability to obtain and retain employment at equivalent wages and ‘the fact that a termination was for cause does not, in and of itself, foreclose the existence of disability.'”
The claimant correctly points out that Finding of Fact No. 9 contradicts Finding of Fact No. 8. These two findings are inconsistent because, in one finding the hearing officer finds that the sole reason the claimant did not earn any wages from May 2, 2001, through the date of the CCH was her termination from employment for good cause, and in the other finding the hearing officer finds that from May 2 through June 25, 2001, the claimant was unable, due to her compensable low back injury, to work more than four hours per day, and that from June 26, 2001, the claimant was unable, due to her compensable injury, to work at her former employment. Since the latter finding indicates that a cause of the claimant’s inability to obtain and retain employment at her preinjury wage from May 2, 2001, through the date of the CCH was because of her compensable injury, it appears that her termination from employment for good cause could not be the sole cause of such inability. Accordingly, we must remand the case to the hearing officer to apply the correct legal standard as set forth in Section 401.011(16) and to make further findings of fact and conclusions of law on the disputed disability issue.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s Division of Hearings, pursuant to Section 410.202, as amended June 17, 2001.
The true corporate name of the insurance carrier is THE ST. PAUL INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TEXAS 78701.
Robert W. Potts – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Gary L. Kilgore – Appeals Judge