This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). In Texas Workers’ Compensation Commission Appeal No. 011100, decided July 2, 2001, the Appeals Panel affirmed determinations on maximum medical improvement and remanded for the hearing officer to determine certain periods of disability and post-injury earnings (PIE). A contested case hearing (CCH) on remand was held on August 23, 2001. The hearing officer determined that the respondent (claimant) had disability from November 14, 1999, through August 11, 2000; from September 9, 2000, through October 20, 2000; and from November 4, 2000, through the date of the CCH.
The appellant (self-insured) appeals, contending that the claimant has not sustained any periods of disability or, in the alternative, that the self-insured is entitled to deduct PIE from the calculations of temporary income benefits (TIBs). The self-insured also appeals an evidentiary ruling of the hearing officer. The claimant responds, first asserting that the self-insured’s appeal is not timely and, in the alternative, urging affirmance.
DECISION
Affirmed in part and reversed and rendered in part.
The claimant asserts that the self-insured’s appeal was not timely; however, our calculations using Section 410.202, amended June 17, 2001, excluding Saturdays, Sundays, and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal process indicates that the self-insured’s appeal was timely.
The claimant was employed by a health agency of the self-insured (employer 1) as a licensed vocational nurse (LVN) performing physically demanding nursing duties. At the same time, the claimant also had concurrent employment with a health outreach service (employer 2) as an LVN performing duties that were not physically demanding. After the claimant’s compensable injury with employer 1, the claimant was unable to work the heavier duties of employer 1 but was able to continue working for employer 2 because of the nature of the lighter duties of that employment. The number of hours the claimant worked for employer 2 depended on the needs of employer 2 and the availability of the claimant. As we noted in Appeal No. 011100, supra:
The claimant testified that after his injury he had greater availability because he was no longer working for employer 1. The records submitted at the hearing indicate that the claimant grossed $9,315.63 in 1998, and [$]11,367.60 in 1999, while working for employer 2.
The hearing officer found that all of the claimant’s earnings from employer 2 were due to concurrent employment and were not to be deducted by the self-insured in calculating TIBs. Appeal No. 011100, held that that determination was error because the hearing officer had determined that not working for employer 1 enabled the claimant to increase the hours the claimant worked for employer 2 and the result was that the claimant’s earnings from working for employer 2 increased. The Appeals Panel, on remand, directed the hearing officer to determine what periods, if any, on or after November 14, 1999, the date of injury, the claimant had disability as defined in Section 401.011(16). The Appeals Panel directed:
In this case, the wage equivalency test for establishing disability must be based only on the wages the claimant earned with employer 2 that are in excess of the wages the claimant would have been expected to earn with employer 2 under the preinjury conditions of being concurrently employed by employers 1 and 2.
The hearing officer correctly applied the methodology and determined that the claimant’s average weekly wage (AWW) with employer 1 was $562.00. (The claimant’s monthly salary, $2,033.00, plus benefits, $400.00, divided by 4.33 equals $562.00.) We affirm that calculation.
The hearing officer also determined that if the claimant had continued to work for employer 2 under the preinjury conditions, “it is expected that Claimant’s earnings would have increased at the same rate as it had increased in the previous year that being $2,000.00 [from $9,315.63 in 1998 to $11, 367.60 in 1999] for a total salary of $13,368.00.” There is no evidence to support such a finding; that finding is based on speculation. Accordingly, we reverse that finding as not being supported by the evidence. The hearing officer then divided $13,368.00 by 52 weeks to arrive at an AWW of $257.00 of post-injury earnings from employer 2. In that we are reversing the unsupported $2,000.00 increase, using the hearing officer’s methodology, we divide $11,367.60, the claimant’s 1999 wage, by 52 weeks to arrive at an AWW of $218.61 from employer 2.
Although the hearing officer did not make clear his methodology in determining disability, using Carrier’s Exhibit No. 7 showing the claimant’s earnings from employer 2 from January 30, 1998, through November 17, 2000, we were able to conclude that the hearing officer determined that the claimant did not have disability where the aggregate earnings exceeded $780.61 ($218.61 plus $562.00) a week or $1,561.22 bi-weekly. Using that methodology, with the exception that the claimant’s AWW from employer 2 is reduced from $257.00, as calculated by the hearing officer, to $218.61, as calculated above, we arrive at very similar periods of disability, with the exception that, apparently, a $1,000.00 “BNE” payment on August 29, 2000, was placed in the August 11 through August 25, 2000, pay period when it should have been placed in the August 25 through September 8, 2000, pay period. This has the effect of extending the claimant’s disability from November 14, 1999, through August 25, 2000, rather than August 11, 2000, as found by the hearing officer. Consequently, we reverse the hearing officer’s decision and render a decision that the claimant had disability from November 14, 1999, through August 25, 2000, in addition to the other periods of disability found by the hearing officer. For the periods that the claimant had disability and had PIE, Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 129.2 (Rule 129.2) is applicable.
The self-insured appeals the evidentiary ruling of the hearing officer excluding Carrier’s Exhibit No. 9R and certain wage statements of employers 1 and 2, and another employer, on the ground for lack of timely exchange. We review a hearing officer’s evidentiary rulings on an abuse-of-discretion standard. In view of the self-insured’s representation that the records were in the self-insured’s possession for some period of time, and being more than 15 days after the benefit review conference, before they were exchanged, we find no abuse of discretion.
The hearing officer’s decision and order are affirmed in part and reversed and rendered in part.
The true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and physical address of its registered agent for service of process is
RON JOSSELET, EXECUTIVE DIRECTOR
STATE OFFICE OF RISK MANAGEMENT
300 W. 15TH STREET
WILLIAM P. CLEMENTS STATE OFFICE BLDG., 6TH FLOOR
AUSTIN, TEXAS 78701.
The State Office of Risk Management would request that both the physical address and mailing address be included in the final decision and order. The mailing address is
RON JOSSELET, EXECUTIVE DIRECTOR
THE STATE OFFICE OF RISK MANAGEMENT
P.O. BOX 13777
AUSTIN, TEXAS 78711-3777.
Thomas A. Knapp – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Robert E. Lang
Appeals Panel
Manager/Judge