Disability is defined as an IW's inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the IW's pre-injury wage. Section 401.011(16). Before disability can be established, the IW must first prove he or she sustained a compensable injury. APD 023210.

The IW has the burden to prove that disability exists. The existence of disability depends upon whether the IW is earning less money at work as a result of the compensable injury. This means that the IW must show, by a preponderance of the evidence, that the compensable injury is a cause of his or her reduced wages. APD 032579.

There can be many causes for an IW to be unable to earn the pre-injury wage. The IW does not need to prove that the compensable injury is the sole cause of the reduced wages, the IW must only prove that the compensable injury is one of the causes. APD 032851.

After a compensable injury, an IW may have many different periods of disability. Whenever the IW is not working, or is working and earning less than the pre-injury wages because of the compensable injury, disability begins; then, disability will end when the IW begins to earn wages equal to or more than the IW's pre-injury wage. APD 032725.

Dates of Disability.

When there is a dispute regarding disability, the period in dispute begins the day after the date of the injury and continues through the date of the CCH unless the dates for the periods of disability are included in the statement of the issue. In their decisions, HOs will usually only state the period of disability and not state the periods of no disability. However, any period not stated to be a period of disability in the HO's decision beginning on the date of injury and continuing through the date of the contested case hearing is presumed to be a period of no disability. Once disability has been litigated through a CCH and an accrual date for income benefits established and finalized, that date cannot be changed through a subsequent CCH. The doctrine of res judicata prevents the relitigation of issues which have been resolved in prior suits. Barr v. Resolution Trust Corp., 837 S.W. 2d 627 (Tex. 1992).

At a CCH held on June 15, 2004, an issue was "Did the [ IW] have disability resulting from an injury sustained on August 20, 2002, and if so, for what periods?" No stipulations were made with regard to the period from August 20, 2002, to January 14, 2004. [At the June 15, 2004 CCH, the IW requested disability from January 14, 2004, through the date of the CCH.] The hearing officer's decision on June 17, 2004, concluded that the IW had disability from January 14, 2004, through the date of the CCH. The IC appealed the decision, asserting that the IW did not establish disability from January 14, 2004, through the CCH. The IC did not argue that there was prior disability from August 20, 2002, through January 14, 2004. The AP affirmed the HO's decision. In a subsequent CCH, the primary issue was "What is the date of maximum medical improvement (MMI) pursuant to Section 401.011(30)(B), the expiration of 104 weeks from the date on which income benefits began to accrue?" The IW argued that the issue was res judicata, the beginning date of disability having been established in the prior hearing. The IC claimed that res judicata did not apply, and that the IW had a compensable injury resulting in periods of disability beginning August 21, 2002. The HO determined that the IW had chosen not to litigate the entire period of disability in the prior CCH and that income benefits began to accrue on August 21, 2002, with statutory MMI occurring on August 16, 2004. The AP reversed and rendered a decision that the date that income benefits began to accrue was January 21, 2004, and the date of statutory MMI pursuant to Section 401.011(30)(B) would be January 19, 2006. APD 050120-s.

Evidence That Disability Exists.

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination regarding disability. For each of these fact circumstances there are cases where a HO reached the opposite result because the HO did not believe the evidence presented by one of the parties.

Restricted Duty Release/Removal From Work.

A doctor's report that an IW cannot work because of the compensable injury is evidence of disability. A doctor's report that restricts the IW's activities and prevents the IW from doing the job that he or she did at the time of the injury so that the IW is earning less money than the AWW is also evidence of disability. APD 030927. If an IW has been returned to work with restrictions, the IW does not have to prove that there is no work available which would fit his or her restrictions in order to establish disability. APD 941249. An IW under a restricted duty release does not have to look for work for purposes of establishing disability. APD 020417.

Standard of Review.

Whether an IW has disability is a question of fact for the HO to decide. Disability can be proven by the IW's CCH testimony alone. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref'd n.r.e.); APD 032940. However, the testimony of an IW, as an interested party, only raises issues of fact for the HO to resolve and is not binding on the HO. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.-Beaumont 1978, writ ref'd n.r.e.); APD 032579.

The HO is the sole judge of the weight and believability to be given to the evidence presented at the CCH. Section 410.165(a) . The HO is the trier of fact and resolves the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). For example, depending on the evidence presented, a HO may choose to disbelieve that an IW actually has the physical limitations requiring the restrictions placed upon him or her by any given doctor. APD 023176. This is equally true when a doctor asserts that the IW has no restrictions at all. APD 031749.

Medical Considerations.

Medical Care.

Evidence that an IW is still undergoing treatment for the compensable injury can support a claim for disability. APD 032661.

Medication.

The HO may consider past, present, and recommended future treatment in determining if disability exists and for what time period. The HO may consider the effects of any medications an IW is taking for the treatment of the compensable injury. APD 92299.

Pain.

A HO may consider the level of pain an IW is experiencing, and how that may affect the IW's ability to work. APD 001437.

Evidence that Disability Does Not Exist.

Abandonment of Medical Treatment.

[Cross-references: Abandonment of Medical (I18) (for Texas A&M employees, Section 502.067; for University of Texas employees, Section 503.067; for Department of Transportation employees, Section 505.057)].

Alien Status.

An IW's alien status is not a bar to receiving benefits under the 1989 Act. Commercial Standard Fire and Marine Company v. Galindo, 484 S.W.2d. 635 (Tex. Civ. App.-El Paso 1972, writ ref'd n.r.e.); APD 022258-s. However, if an IW returns to work, even at light duty, and is later terminated, laid off, or quits, and the evidence shows that the IW's medical condition has not changed, the IW may not establish disability if the sole reason other employment cannot be obtained is the IW's illegal alien status. APD 000529.

Full Duty Release.

If an IW is given a full duty release, the HO may consider that in reaching a determination regarding disability. APD 032215.

Incarceration.

Because disability is an economic concept, an IW cannot have disability for any period of time that the IW is incarcerated. This is so because the inability to earn the pre-injury wage is attributable to the incarceration, not the compensable injury. APD 023069.

Resignation.

When an IW returns to work under a restricted duty release and later resigns, disability ends if the HO determines that the IW is earning less than the AWW because of the resignation. APD 041917. An IW's voluntary resignation is a factor that the HO may consider, but resignation does not automatically preclude a finding of disability. APD 021818.

Reasonable Availability of Employment.

An IW under a restricted duty release is not required to look for work or prove that work is not available within the restrictions for purposes of establishing disability. However, even if the IW is under a doctor's restricted medical release to work, disability may end if the IW is able to obtain and retain employment at wages equivalent to the preinjury wage. APD 91045. Evidence to establish an end of disability must show that employment at preinjury wages, meeting the conditions of the medical release, is reasonably available to the IW and that the IW has not availed himself or herself of such employment opportunities. APD 020352. [Cross-reference: Existence/Duration/Disability Raised by Allegation of Bona Fide Offer (I02)].

Retirement.

An IW's voluntary retirement from his or her pre-injury employer is evidence that disability has ended. APD 021818. Retirement is a factor for the HO to consider in determining whether the IW has disability. The mere fact that an IW retires after the date of injury does not automatically preclude a finding of disability after the retirement date. If the IW can prove that the compensable injury is still a cause of the inability to earn pre-injury wages after retirement, disability exists. APD 022499.

Sole Cause.

Disability ends if the IC can prove that a non-compensable preexisting condition or intervening injury (or some other factor unrelated to the compensable injury) is the sole cause of the IW's inability to earn the pre-injury wage. APD 032713. Sole cause is an affirmative defense. APD 971727. Because sole cause is an affirmative defense, an IC that raises sole cause as a defense must specifically plead the issue and has the burden of proof. Texas Employers Insurance Association v. Page, 553 S.W.2d 98 (Tex. 1977); Texas Workers' Compensation Fund v. Mandlbauer, 988 S.W.2d 750 (Tex. 1999).

Termination.

When an IW returns to work under a restricted duty release after the injury and is later terminated, the question becomes whether it is the termination or the injury that causes the inability to obtain or retain preinjury wages. In such a case, an IW's termination may end disability. APD 032971. Termination for cause does not necessarily preclude disability, but may be considered by the HO in determining why an IW is unable to earn the preinjury wage. Thus, disability continues after termination if a cause of the inability to earn the preinjury wage after termination was the compensable injury. APD 032767.

Unemployment Benefits Application/Payment.

An IW's application for and receipt of unemployment benefits does not necessarily preclude a finding of disability. Aetna Casualty & Surety Co. v. Moore, 386 S.W.2d 639 (Tex. Civ. App.-Beaumont 1964, writ ref'd n.r.e.); APD 032289. Application for and receipt of unemployment benefits are factors which the HO can consider in reaching a disability determination. APD 032129.

Return to Work Guidelines.

ICs, health care providers, and employers shall use the disability duration values in the current edition of the MDA as guidelines for the evaluation of expected or average return to work time frames. Section 137.10(a) . The Division return to work guidelines provide disability duration expectancies, and are presumed to be a reasonable length of disability duration. Section 137.10(c) . However, the disability duration values in the guidelines are not absolute values and do not represent specific lengths or periods of time at which an IW must return to work; rather, the values represent points in time at which additional evaluation may take place if full medical recovery and return to work have not occurred. Section 137.10(e). Section 137.10 is effective on or after May 1, 2007. Section 137.10(g).

Disability Periods Prior to May 1, 2007.

In her original decision, the HO determined that (1) the IW reached MMI on November 21, 2003; (2) the IW's IR was 10%; (3) the first certification of MMI and assigned IR became final pursuant to Section 408.123; and (4) the IW had disability beginning June 11, 2002, and ending November 21, 2003. In APD 070139, the AP reversed the HO's determination that the IW's disability ended on November 21, 2003 (the date of MMI) as not being supported by the evidence and remanded the case for an ending date of disability that is supported by the evidence. On remand, the HO in her decision dated May 7, 2007, used the MDA in making her determination that the IW had disability beginning June 11, 2002, and ending November 12, 2003. The AP reversed and rendered a decision that the IW had disability beginning June 11, 2002, and ending on August 18, 2004. The AP noted that Section 137.10 was not in effect during any of the claimed period of disability, and held that the HO erred in applying the MDA because (1) the MDA was not in evidence; (2) no notice was given to the parties at either the original CCH or at the time of the decision after remand that the MDA would be considered; and (3) the entire period of disability at issue was prior to the May 1, 2007 effective date of Section 137.10. APD 071087-s.

Disability Period Beginning Prior to and Ending After May 1, 2007.

The HO determined that the IW sustained a compensable injury on (Date of Injury) and had disability from August 16, 2006 through October 16, 2006. The IW appealed, arguing that the HO used an arbitrary period of disability set forth in the current edition of the MDA rather than rely on the medical evidence. In her decision the HO referenced both the MDA and the ODG stating that the MDA and ODG indicate it is not appropriate to determine the IW had sustained the full extent of disability alleged. The HO also referenced that the "guidelines contemplate that an injured worker in a physically demanding job, such as claimant described, would be expected to be off work a maximum of approximately two months for a sprain/strain injury to the neck or back." The IW had previously been examined by a DD to determine (1) the extent of the compensable injury; (2) whether the IW's disability is a direct result of the work-related injury; and (3) the ability of the IW to return to work. The DD concluded that the IW's injury is directly caused by her on the job injury and that the IW is able to return to work in a light duty capacity with an FCE to consider what type of duties are appropriate. The AP reversed and remanded the case because the HO failed to make a finding that a preponderance of the evidence was contrary to the DD's report. The AP noted that although Section 137.10 provides the MDA shall be presumed to be a reasonable length of disability duration, the rule clarifies that the MDA provides disability duration expectancies and is not an absolute value and does not represent specific lengths or periods of time at which an IW must return to work. Regarding the HO's use of the MDA, the AP stated that although the beginning date of disability was prior to May 1, 2007, the effective date of the Division's adoption of the MDA, a portion of the claimed disability period extended beyond May 1, 2007, and therefore it was not error for the HO to consider the return to work guidelines in making her disability determination. On remand the HO was to inform the DD that the Division has adopted the MDA as its return to work guidelines, but that factors influencing disability durations as mitigating circumstances may be considered. The AP ruled that disability duration values in the MDA are tied to job classifications and that consideration of the MDA requires knowledge of the specific conditions that are part of the compensable injury in order to determine the duration values listed. Thus, the HO was to inform the DD of the IW's specific job classification (sedentary, light, medium, heavy, or very heavy) and to ask the DD to answer the extent of injury question with more specificity. APD 071108-s.