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 February 9, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the 12th and 13th quarters (the issue regarding the 13th quarter was added at the request of the parties and upon a finding of good cause by the hearing officer). The appellant (carrier) appeals the hearing officer’s determination of entitlement for both the 12th and 13th quarters. The claimant responded, urging affirmance.
DECISION
Affirmed in part and reversed and rendered in part.
The parties stipulated that the claimant sustained a compensable injury on [date of injury], which resulted in an impairment rating of 15% or greater; the claimant has not commuted any portion of his impairment income benefits; the qualifying periods for the 12th and 13th quarters of SIBs were from May 23 through August 21, 2011, and from August 22 through November 20, 2011; and during the qualifying periods for the 12th and 13th quarters the claimant was unemployed. It was undisputed that the required number of active work searches per week was three.
Eligibility criteria for SIBs entitlement are set forth in Section 408.142. Section 408.142 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.
28 TEX. ADMIN. CODE § 130.102(d)(1) (Rule 130.102(d)(1)) provides that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the following work search requirements each week during the entire qualifying period:
(A) has returned to work in a position which is commensurate with the injured employee’s ability to work;
(B) has actively participated in a vocational rehabilitation program [(VRP)] as defined in [Rule] 130.101 of this title (relating to [d]efinitions);
(C) has actively participated in work search efforts conducted through the Texas Workforce Commission (TWC);
(D) has performed active work search efforts documented by job applications; or
(E) 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 claimant argued that he met the requirements of entitlement to SIBs through a combination of the work search requirements. As previously noted, the parties stipulated that the claimant was unemployed during the qualifying periods at issue. The hearing officer noted in the Background Information portion of her decision that the claimant had a light duty ability to work. The claimant’s ability to work in some capacity is supported by the evidence. The claimant maintained that he performed work search efforts each week throughout the qualifying periods at issue. The hearing officer based her determination of entitlement to SIBs for both the 12th and 13th quarters on her finding that the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period by performing active work search efforts documented by job applications.
The hearing officer’s determination that the claimant is entitled to SIBs for the 12th quarter is supported by sufficient evidence and is affirmed.
However, the evidence reflects that for week seven of the 13th quarter qualifying period the claimant failed to list any job searches in his application for SIBs. The claimant maintains he is still entitled to SIBs for the 13th quarter because he “remained enrolled” in English as a Second Language (ESL) class as directed by [rehabilitation provider], a private vocational rehabilitation provider.
The carrier attached to its appeal a subpoena response from the TWC and the actual ESL sign-in sheets. The carrier acknowledged in its appeal that these documents were not offered into evidence at the CCH. Documents submitted for the first time on appeal are generally not considered unless they constitute newly discovered evidence. See generally, Appeals Panel Decision (APD) 091375, decided December 2, 2009; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). In determining whether new evidence submitted with an appeal or response requires remand for further consideration, the Appeals Panel considers whether the evidence came to the knowledge of the party after the hearing, whether it is cumulative of other evidence of record, whether it was not offered at the hearing due to a lack of diligence, and whether it is so material that it would probably result in a different decision. See APD 051405, decided August 9, 2005. Upon review we cannot agree that these documents meet the requirements of newly discovered evidence and they were not considered.
In reviewing a “great weight” challenge, we must examine the entire record to determine if: (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence. See Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
Section 408.1415(a)(1) provides that to be eligible to receive SIBs, a recipient must provide evidence satisfactory to the Division of active participation in a VRP conducted by the Department of Assistive and Rehabilitative Services (DARS) or a private vocational rehabilitation provider. Rule 130.101(8) defines VRP as any program, provided by DARS, a comparable federally-funded rehabilitation program in another state under the Rehabilitation Act of 1973, as amended, or a private provider of vocational rehabilitation services that is included in the Registry of Private Providers of Vocational Rehabilitation Services, for the provision of vocational rehabilitation services designed to assist the injured employee to return to work that includes a VRP. A VRP, also known as an Individual Plan for Employment at DARS, includes, at a minimum, an employment goal, any intermediate goals, a description of the services to be provided or arranged, the start and end dates of the described services, and the injured employee’s responsibilities for the successful completion of the plan.
In evidence are various vocational rehabilitation reports from [rehabilitation provider] which reference a [rehabilitation provider] Individual Plan for Employment (RIPE). Although a RIPE was referenced in documentation in evidence from [rehabilitation provider], no RIPE that identified an employment goal, any intermediate goals, a description of the services to be provided or arranged, the start and end dates of the described services, and the injured employee’s responsibilities for the successful completion of the plan was in evidence. Since the RIPE was not in evidence the claimant did not establish that he actively participated in a private VRP as defined in Rule 130.101 which would meet the requirements for entitlement to SIBs.
As previously noted, Rule 130.102 provides that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the specified work search requirements each week during the entire qualifying period. The preamble to Rule 130.102 stated “[s]ubsection(d)(1) is also amended to add ‘each week’ before ‘during’ and ‘entire’ before ‘qualifying period’ to clarify that the injured employee’s work search efforts were to continue each week during the entire qualifying period.” (34 Tex. Reg. 2140, 2009). The hearing officer found that the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period by performing active work search efforts document by job applications. However, the evidence reflects that the claimant failed to list any job searches in his application for SIBs for week seven of the 13th quarter qualifying period. The evidence did not establish that during week seven of the qualifying period of the 13th quarter of SIBs that the claimant returned to work in a position which is commensurate with his ability to work; actively participated in a VRP; actively participated in work search efforts conducted through the TWC; performed active work search efforts document by job applications; or was unable to perform any type of work in any capacity. Accordingly, the hearing officer’s determination that the claimant is entitled to SIBs for the 13th quarter is reversed and a new decision rendered that the claimant is not entitled to SIBs for the 13th quarter.
SUMMARY
The hearing officer’s determination that the claimant is entitled to SIBs for the 12th quarter is affirmed.
The hearing officer’s determination that the claimant is entitled to SIBs for the 13th quarter is reversed and a new decision rendered that the claimant is not entitled to SIBs for the 13th quarter.
The true corporate name of the insurance carrier is ACE AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Margaret L. Turner – Appeals Judge
CONCUR:
Cynthia A. Brown – Appeals Judge
Thomas A. Knapp – Appeals Judge