Disability is defined as an IE’s inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the IE’s pre-injury wage. TLC Section 401.011(16). Before disability can be established, the IE must first prove they sustained a compensable injury. APD 023210. The ALJ must consider all of the conditions which comprise the compensable injury when making his or her determination of disability. APD 201283.
The IE has the burden to prove that disability exists. The existence of disability depends upon whether the IE is earning less money at work as a result of the compensable injury. APD 032579.
This means that the IE must show, by a preponderance of the evidence, that the compensable injury is a cause of his or her reduced wages. APD 012870.
There can be many causes for an IE to be unable to earn their pre-injury wage. The IE does not need to prove that the compensable injury is the sole cause of the reduced wages, the IE must only prove that the compensable injury is one of the causes. APD 032851.
After a compensable injury, an IE may have many different periods of disability. Whenever the IE is not working, or is working and earning less than the pre-injury wages because of the compensable injury, disability begins; then, disability will end when the IE begins to earn wages equal to or more than the IE’s pre-injury wage. APD 032725. When an IE has returned to work after an injury and has earned wages that they contend are less than his or her prior wage, a determination of the amount of the pre-injury AWW is essential to an accurate analysis of the disability issue and is effectively subsumed in that issue. APD 211214.
Dates of Disability
When there is a dispute about disability, the period in dispute begins the day after the date of the injury and continues through the date of the CCH unless the dates for the periods of disability are included in the statement of the issue. Once disability has been litigated through a CCH and an accrual date for income benefits has been established and finalized, that date cannot be changed through a subsequent CCH. The doctrine of res judicata prevents the relitigation of issues which have been resolved in prior suits. Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992).
The AP has reversed and remanded as incomplete the decision of an ALJ who failed to properly determine the entire disability period before them. APD 201870. A decision by an ALJ on disability that goes beyond the disability period in dispute is subject to reversal by striking the excess period from the decision. APD 230114, APD 230369, and APD 230723.
At a CCH held on June 15, 2004, an issue was “Did the [IE] have disability resulting from an injury sustained on (Date of Injury), and if so, for what periods?” No stipulations were made with regard to the period from (Date of Injury), to January 14, 2004. [At the June 15, 2004 CCH, the IE requested disability from January 14, 2004, through the date of the CCH.] The hearing officer’s decision on June 17, 2004, concluded that the IE had disability from January 14, 2004, through the date of the CCH. The IC appealed the decision, asserting that the IE did not establish disability from January 14, 2004, through the CCH. The IC did not argue that there was prior disability from (Date of Injury), through January 14, 2004. The AP affirmed the ALJ’s decision. In a subsequent CCH, the primary issue was “What is the date of maximum medical improvement (MMI) pursuant to Section 401.011(30)(B), the expiration of 104 weeks from the date on which income benefits began to accrue?” The IE argued that the issue was res judicata, because the beginning date of disability was established in the prior hearing. The IC claimed that res judicata did not apply, and that the IE had a compensable injury resulting in periods of disability beginning August 21, 2002. The ALJ determined that the IE chose not to litigate the entire period of disability in the prior CCH and that income benefits began to accrue on August 21, 2002, and statutory MMI occurred on August 16, 2004. The AP reversed and rendered a decision that the date that income benefits began to accrue was January 21, 2004, and the date of statutory MMI under Section 401.011(30)(B) was January 19, 2006. APD 050120-s.
Evidence That Disability Exists
The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed ALJ’s CCH determination regarding disability. For each of these fact circumstances there are cases where an ALJ reached the opposite result because the ALJ did not believe the evidence presented by one of the parties.
Restricted-Duty Release or Removal from Work
A doctor’s report that an IE cannot work because of the compensable injury is evidence of disability. A doctor’s report that restricts the IE’s activities and prevents them from doing the job that they did at the time of the injury, so that they are earning less money than the AWW, is also evidence of disability. APD 030927. If an IE has been returned to work with restrictions, they do not have to prove that there is no work available that would fit their restrictions to establish disability. APD 941249. An IE under a restricted duty release does not have to look for work for purposes of establishing disability. APD 030927, above.
Standard of Review
Whether an IE has disability is a question of fact for the ALJ to decide. Disability can be proven by the IE’s CCH testimony alone. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.—Texarkana 1974, writ ref’d n.r.e.); APD 032940. However, the testimony of an IE, as an interested party, only raises issues of fact for the ALJ to resolve and is not binding on the ALJ. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.—Beaumont 1978, writ ref’d n.r.e.); APD 032579.
The ALJ is the sole judge of the weight and credibility to be given to the evidence that is presented at the CCH. Section 410.165(a) . The ALJ is the trier of fact and resolves the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.—Amarillo 1974, no writ). This is equally true regarding the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.—Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.—Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.—Fort Worth 1947, no writ). For example, depending on the evidence presented, an ALJ may choose not to believe that an IE actually has the physical limitations requiring the restrictions that any given doctor placed on them. APD 023176. This is equally true when a doctor asserts that the IE has no restrictions at all. APD 031749.
Medical Care
Evidence that an IE is still undergoing treatment for the compensable injury can support a claim for disability. APD 032661.
Medication
The ALJ may consider past, present, and recommended future treatment in determining if disability exists and for what time period. The ALJ may consider the effects of any medications an IE is taking for the treatment of the compensable injury. APD 92299.
Pain
An ALJ may consider the level of pain an IE is experiencing, and how that may affect the IE’s ability to work. APD 001437.
Evidence that Disability Does Not Exist
Abandonment of Medical Treatment
[Cross-references: Abandonment of Medical (I18) (for Texas A&M employees, Section 502.067; for University of Texas employees, Section 503.067; for Department of Transportation employees, Section 505.057)].
Immigration Status
An IE’s status as an undocumented immigrant is not a bar to receiving benefits under the 1989 Act. Commercial Standard Fire and Marine Company v. Galindo, 484 S.W.2d. 635 (Tex. Civ. App.—El Paso 1972, writ ref’d n.r.e.); APD 022258-s. However, if an IE returns to work (even at light duty) and they are later terminated, laid off, or they quit, and the evidence shows that their medical condition has not changed, the IE may not establish disability if the sole reason they cannot get other employment is because of their status as an undocumented immigrant. APD 000529.
Full-Duty Release
If an IE is given a full-duty release, the ALJ may consider that in reaching a determination regarding disability. APD 032215.
Incarceration
Because disability is an economic concept, an IE cannot have disability for any period of time that the IE is incarcerated. This is so because the inability to earn the pre-injury wage is attributable to the incarceration, not the compensable injury. APD 023069.
Resignation
When an IE returns to work under a restricted-duty release and later resigns, disability ends if the ALJ determines that the IE is earning less than the AWW because they resigned. APD 041917. An IE’s voluntary resignation is a factor that the ALJ may consider, but resignation does not automatically preclude a finding of disability. APD 021818.
Reasonable Availability of Employment
An IE under a restricted-duty release is not required to look for work or prove that work is not available within the restrictions for purposes of establishing disability. However, even if the IE is under a doctor’s restricted medical release to work, disability may end if the IE is able to obtain and retain employment at wages equivalent to the preinjury wage. APD 91045. In order for disability to end, the evidence must show that the IE has not availed themselves of reasonably available employment opportunities that provide wages equivalent to the preinjury wage and are within the IE’s medical restrictions. APD 020352. [Cross-reference: Existence/Duration/Disability Raised by Allegation of Bona Fide Offer (I02)].
Retirement
An IE’s voluntary retirement from his or her pre-injury employer is evidence that disability has ended. APD 021818. Retirement is a factor for the ALJ to consider in determining whether the IE has disability. The mere fact that an IE retires after the date of injury does not automatically preclude a finding of disability after the retirement date. If the IE can prove that the compensable injury is still a cause of the inability to earn pre-injury wages after retirement, disability exists. APD 022499.
Salary Continuation
TLC Section 408.003(f) provides that “[s]alary continuation payments made by an employer for an employee’s disability resulting from a compensable injury shall be considered payment of income benefits for the purpose of determining the accrual date of any subsequent income benefits” under the 1989 Act. The AP has held that an IE who continues to receive his or her salary from the employer after the injury but does not work may still have disability because the IE was not performing personal services for the employer in exchange for the salary continuation. APD 201642.
Sole Cause
Disability ends if the IC can prove that a non-compensable preexisting condition or intervening injury (or some other factor unrelated to the compensable injury) is the sole cause of the IE’s inability to earn the pre-injury wage. APD 032713. Sole cause is an affirmative defense. APD 971727. Because sole cause is an affirmative defense, an IC that raises sole cause as a defense must specifically plead the issue and has the burden of proof. Texas Employers Insurance Association v. Page, 553 S.W.2d 98 (Tex. 1977); Texas Workers’ Compensation Fund v. Mandlbauer, 988 S.W.2d 750 (Tex. 1999).
Termination
When an IE returns to work under a restricted duty release after the injury and is later terminated, the question becomes whether it was the termination or the injury that caused the inability to obtain or retain preinjury wages. In such a case, an IE’s termination may end disability. APD 032971. Termination for cause does not necessarily preclude disability, but the ALJ may consider it in determining why an IE is unable to earn the preinjury wage. Thus, disability continues after termination if the compensable injury was a cause of the inability to earn the preinjury wage after termination. APD 032767.
Unemployment Benefits Application/Payment
An IE’s application for and receipt of unemployment benefits does not necessarily preclude a finding of disability. Aetna Casualty & Surety Co. v. Moore, 386 S.W.2d 639 (Tex. Civ. App.—Beaumont 1964, writ ref’d n.r.e.); APD 032289. Application for and receipt of unemployment benefits are factors the ALJ can consider to determine disability. APD 032129.
Return-to-Work Guidelines
ICs, health care providers, and employers shall use the disability duration values in the current edition of The Medical Disability Advisor, Workplace Guidelines for Disability Duration (MDA) as guidelines for the evaluation of expected or average return to work time frames. 28 Texas Admininstrative Code (TAC) Section 137.10(a) . The DWC return-to-work guidelines provide disability duration expectancies, and those expectancies are presumed to be a reasonable length of disability duration. 28 TAC Section 137.10(c) . However, the disability duration values in the guidelines are not absolute values and do not represent specific lengths or periods of time at which an IE must return to work; rather, the values represent points in time at which additional evaluation may take place if full medical recovery and return to work have not occurred. 28 TAC Section 137.10(e).