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 November 6, 2001. With respect to the issues before him, the hearing officer determined that the appellant’s (claimant) compensable injury of ___________, extends to and includes an anterior cruciate ligament (ACL) tear of the left knee and that the claimant had disability beginning on July 2, 2001, and continuing through September 10, 2001. The claimant appeals the hearing officer’s determination that disability ended on September 10, 2001. The respondent (self-insured) responds, urging affirmance. The determination that the compensable injury extends to and includes an ACL tear of the left knee has not been appealed and has become final. Section 410.169.
DECISION
The hearing officer’s decision is reversed and a new decision is rendered that the claimant has disability through the date of the CCH.
There is no dispute that the claimant sustained a compensable injury to her left knee while playing in a faculty/student volleyball game on ___________, and that she was initially diagnosed with a dislocated patella. The claimant was placed on restricted duty on March 5, 2001. The claimant testified that although she continued working as a school teacher, she had difficulty working because there was no other person available to assist her in controlling the classroom, her knee was swollen, and she had limited mobility. On April 27, 2001, an MRI was performed, which depicted the torn ACL. On May 13, 2001, the claimant quit her job because she felt she could no longer perform her duties because of the pain from her injury. She had surgery to repair the torn ACL and on July 2, 2001, was taken completely off work by her doctor. The claimant further testified that on September 9, 2001, she was released to return to work with restrictions; that she contacted her employer on September 12, 2001, and inquired about obtaining a job; and that she has not worked since May 13, 2001, and has never been given a full-duty release.
“Disability” is defined in the 1989 Act as “the inability because of a compensable injury to obtain or retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). The claimant has the burden of proving that she has disability, as well as the period(s) of disability. Texas Workers’ Compensation Commission Appeal No. 941566, decided January 4, 1995. The compensable injury need not be the sole cause of the disability. Texas Workers’ Compensation Commission Appeal No. 960054, decided February 21, 1996; Texas Workers’ Compensation Commission Appeal No. 941012, decided September 14, 1994. In Texas Workers’ Compensation Commission Appeal No. 950246, decided March 31, 1995, the Appeals Panel reversed a hearing officer’s determination that a claimant did not have disability during the period of time that he was released to light duty and rendered a new decision that the claimant had disability for that period. In so doing, Appeal No. 950246 stated:
As we have previously noted “a restricted release to work, as opposed to an unrestricted release, is evidence that the effects of the injury remain, and disability continues.” Texas Workers’ Compensation Commission Appeal No. 92432, decided October 2, 1992. See also Texas Workers’ Compensation Commission Appeal No. 91045, decided November 21, 1991 (“Where the medical release is conditional and not a return to full duty status because of the compensable injury, disability, by definition, has not ended unless the employee is able to obtain and retain employment at wages equivalent to his preinjury wage.”). In addition, we have stated that “an employee under a conditional work release does not have the burden of proving inability to work.” Appeal No. 941566, supra (quoting Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993). Finally, we have noted that where claimant is released to return to work light duty, there is no requirement that the claimant look for work. Texas Workers’ Compensation Commission Appeal No. 941092, decided September 28, 1994; Appeal No. 91045, supra. That is, “an employee under a conditional medical release [does] not have to show that work was not available.” Texas Workers’ Compensation Commission Appeal No. 941261, decided November 2, 1994.
In this case, we note that the language from the hearing officer’s decision indicates that he erroneously determined that the claimant did not establish disability because “it does not appear that her job seeking efforts were sincere.” While such may be the case, it does not resolve the disability issue. On the contrary, as is evidenced by the cases cited above, it is well settled that a conditional or light-duty release is evidence that disability continues. A claimant under a light-duty release does not have the obligation to look for work or to show that work was not available, unlike the requirements for supplemental income benefits. The hearing officer’s determination that the claimant did not have disability in this case is contrary to our prior decisions, which have consistently indicated that “an employee under a conditional medical release does not have to show that work is not available and under these circumstances, disability has not ended unless the claimant in fact is able to obtain and retain employment.” Texas Workers’ Compensation Commission Appeal No. 94820, decided August 9, 1994. Because we believe that the hearing officer applied an incorrect standard in resolving the disability issue, we reverse and render a new decision that disability continued through the date of the CCH based on the evidence of record, including the medical records and the claimant’s testimony. The self-insured is ordered to pay medical and income benefits in accordance with the 1989 Act and the Texas Workers’ Compensation Commission’s rules.
The true corporate name of the self insured is (SELF-INSURED) and the name and address of its registered agent for service of process is
AJ
ADDRESS
(CITY), TEXAS (ZIP CODE).
Philip F. O’Neill – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Michael B. McShane – Appeals Judge