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 29, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent (claimant) had disability resulting from the compensable injury of (date of injury), from January 1, 2018, through the date of the CCH; and (2) the employer did not make a bona fide offer of employment (BFOE) to the claimant entitling the appellant (carrier) to adjust the post-injury weekly earnings. The carrier appealed the ALJ’s determinations of disability and BFOE. The claimant responded, urging affirmance of the disputed determinations.
DECISION
Affirmed in part and reversed and remanded in part.
The parties stipulated that the compensable injury of (date of injury), extends to a lumbar sprain. The claimant testified that she was injured while trying to lift a roll up door of a truck.
The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
BFOE
The ALJ’s determination that the employer did not make a BFOE to the claimant entitling the carrier to adjust the post-injury weekly earnings is supported by sufficient evidence and is affirmed.
DISABILITY
That portion of the ALJ’s disability determination that the claimant had disability resulting from the compensable injury of (date of injury), from January 1, 2018, through the date of the CCH is supported by sufficient evidence and is affirmed.
The Benefit Review Conference (BRC) Report was in evidence and listed the disability issue in dispute as follows: “Did the claimant have disability from December 15, 2017, through the present resulting from an injury sustained on (date of injury)?” The parties agreed at the CCH that this was the disputed disability issue.
Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. 28 TEX. ADMIN. CODE § 142.16 (Rule 142.16) provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due. However, the ALJ failed to make a finding of fact, conclusion of law, or decision of whether the claimant had disability from December 15 through December 31, 2017. Because the ALJ failed to make a determination on the entire disability period as properly before him to determine, the ALJ’s decision is reversed as being incomplete. See Appeals Panel Decision (APD) 150510, decided April 21, 2015. Accordingly, we reverse the ALJ’s decision as being incomplete and remand a portion of the disability issue to the ALJ to determine whether the claimant had disability from December 15 through December 31, 2017.
SUMMARY
We affirm the ALJ’s determination that the employer did not make a BFOE to the claimant entitling the carrier to adjust the post-injury weekly earnings.
We affirm that portion of the ALJ’s disability determination that the claimant had disability resulting from the compensable injury of (date of injury), from January 1, 2018, through the date of the CCH.
We reverse the ALJ’s disability determination as being incomplete and remand to the ALJ to determine whether the claimant had disability from December 15 through December 31, 2017.
REMAND INSTRUCTIONS
On remand the ALJ is to make findings of fact, conclusions of law, and a determination as to whether the claimant had disability from December 15 through December 31, 2017.
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 ALJ, 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 APD 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is NEW HAMPSHIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
Margaret L. Turner – Appeals Judge
CONCUR:
Veronica L. Ruberto – Appeals Judge
Carisa Space-Beam – Appeals Judge