On February 13, 1997, a contested case hearing (CCH) was held with the record closing on March 11, 1997. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issues at the CCH were: (1) whether the respondent (claimant) is entitled to supplemental income benefits (SIBS) for the fourth quarter; and (2) whether the appellant (carrier) timely contested the claimant’s “entitlement to [SIBS] for the for the fourth quarter.” The carrier requests review of the hearing officer’s decision that the claimant is entitled to SIBS for the fourth quarter and that the carrier failed to timely contest the claimant’s entitlement to SIBS for the fourth quarter. The carrier requests that we reverse the hearing officer’s decision on both issues and render a decision that the claimant is not entitled to SIBS for the fourth quarter. The claimant requests affirmance.
DECISION
Affirmed as to entitlement to SIBS, reversed and rendered as to failure to timely contest entitlement to SIBS.
Section 408.142(a) provides that an employee is entitled to SIBS if, on the expiration of the impairment income benefits (IIBS) period, the employee has an impairment rating (IR) of 15% or more; has not returned to work or has returned to work earning less than 80% of the employee’s average weekly wage as a direct result of the employee’s impairment; has not elected to commute a portion of the IIBS; and has attempted in good faith to obtain employment commensurate with the employee’s ability to work. Under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(b) (Rule 130.102(b)), entitlement to SIBS is determined prospectively for each potentially compensable quarter based on criteria met by the employee during the prior filing period. Rule 130.104(a) provides that an employee initially determined by the Texas Workers’ Compensation Commission (Commission) to be entitled to SIBS will continue to be entitled to SIBS for subsequent compensable quarters if the employee, during each filing period: (1) has been unemployed, or underemployed as defined by Rule 130.101, as a direct result of the impairment from the compensable injury; and (2) has made a good faith effort to obtain employment commensurate with the employee’s ability to work. The claimant has the burden to prove his or her entitlement to SIBS. Texas Workers’ Compensation Commission Appeal No. 941490, decided December 19, 1994.
The claimant claimed that she had no ability to work during the filing period for the fourth quarter. In Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994, the Appeals Panel stated that if an employee established that he or she had no ability to work at all during the filing period, then seeking employment in good faith commensurate with this inability to work “would be not to seek work at all.” In Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994, we held that the burden is on the claimant to prove that he or she had no ability to work due directly to the impairment that resulted from the injury. In Texas Workers’ Compensation Commission Appeal No. 960123, decided March 4, 1996, we stressed the need for medical evidence to affirmatively show an inability to work if that was being relied on by the claimant, and in Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994, we noted that an assertion of inability to work must be “judged against employment generally, not just the previous job where the injury occurred.” In Texas Workers’ Compensation Commission Appeal No. 961981, decided November 18, 1996, we stated that a claimant need not establish that his or her impairment is the only cause of his or her unemployment or underemployment to satisfy the direct result criterion for SIBS; rather, a claimant need only establish that his or her impairment is a cause of the unemployment or underemployment.
The parties stipulated that the claimant sustained a compensable injury on ______; that she reached maximum medical improvement (MMI) on March 24, 1994, with a 28% IR per the report of Dr. T, the designated doctor; that she did not commute any portion of her IIBS; and that the fourth quarter was from September 1, 1996, to November 30, 1996. The filing period for the fourth quarter was the 90-day period preceding September 1, 1996, which was from June 3, 1996, to August 31, 1996. The claimant worked for an airline’s catering service and she said her job was to fix fruit salads. She said that on ______, she fell at work and sustained a “hard blow” to her back. She said she worked in a light-duty capacity for the employer for a few months after the injury. As a result of her injury, the claimant had surgery performed on her neck in May 1993. The surgery was performed by Dr. S, whom the claimant treated with for several years, and consisted of a cervical discectomy and fusion at the C4-5 and C6-7 levels. Dr. S referred the claimant to Dr. ST for right shoulder complaints, and, as a result of her injury, the claimant had right rotator cuff surgery performed by Dr. ST in October 1993. Dr. ST noted in his post-operative reports that the claimant had problems with her neck and back, pain in her right shoulder, and pain in her arms. In March 1994 Dr. ST noted that the claimant had almost full range of movement in her right shoulder. The claimant said that she has not worked since her surgeries, and that she has not applied for any work since she last worked for the employer because she is “not able to.” She said that she cannot walk for more than a block without resting, that she cannot sit for more than half an hour, and that her right arm gives her trouble.
Dr. T, the designated doctor, certified in October 1994 that the claimant reached MMI on March 24, 1994, with a 28% IR. Impairment was assigned for the claimant’s neck and right shoulder. Dr. T noted that the claimant had been initially diagnosed in January 1993 as having a cervical strain, lumbar strain, right shoulder strain, and right rib contusion, and that the claimant continued to complain of back, neck, and right shoulder pain. He also noted that the claimant did not demonstrate abnormal pain behavior or symptom magnification during the September 1994 examination. Dr. T reexamined the claimant in February 1996 and again reported that the claimant has a 28% IR for impairment of the neck and right shoulder. He noted that during the reexamination the claimant demonstrated significant pain behavior and symptom magnification.
Dr. S wrote in May 1996 that the claimant continued to complain of pain in her low back, shoulder, and neck; that he did not believe that the claimant could return to her previous job in which she sometimes had to lift up to 50 pounds and bend to lift boxes; that the claimant had had a functional capacity evaluation performed at a medical center in April 1996; and that the opinion of the medical center was that the claimant “was able to do a sedentary type of work only, in which sedentary work is defined as being able to lift ten pounds or less infrequently.” Dr. S also noted that the claimant has difficulty standing or sitting for more than limited periods of time.
As previously noted, the filing period for the fourth quarter was from June 3, 1996, to August 31, 1996. The claimant testified that her attorney sent her to Dr. C, whom the claimant saw on August 5, 1996. The claimant described Dr. C as “my doctor.” Dr. C noted on August 5, 1996, that the claimant had severe pain in her back, severely restricted range of motion in her cervical spine, loss of function of her right arm with paresthesia and pain, and that she was barely able to move her right shoulder. Dr. C also wrote that he was going to request physical therapy for the claimant’s back and an MRI; that the claimant’s prognosis was guarded; and, in a work status report dated August 5, 1996, checked that the claimant was “to remain off work until next appointment,” which was set for August 20, 1996. On August 20, 1996, Dr. C wrote that the claimant’s “pain patterns” remained the same and that he was referring the claimant for x-rays of her cervical spine, lumbar spine, and shoulder, and for physical therapy for the “named anatomical areas including her back which has not been addressed.” He indicated that he would not know whether the claimant was at MMI (the parties stipulated MMI was reached on March 24, 1994), until he reviewed “prior surgeries” and “further evaluations as indicated,” and that the “anticipated dates” of the claimant’s return to limited or full-time duty would be “determined thereafter.” In a work status report dated August 20, 1996, Dr. C checked that the claimant was to “remain off work until next appointment,” which was set for September 3, 1996.
The hearing officer found that during the filing period for the fourth quarter the claimant “was unable to work, did not work as a direct result of her impairment from her ______, injury and was not released to return to work by her treating doctor, [Dr. C],” and further found that during the filing period for the fourth quarter the claimant “acted in good faith in not seeking to obtain employment since she had no ability to work.” The hearing officer concluded that the claimant is entitled to SIBS for the fourth quarter. The carrier contends that the claimant did not meet her burden of proving that she had no ability to work during the filing period for the fourth quarter and describes Dr. C’s work status slips as “conclusory.”
There was conflicting evidence regarding the claimant’s ability to work during the filing period for the fourth quarter. The hearing officer is the judge of the weight and credibility of the evidence. Section 410.165(a). The hearing officer resolves conflicts in the evidence. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. While Dr. C’s work status slips do not indicate the reasons for the claimant being off work, his narrative reports provide information as to the claimant’s medical condition and, among other things, describe the claimant’s loss of function in her right arm, severely restricted motion of her neck, and restricted motion of her right shoulder. Dr. C also noted the need for physical therapy and further evaluation. We cannot say that the hearing officer was compelled to find that Dr. C’s reports, which correspond to the dates of his work status slips, were not sufficient to show an inability to work. We conclude that sufficient evidence supports the hearing officer’s findings on the claimant’s inability to work during the filing period for the fourth quarter and that those findings are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
The other issue at the CCH was whether the carrier timely contested the claimant’s entitlement to SIBS for the fourth quarter. Section 408.147(b) provides that if a carrier fails to make a request for a benefit review conference (BRC) within 10 days after the date of the expiration of the IIBS period or within 10 days after receipt of the employee’s statement, the carrier waives the right to contest entitlement to SIBS and the amount of SIBS for that period. See also Rule 130.108(c). The issue of a timely contest of SIBS for the fourth quarter is essentially moot given our affirmance of the hearing officer’s decision that the claimant is entitled to fourth quarter SIBS based on the hearing officer’s finding of no ability to work during the filing period for that quarter. The hearing officer’s decision that the carrier did not timely contest entitlement to fourth quarter SIBS is based on Rule 102.4(b), which provides in part that, after the carrier or the Commission is notified in writing that a claimant is represented by an attorney or other representative, all copies of notices and reports to the claimant will be thereafter mailed to the representative and the claimant, unless the claimant requests delivery to the representative only.
Prior to August 1, 1996, the carrier used services to administer workers’ compensation claims of employees of the employer. Services knew that the claimant was represented by an attorney. On July 30, 1996, services sent the claimant a letter written in English informing the claimant that as of August 1, 1996, the administration of her claim would be transferred to corporation and that all future communications should be sent to corporation (corporation’s address and telephone number were given). On and after August 1, 1996, services no longer had written authorization from the carrier to administer the claimant’s workers’ compensation claim. Services letter to the claimant of July 30, 1996, was not sent to the claimant’s attorney. On and after August 1, 1996, corporation was authorized by the carrier to administer the claimant’s workers’ compensation claim. On August 22, 1996 (the fourth quarter began on September 1, 1996), the claimant’s attorney sent the claimant’s Statement of Employment Status (TWCC-52) for the fourth quarter to services and services received the TWCC-52 on that day. On October 17, 1996, the claimant’s attorney sent the claimant’s TWCC-52 for the fourth quarter to corporation and corporation received the TWCC-52 on that day. Corporation first received the claimant’s TWCC-52 for the fourth quarter on October 17, 1996. In response to the claimant’s TWCC-52 a claims representative for corporation filed a notice of nonentitlement and a request for setting a BRC, in which it contested SIBS entitlement on behalf of the carrier, with the Commission on October 21, 1996. October 21, 1996, was within 10 days of October 17, 1996. The claimant’s testimony was translated by a Spanish speaking interpreter; however, the claimant said she can speak some English. There was no evidence that the claimant requested that notices be delivered only to her attorney.
The carrier did not contest SIBS on the basis of a late filing of the TWCC-52 and states in the request for appeal that it felt that there was “good cause” for the late application, apparently based on its failure to notify the claimant’s attorney of the change in claims servicing companies. The hearing officer concluded that the carrier, through services, failed to comply with Rule 102.4 “to effectively notify the claimant, through her legal representative, of a change in the carrier’s representative for purposes of the handling and adjusting of her claim”; that service’s “notice and receipt” of the claimant’s TWCC-52 on August 22, 1996, “is imputed to the carrier since the carrier, through [services], failed to notify the claimant’s attorney of a change in the carrier’s representative”; and that the carrier “failed to timely contest the claimant’s entitlement to fourth quarter [SIBS] since it did not do so within ten days after [services] received the claimant’s application of August 22, 1996.”
It is undisputed that services was no longer authorized by the carrier to administer the claimant’s claim on August 22, 1996, when services received the TWCC-52 from the claimant’s attorney. It is also undisputed that written notice was sent to the claimant on July 30, 1996, that as of August 1, 1996, corporation would be administering her claim. There is no assertion that the claimant did not receive that notice or that that notice was not received by the claimant prior to August 22, 1996. The hearing officer’s decision means that services continued to be the carrier’s claims servicing company on August 22, 1996, when services received the TWCC-52, because of the carrier’s failure to notify the claimant’s attorney of the change in claims servicing companies, despite the fact that the claimant was given notice of the change. The carrier contends that services was not its representative on August 22, 1996. Under the particular facts of this case, where notice of the change in claims servicing companies was given to the claimant, we conclude that it was error for the hearing officer to hold that the carrier received the TWCC-52 on the date that services received it, August 22, 1996. We observe that in Texas Workers’ Compensation Commission Appeal No. 931011, decided December 10, 1993, a case concerning the 90-day dispute provision in Rule 130.5(e), the employee was notified of the IR but the employee’s attorney was not given notice of the IR and we stated that “evidence of communication to the party [of the IR] is necessary, but evidence of communication to a party’s counsel has not been required to start the running of the 90-day period [for disputing the IR],” and that “as in the violation of a rule in Appeal No. 92670, supra, the failure of the carrier to notify counsel per Rule 102.4 is subject to administrative penalty per Section 415.002(22) which provides for administrative penalty for a carrier when intentionally violating a rule of the Commission.” See also Texas Workers’ Compensation Commission Appeal No. 94322, decided May 2, 1994, and Texas Workers’ Compensation Commission Appeal No. 960540, decided May 1, 1996.
The hearing officer’s decision that the claimant is entitled to SIBS for the fourth quarter is affirmed. The hearing officer’s decision that the carrier failed to timely contest the claimant’s entitlement to SIBS for the fourth quarter is reversed and a new decision is rendered that the carrier timely contested the claimant’s entitlement to SIBS for the fourth quarter. The carrier is liable for fourth quarter SIBS.
Robert W. Potts – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Tommy W. Lueders – Appeals Judge