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, 2024, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the appellant (claimant) did not have disability resulting from the compensable injury from May 22, 2023, through July 4, 2023, or from October 9, 2023, through November 10, 2023. The claimant appealed the ALJ’s determination and argued that the ALJ made an error in analyzing the claimant’s wages during the first period of disability in dispute. The respondent (carrier) responded, urging affirmance of the appealed determination.
DECISION
Affirmed in part and reversed and remanded in part.
The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury that extends to a cervical sprain/strain, thoracic sprain/strain, lumbar sprain/strain, right shoulder sprain/strain, right wrist sprain/strain, and a right hip sprain/strain; the claimant did not have disability from (date of injury), through May 21, 2023, or from November 11, 2023, through the date of the CCH; and the claimant’s average weekly wage (AWW) is at least $3,415.35. The claimant, a customer service engineer, was injured after being involved in a motor vehicle accident.
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).
Regarding the second period of disability, October 9, 2023, through November 10, 2023, the ALJ based her determination on the opinion of (Dr. D), the designated doctor. The ALJ stated that Dr. D’s opinion that the claimant could return to full duty work on October 9, 2023, is persuasive. Therefore, the ALJ’s determination that the claimant did not have disability from the compensable injury from October 9, 2023, through November 10, 2023, is supported by sufficient evidence and is affirmed.
The ALJ also determined that the claimant did not have disability from May 22, 2023, through July 4, 2023. The ALJ stated in the discussion portion of her decision that “[t]he claimant’s pay records noted that for each week from May 22, 2023, through July 2, 2023, the claimant earned more than his [AWW].” However, the pay records in evidence indicate that for the two-week period of May 22, 2023, through June 4, 2023, the claimant earned $4,703.54, which would result in $2,351.77 for each of those weeks. For the period of June 5, 2023, through June 18, 2023, the claimant earned $5,264.23, which results in $2,632.12 for each of those weeks. For the period of June 19, 2023, through July 2, 2023, the claimant earned $4,288.33, which results in $2,144.17 for each of those weeks.
The ALJ’s statement that the pay records noted that the claimant earned more than his AWW for each week from May 22, 2023, through July 2, 2023, is a material error in the statement of the evidence. While the ALJ can accept or reject in whole or in part the pay records in the record, the ALJ’s decision in this case is based, in part, on a material error in her statement of the evidence in the record. Accordingly, we reverse the ALJ’s determination that the claimant did not have disability from the compensable injury from May 22, 2023, through July 2, 2023, and we remand the issue of whether the claimant had disability from May 22, 2023, through July 2, 2023, to the ALJ for further action consistent with this decision.
Regarding the period of July 3, 2023, through July 4, 2023, the ALJ states in her decision that the evidence does not establish that the compensable injury was a cause of the claimant’s inability to earn his pre-injury wage. The ALJ’s determination that the claimant did not have disability from the compensable injury from July 3, 2023, through July 4, 2023, is supported by sufficient evidence and is affirmed.
SUMMARY
We affirm the ALJ’s determinations that the claimant did not have disability from July 3, 2023, through July 4, 2023, or from October 9, 2023, through November 10, 2023, resulting from the compensable injury of (date of injury).
We reverse the ALJ’s determination that the claimant did not have disability from May 22, 2023, through July 2, 2023, and we remand the issue of whether the claimant had disability from May 22, 2023, through July 2, 2023, resulting from the compensable injury of (date of injury), to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand, the ALJ is to correct the material error in her statement regarding the claimant’s pay records. The ALJ shall consider all the evidence and make a determination regarding whether the claimant had disability from May 22, 2023, through July 2, 2023, resulting from the compensable injury of (date of injury).
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 Appeals Panel Decision 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is THE STANDARD FIRE INSURANCE 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.
Cristina Beceiro – Appeals Judge
CONCUR:
Carisa Space-Beam – Appeals Judge
Margaret L. Turner – Appeals Judge