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At a Glance:
Title:
APD 171502
Date:
September 1, 2017

APD 171502

September 1, 2017

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 May 22, 2017, with the record closing on May 23, 2017, in (city), Texas, with Jacquelyn Coleman presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the date of injury is (date of injury); (2) the respondent (claimant) sustained a compensable injury on (date of injury), and (3) the claimant had disability resulting from the compensable injury beginning on February 3, 2017, and continuing through the date of the CCH.

The appellant (carrier) appeals the hearing officer’s determination as being contrary to the preponderance of the evidence. The appeal file does not contain a response from the claimant.

DECISION

Affirmed in part and reversed and remanded in part. 

The claimant, a long-haul delivery driver, testified that he sustained an injury to his left arm on (date of injury), while delivering a heavy refrigerator.

The hearing officer’s determinations that the date of injury is (date of injury), and that the claimant sustained a compensable injury on (date of injury), are supported by sufficient evidence and are affirmed.

Section 401.011(16) defines disability as the inability because of a compensable injury to obtain and retain employment at wages equivalent to the pre-injury wage. The claimant testified that he first sought medical attention for the injury at Clinic where he was released to return to work with restrictions. The claimant further testified that the employer was unable to accommodate his work restrictions. In evidence are records of the claimant’s initial encounter at Clinic dated February 3, 2017, releasing him to return to work with restrictions.

In the Discussion section of her Decision and Order the hearing officer stated:

[The] [c]laimant has not worked since February 2, 2017. . . . The evidence presented supports [the] [c]laimant’s position that he sustained a compensable injury on (date of injury), and he had disability beginning on February 3, 2017, and continuing through the date of the hearing.

At the CCH, however, the claimant testified that he was currently working for a different employer; that he was earning $2.50 less per hour than he was making at the time of the injury made the basis of this claim; and that he was able to work overtime hours for his new employer. The hearing officer’s statement, upon which her disability determination is based, in part, that the claimant had not worked since February 2, 2017, is inconsistent with the uncontroverted testimony and constitutes a material misstatement of the evidence and legal error. We accordingly reverse the hearing officer’s disability determination and remand the issue of disability to the hearing officer to make findings of fact, conclusions of law and render a decision which are supported by the evidence determining whether the claimant had disability resulting from the compensable injury of (date of injury), and if so, for what periods.

SUMMARY

We affirm the hearing officer’s determination that the date of injury is (date of injury).

We affirm the hearing officer’s determination that the claimant sustained a compensable injury on (date of injury).

We reverse the hearing officer’s disability determination and remand the issue of disability to the hearing officer to make findings of fact, conclusions of law and render a decision which are supported by the evidence determining whether the claimant had disability resulting from the compensable injury of (date of injury), and if so, for what periods.

REMAND INSTRUCTIONS

On remand the hearing officer is to make findings of fact, conclusions of law and render a decision which are supported by the evidence determining whether the claimant had disability resulting from the compensable injury of (date of injury), and if so, for what periods.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is TRAVELERS INDEMNITY COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

d/b/a CSC-LAWYERS INCORPORATING SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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