This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on November 1, 2001. The hearing officer resolved the issues before him by determining that (1) appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the fifth, sixth, seventh, and eighth quarters; (2) respondent (carrier) is relieved from liability for SIBs for all of the fifth quarter because of claimant’s failure to timely file an Application for[SIBs] (TWCC-52) for that quarter; (3) and claimant’s weekly earnings to be used to determine the monthly SIBs benefit rate for the qualifying periods running from September 22, 2000, through December 22, 2000, and December 22, 2000, through March 22, 2001, are $0.00. Claimant appealed the determination of relief from liability regarding SIBs for the fifth quarter because of the circumstances surrounding his late filing of his TWCC-52. Asserting that he did meet the good faith SIBs requirement, he appealed the determination of nonentitlement regarding the sixth through eighth quarters on the ground that he was employed during those quarters. Carrier responded, asserting that the determination of nonentitlement to SIBs for the fifth through eighth quarters should be affirmed and objecting to evidence presented by claimant for the first time on appeal. Additionally, carrier indicated that it disagreed with the determination that claimant’s weekly earnings to be used to determine the monthly SIBs benefit rate are $0.00. Carrier’s response was timely as a response, but was not timely as an appeal.
DECISION
We affirm in part and reverse and render in part.
The parties stipulated that the qualifying period for the fifth quarter was from September 22, 2000, through December 21, 2000; that the qualifying period for the sixth quarter was from December 22, 2000, through March 22, 2001; that the qualifying period for the seventh quarter was from March 23, 2001, through June 21, 2001; and that the qualifying period for the eighth quarter was from June 22, 2001, through September 20, 2001. The parties also stipulated that the fifth quarter ran from January 4, 2001, through April 4, 2001; that the sixth quarter was from April 5, 2001, through July 4, 2001; that the seventh quarter was from July 5, 2001, through October 3, 2001; that the eighth quarter was from October 4, 2001, through January 2, 2002; and that claimant did not search for employment during the qualifying periods for the fifth through eighth quarters. Claimant testified that he received SIBs for the first quarter, but conceded that he had returned to work and had not been entitled to SIBs for the second through fourth quarters. Claimant said he was again taken off work on November 2, 2000, which was during the qualifying period for the fifth quarter, due to pain from his injury. Claimant testified at the hearing that he had neither worked nor looked for work since November 2, 2000, and that he had no ability to work.
Claimant contends that the hearing officer erred in determining that carrier is relieved of liability for SIBs for the fifth quarter. The record reflects that claimant signed and sent in his fifth quarter TWCC-52 on April 8, 2001, after the fifth quarter had already ended on April 4, 2001. Claimant does not contend that he timely submitted his TWCC-52 for the fifth quarter, instead he states that his increased symptoms had just occurred in the fifth quarter qualifying period and he sent the application in when he could. The hearing officer noted that claimant was paid first quarter SIBs, but that claimant did not apply for subsequent quarters after carrier sent an application to him for second quarter SIBs. We conclude that the hearing officer did not err in determining that carrier is relieved of liability for fifth quarter SIBs.
At the hearing, the claimant contended that he had no ability to work during the qualifying period for the fifth quarter after November 2, 2000, and also during the qualifying periods for the sixth through eighth quarters. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d)(4) (Rule 130.102(d)(4)) states that an injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee “has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work[.]” The hearing officer determined that claimant did not provide a narrative report from a doctor which specifically explains how the injury causes the claimant a total inability to work during any of the qualifying periods for the fifth through eighth quarters, inclusive. Nothing in our review of the record indicates that that determination is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Because claimant did not meet his burden to prove that he had no ability to work and he testified that he did not work or look for work, no sound basis exists for us to reverse the hearing officer’s determinations regarding good faith and SIBs for the sixth through eighth quarters. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Regarding entitlement to SIBs for the fifth quarter, it is undisputed that claimant was employed doing his regular job during a portion of the qualifying period for that quarter. Claimant said he had returned to his regular job full time and was working during the qualifying period for the second through fourth quarter filing periods and part of the fifth quarter qualifying period, until November 2, 2000. Claimant attached to his TWCC-52 for that quarter the evidence regarding his earnings. Therefore, we conclude that the hearing officer erred in determining that claimant did not meet the good faith SIBs requirement regarding the fifth quarter. We reverse that determination because of the evidence that he had returned to his job with his employer and, thus, had returned to work in a position relatively equal to his ability to work.[1]See Rule 130.102(d)(1); Texas Workers’ Compensation Commission Appeal No. 011959, decided September 19, 2001. We note that compliance with only one subsection of Rule 130.102(d) will establish good faith. See Texas Workers’ Compensation Commission Appeal No. 001099, decided June 21, 2000. However, given the fact that claimant filed his TWCC-52 late, carrier is relieved of liability and SIBs are not payable for that quarter.
Claimant argued for the first time on appeal that he was in fact employed in good faith during the qualifying periods for the sixth through eighth quarters in that he earned $175.00 per month; apparently, as a part-time financial secretary for an organization. In support of this contention, he attached supporting documents to his appeal which were not submitted at the hearing. Claimant indicated that he inadvertently forgot to mention this evidence at the hearing. However, it is clear that claimant was aware of this evidence before the hearing. The evidence does not meet the requirements for consideration for the first time on appeal and we will not consider that evidence. Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ).
Claimant contends that the hearing officer erred in determining that he has not been entitled to SIBs for 12 consecutive months. We have affirmed the determination that claimant was not entitled to SIBs for the sixth through eighth quarters. However, because we reverse the determination that claimant was not entitled to SIBs for the fifth quarter, we also reverse the determination that claimant has not been entitled to SIBs for 12 consecutive months. See, generally, Texas Workers’ Compensation Commission Appeal No. 981713, decided September 9, 1998 (Unpublished).
We affirm that part of the hearing officer’s decision and order that determined that claimant is not entitled to SIBs for the sixth through eighth quarters. We reverse that part of the hearing officer’s decision and order that determined that claimant is not entitled to SIBs for the fifth quarter and render a decision that claimant did establish SIBs entitlement for that quarter. We affirm the determination that carrier is relieved of liability for SIBs for the fifth quarter. We reverse the determination that claimant has not been entitled to SIBs for 12 consecutive months.
According to information provided by carrier, the true corporate name of the insurance carrier is EMPLOYERS GENERAL INSURANCE and the name and address of its registered agent for service of process is
ROBERT RAMSOWER/EMPLOYERS GENERAL
1601 ELM, SUITE 1600
DALLAS, TEXAS 75221.
Judy L. S. Barnes – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Thomas A. Knapp – Appeals Judge
- The hearing officer made a direct result determination in claimant’s favor regarding the fifth quarter. ↑