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 21, 2006. The hearing officer decided that: (1) the appellant (claimant) did sustain a compensable injury on ____________; (2) the compensable injury of ____________, does extend to include a focal posterior central 3 mm protrusion at L5-S1; (3) the claimant sustained disability from November 9, 2005, through March 12, 2006, but not thereafter; and (4) the claimant did not sustain disability from October 19 through November 8, 2005. The claimant appealed only a portion of Finding of Fact No. 6 and Conclusion of Law No. 5, urging that the hearing officer’s determination that she did not sustain disability from March 13, 2006, continuing through the date of the CCH was against the great weight and preponderance of the evidence. The respondent (carrier) urges affirmance of the period of no disability after March 12, 2006. The hearing officer’s determinations on compensability, on extent of injury, on the period of disability from November 9, 2005, through March 12, 2006, and on the period of no disability from October 19 through November 8, 2005, were not appealed and have become final pursuant to Section 410.169.
DECISION
Reversed and rendered.
FACTUAL SUMMARY
It was undisputed that the claimant worked as a commercial teller at a bank branch office and that her daily duties included lifting boxes or sacks of coins weighing about 25 pounds. In evidence is a letter of resignation, signed by the claimant on October 10, 2005, to be effective on October 21, 2005. The claimant testified that on ____________, she lifted a heavy box of coins ($500 worth of quarters) and felt a pop and burning in her back. It was undisputed that she worked her full shift the remainder of that day and the next few days, completing her duties until the date her resignation became effective. The claimant initially sought medical treatment from Dr. B on November 9, 2005. Dr. B released her to continue to work as of November 10, 2005, continuing until January 8, 2006, with restrictions, which included a lifting/carrying restriction of no more than 30 pounds. Dr. B’s diagnoses are lumbar disc protrusion, right leg radiculopathy with bilateral parasthesia and moderate to severe, traumatic lumbar spine sprain/strain injury. These same restrictions were later extended by Dr. B until March 5, 2006. The claimant was subsequently examined by Dr. E on March 10, 2006, who opined that the claimant appeared to have sustained at most a lumbar strain. Dr. E opined that it would be reasonable to perform a lower extremity EMG/NCV study to rule out any evidence of radiculopathy and to consider lumbar epidural steroid injections if the claimant significantly responded to the first injections. Dr. E recommended that she be released to work with restrictions. It was undisputed that the employer never made a bona fide offer of employment and that no doctor has released the claimant to return to work full duty.
DISABILITY
Disability means the inability to obtain and retain employment at wages equivalent to the preinjury wage because of a compensable injury. Section 401.011(16). The Appeals Panel has said that a light-duty or conditional work release is evidence that disability continues. Appeals Panel Decision (APD) 91045, decided November 21, 1991. We have also held that a claimant under a light-duty work release does not have an obligation to look for work or show that work was not available within his or her restrictions. APD 970597, decided May 19, 1997. The hearing officer found that the claimant did not have disability after March 12, 2006. The hearing officer discussed that the claimant’s testimony concerning her ability to work lacked credibility but found the evidence was sufficient to establish a period of disability from November 9, 2005, through March 12, 2006. A Functional Capacity Evaluation (FCE) dated March 13, 2006, indicated that the claimant was capable of light-duty work. It indicated in part that the claimant demonstrated a lifting ability of 20 pounds and that the job of commercial teller met the requirements of a sedentary job. At the CCH, the evidence reflected that the claimant had daily duties of lifting sacks and boxes of coins weighing about 25 pounds. Based on the results of the March 13, 2006, FCE, Dr. E completed a Work Status Report (DWC-73), which indicated that the claimant was allowed to work as of March 10 through June 10, 2006, with restrictions, which included no lifting/carrying objects more than 10 pounds. Dr. B, in a response to Dr. E’s evaluation, agreed that the claimant would be capable of returning back to work with no repetitive lifting exceeding 10 pounds. Dr. E’s limitations in March of 2006 were more restrictive than the initial 30-pound lifting restriction recommendation made by Dr. B in November of 2005.
We conclude that the hearing officer erred in determining that the claimant did not have disability after March 12, 2006, because that determination is not supported by the evidence, and it is so against the great weight and preponderance of the evidence to be clearly wrong and manifestly unjust. We therefore reverse the decision of the hearing officer that the claimant did not have disability from March 13, 2006, continuing through the date of the CCH and render a decision that the claimant had disability from March 13, 2006, through the date of the CCH.
The true corporate name of the insurance carrier is LIBERTY INSURANCE CORPORATION and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEMS
350 NORTH ST. PAUL, SUITE 2900
DALLAS, TEXAS 75201.
Cynthia A. Brown
CONCUR:
Thomas A. Knapp – Appeals Judge
Margaret L. Turner – Appeals Judge