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 December 28, 2005. With regard to the only issue before him the hearing officer determined that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the seventh quarter.
The appellant (carrier) appealed both the findings that the claimant’s unemployment was a direct result of the impairment and that the claimant attempted in good faith to obtain employment commensurate with his ability to work, contending that the claimant had failed to adequately document his job search efforts during certain weeks of the qualifying period. The claimant responded emphasizing his testimony and contending that the hearing officer’s decision is supported by the evidence.
DECISION
Reversed and a new decision rendered.
The parties stipulated that the claimant sustained a compensable (low back) injury on ___, that he had an impairment rating of 15% or more, that impairment income benefits had not been commuted and that the qualifying period for the seventh quarter was from June 19 through September 17, 2005. The claimant apparently had spinal surgery in August/September 2002. The hearing officer comments, and the evidence supports, that the claimant has been released to return to work with some restrictions on standing, sitting, walking, bending and lifting. The claimant however did not work during the qualifying period.
Section 408.142 as amended by the 79th Legislature, effective September 1, 2005, references the requirements of Section 408.1415 regarding work search compliance standards. Section 408.1415(a) states that the (Texas Department of Insurance, Division of Workers’ Compensation (Division)) commissioner by rule shall adopt compliance standards for SIBs recipients. In that no such rules have been implemented as of this date, we refer to the eligibility criteria for SIBs entitlement in 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102). Commissioner’s Bulletin No. B-0058-05 dated September 23, 2005, provides that until new SIBs rules are adopted, the Division’s Rules 130.100-130.110 govern the eligibility and payment of SIBs and remain in effect until they are amended, repealed, or modified by the Commissioner of Workers’ Compensation. Also, Rule 130.100(a) provides that entitlement or nonentitlement to SIBs shall be determined in accordance with the rules in effect on the date a qualifying period begins.
With regard to the direct result criterion, Rule 130.102(c) provides that an injured employee has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment from the compensable injury if the impairment from the compensable injury is a cause of the reduced earnings. Based on the evidence before us, we conclude that the hearing officer’s finding that the claimant’s unemployment was a direct result of impairment from the compensable injury is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
The claimant relies on his testimony and documentation to meet his work search requirements. Rule 130.102(d)(5) provides 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 provided sufficient documentation as described in Rule 130.102(e) to show that he or she has made a good faith effort to obtain employment. Rule 130.102(e) provides that, except as provided in subsection (d)(1), (2), (3), and (4) of Rule 130.102, an injured employee who has not returned to work and is able to return to work in any capacity shall look for employment commensurate with his or her ability to work every week of the qualifying period and document his or her job search efforts, and that in determining whether or not the injured employee has made a good faith effort to obtain employment under subsection (d)(5), the reviewing authority shall consider the information provided by the injured employee, which may include, but is not limited to information listed in subsection (e)(1)-(11).
In this case the claimant, as part of his Application for SIBs (TWCC-52), has submitted some 74 job contacts apparently made between June 2005 and September 2005. In the portion of TWCC-52 entitled “Job Search Efforts During Qualifying Period” the claimant lists 9 contacts for painter, laborer and welder and in the block designated “Month Day Year” he puts “6/05.” Similarly there are 18 job contacts dated “7/05,” 22 job contacts dated “8/05” and 26 dated “9/05.” All the entries are in the same neat handwriting. No specific days or weeks are specified. In addition, attached to the claimant’s TWCC-52 are a number of business cards and specific dated applications completed by the claimant or in his behalf. However those applications indicate that six were made in the 4th week between July 10 and July 16, 2005, five were made in the following week, four were made in the 6th week, one in the 7th week, three in the 8th week, three in the 9th week and two in the 12th week. There were no applications for the 1st, 2nd, 3rd, 10th, 11th and 13th weeks of the qualifying period.
Although the above information was referenced at the CCH the hearing officer simply commented that the “Claimant looked for work each week of the qualifying period for the seventh quarter,” apparently based on the claimant’s testimony. In Appeals Panel Decision (APD) 022969, decided January 9, 2003, the Appeals Panel cited APD 992321, decided November 22, 1999, and held that the documentation requirement of Rule 130.102(e) is mandatory and that a hearing officer could not consider nondocumented job search efforts in arriving at the good faith determination. See also APD 992247, decided November 23, 1999. APD 992247 also specifically pointed out that the documentation requirement cannot be satisfied through testimony. Consistent with existing precedent, as discussed above, such documentation was mandatory and the claimant’s testimony alone could not establish a documented job search during the 1st, 2nd, 3rd, 10th, 11th and 13th weeks of the qualifying period. Consequently, the claimant failed to document his job search efforts during the 1st, 2nd, 3rd, 10th, 11th and 13th weeks thereby failing to meet the requirements of Rule 130.102(e).
The hearing officer’s decision is not supported by the evidence and therefore we reverse the hearing officer’s decision that the claimant is entitled to SIBs for the seventh quarter and render a new decision that the claimant is not entitled to SIBs for the seventh quarter.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. RUSSELL RAY OLIVER, PRESIDENT
6210 HIGHWAY 290 EAST
AUSTIN, TEXAS 78723.
Thomas A. Knapp
CONCUR:
Robert W. Potts – Appeals Judge
Margaret L. Turner – Appeals Judge