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 24, 2001. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) is entitled to supplemental income benefits (SIBs) for the 1st quarter, beginning April 25, 2001, and ending July 24, 2001, but is not entitled to SIBs for the 2nd quarter, beginning July 25, 2001, and ending October 23, 2001. The claimant appealed the hearing officer’s determination regarding the 2nd SIBs quarter, arguing that he was entitled to SIBs because he was enrolled in a full-time, Texas Rehabilitation Commission (TRC)-sponsored program during the qualifying period for the 2nd SIBs quarter. The respondent (carrier) responded, seeking affirmance. There is no appeal of the hearing officer’s decision that the claimant is entitled to SIBs for the 1st quarter.
DECISION
The hearing officer’s decision that the claimant is not entitled to SIBs for the 2nd quarter is reversed and remanded.
This case hinges upon whether the claimant met the requirements of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d)(2) (Rule 130.102(d)(2)), which provides as follows:
(d)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:
(2)has been enrolled in, and satisfactorily participated in, a full time vocational rehabilitation program sponsored by the [TRC] during the qualifying period.
The claimant contends that he was enrolled in and satisfactorily participated in a full-time vocational rehabilitation program sponsored by the TRC during the qualifying period for the second quarter, which was from April 12, 2001, to July 11, 2001. The parties do not appear to dispute that during the second quarter qualifying period, the claimant participated in a program to earn his high school equivalency (GED) degree. Training to obtain his GED exam is part of the claimant’s TRC Individualized Plan for Employment (IPE), according to a copy of the IPE introduced at the CCH. In addition, in evidence is a letter from the TRC, dated May 21, 2001, stating that the claimant was a client with the TRC and is currently involved with GED training for 12 hours a week. The letter is signed by the TRC counselor to whom the claimant referred in his testimony about his TRC training.
The hearing officer’s Finding of Fact No. 12 states: “[t]here is no evidence in the record that shows or otherwise establishes that the Claimant was enrolled in a full-time program sponsored by the [TRC] during the qualifying period for the first (1st) or the second (2nd) quarters.”
In Texas Workers’ Compensation Commission Appeal No. 010483-S, decided April 20, 2001, the Appeals Panel stated as follows in regard to what constitutes a full-time TRC vocational rehabilitation program:
“. . . .the hearing officer noted that the evidence did not demonstrate that the claimant “had in any way been enrolled in and participated in anything resembling a full time program.” To determine what programs are to be considered full-time vocational rehabilitation programs, we have previously turned to the preamble and comments to Rule 130.102(d)(2). As we noted in Texas Workers’ Compensation Commission Appeal No. 000001, decided February 16, 2000, the preamble to Rule 130.102(d)(2) states that any program provided by the TRC should be considered a full-time program. The preamble further states that “[t]his concept precludes an insurance carrier from requiring an injured employee to participate in a vocational rehabilitation program sponsored by the TRC . . . and then expect the injured employee to continue to seek employment commensurate with the injured employee’s ability over and above the rehabilitation plan requirements; seeking employment may be a part of the rehabilitation program.” In this instance, the evidence, and more specifically, the IPE, the TRC letter, and the claimant’s testimony, clearly establish that the claimant was enrolled in a vocational rehabilitation program sponsored by the TRC and, based upon the unambiguous language in the preamble, that program was to be considered a full-time program. The hearing officer erred in determining that the claimant’s program was not a full-time program, based upon her apparent disagreement with the time table set by the TRC for the claimant’s progression through vocational rehabilitation.
In the instant case, there is evidence from the TRC and the claimant that the claimant participated in a TRC vocational rehabilitation program during the qualifying period for the 2nd quarter of SIBs. There is also a report of GED test scores and the claimant’s testimony concerning his favorable test results on the parts of the test he has taken. Under these circumstances, we believe that the hearing officer erred in making Finding of Fact No. 12. Consequently, we reverse the hearing officer’s decision that the claimant is not entitled to SIBs for the 2nd quarter and remand the case to the hearing officer for the hearing officer to make findings of fact and conclusions of law regarding the good faith criterion under Rule 130.102(d)(2) for the 2nd quarter of SIBs.
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 self-insured is AIU INSURANCE COMPANY. and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS STREET, SUITE 750, COMMODORE I
AUSTIN, TEXAS 787201.
Robert W. Potts – Appeals Judge
CONCUR:
Sue M. Kelley – Appeals Judge
Thomas A. Knapp – Appeals Judge