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SIBs/Initial (First) Quarter (I31) and SIBs Subsequent Quarters (I32 - I39)

In some cases an IE will be entitled to SIBs upon the expiration of IIBs. SIBs accrue on the latter of (1) the first day of the applicable quarter, or (2) the date the DWC-52 is received by the IC subject to Section 130.105. Section 130.104(f). SIBs are calculated quarterly and paid monthly in the amount calculated under Section 130.102(g). Sections 408.144; 130.102(g). An IE who has met the following requirements upon the expiration of IIBs is entitled to SIBs:

  1. an IR of 15% or more;
  2. has demonstrated an active effort to obtain employment in accordance with Section 408.1415;
  3. has not elected to commute a portion of the IIBs under Section 408.128;
  4. has not returned to work or has returned to work earning less than 80% of the IE's AWW as a direct result of the IE's impairment;
  5. has completed and filed a DWC-52; and
  6. has not permanently lost entitlement to SIBs.

Sections 408.142; 130.102.

Determination of SIBs entitlement shall be made in accordance with the rules in effect on the date a qualifying period begins. APD 100296. This segment discusses the Act and Rules in effect as of July 1, 2009.

Good Faith.

Please note that the good faith requirement in previous Section 130.102(b)(2) only applied to those cases in which the qualifying period begins prior to July 1, 2009. As this segment focuses on the Act and Rules effective July 1, 2009, any cases cited within this section that refer to good faith are not cited to discuss that concept but to illustrate the proposition of the heading the case falls under.

Direct Result.

Among the requirements for SIBs entitlement is that the IE has earned less than 80% of his or her AWW as a direct result of the impairment from the compensable injury. Section 408.142; 130.102. An IE need not establish that the impairment is the only cause of the IE’s unemployment or underemployment during the qualifying period, but, rather, only that the impairment is a cause. The AP has held that the direct result requirement is sufficiently supported by evidence that an IE sustained a serious injury with lasting effects and could not reasonably perform the type of work being done at the time of the injury. APD 040603

Additionally, the AP noted in APD 982993:

When [an IE] has work restrictions imposed after a compensable injury, this, in effect, will narrow the field regarding the number and types of jobs available to that claimant. [An IE] who was injured at a sedentary job should not have a more difficult time proving direct result than [an IE] who sustained an injury while doing a heavy job. [Under these facts], the focus should not be solely on what type of job the [IE] had before or on whether the [IE] is physically able to perform that old job. Instead, one must consider (1) why was the [IE] unemployed [or underemployed] during the [qualifying] period and (2) did the impairment affect or impact the [IE’s] unemployment or underemployment situation.

Active Effort to Obtain Employment in Accordance with Section 408.1415.

To be eligible for SIBs an IE must provide evidence satisfactory to the Division of the following:

  1. active participation in a VRP conducted by DARS or a private vocational rehabilitation provider;
  2. active participation in work search efforts conducted through the TWC; or
  3. active work search efforts documented by job applications submitted by the recipient.

Section 408.1415.

Work Search Requirements.

An IE demonstrates an active effort to obtain employment by meeting at least one or any combination of the following during each week of the entire qualifying period:

  1. has returned to work in a position which is commensurate with the IE's ability to work;
  2. has actively participated in a VRP as defined in Section 130.101;
  3. has actively participated in work search efforts conducted through TWC;
  4. has performed active work search efforts documented by job applications; or
  5. has been unable to perform any type of work in any capacity. In this case the IE must provide a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and there must not be any other records showing that the IE is able to return to work.

Section 130.102(d)(1); APD 100429-s.

Note: Effective September 1, 2016, DARS was dissolved and its vocational rehabilitation services were transferred to TWC.

If the IE has not met at least one of the above-listed requirements in any week during his or her qualifying period, the IE is not entitled to SIBs unless the IE can demonstrate that he or she had reasonable grounds for failing to comply with the work search requirements. Section 130.102(d)(2).

Combining Any One or More of the Work Search Requirements in Section 130.102(d)(1)(A)-(E).

The IE argued entitlement to SIBs based on (1) returning to work in a position which is commensurate with her ability to work; (2) active participation in a VRP as defined in Section 130.101; and (3) performing active work search efforts documented by job applications every week of the qualifying period in dispute. The ALJ found the IE demonstrated an active effort to obtain employment each week during the entire qualifying period by (1) returning to work in a position commensurate with her ability to work; (2) by performing active work search efforts documented by job applications; and (3) by actively participating in a VRP as defined by Section 130.101. The AP noted that Section 130.102(d)(1) provides that an IE may combine the work search requirements listed in (d)(1)(A)-(E) of that section for each week of the qualifying period, and examined each theory of entitlement argued by the IE to determine whether the IE met the work search requirements for each week of the qualifying period. APD 100429-s.

Participation in a VRP.

Not Actively Participating in a VRP.

The IE argued entitlement to SIBs based on active participation in a VRP as defined in Section 130.101, among other theories. The ALJ found the IE demonstrated an active effort to obtain employment each week during the entire qualifying period by actively participating in a VRP as defined by Section 130.101, among other things. The AP found the evidence did not establish the IE complied with Section 130.102(d)(1)(B), active participation in a VRP, because her DARS letter did not indicate that she was making a reasonable effort to fulfill her obligations in accordance with the terms of a vocational rehabilitation plan or IPE; there was no vocational rehabilitation plan or IPE in evidence; and no other evidence the IE was actively participating in a VRP during the qualifying period in dispute. Because the AP held the evidence did not establish that the IE met any of the work search requirements in week 12 of the qualifying period, the AP reversed the ALJ's determination that the IE is entitled to SIBs for the disputed quarter. APD 100429-s.

The IE argued entitlement to SIBs based on active participation in a VRP. The employment goal in the IE's IPE was identified as a social service worker, and the IE's responsibilities in achieving this goal included, among other things, that the IE maintain 12 credit hours each semester. The IPE encompassed the entire qualifying period in question. During the qualifying period the IE was taking 12 credit hours; however, one of the classes ended three days after the start of the qualifying period. Although the IE listed job searches in excess of the minimum job search requirements in some of the weeks during the qualifying period, the IE failed to document any job searches for week 12 of the qualifying period. The ALJ found that the IE made a reasonable effort to fulfill her obligations in accordance with the terms of her IPE for the disputed quarter and therefore determined the IE was entitled to SIBs for the disputed quarter. The AP reversed the ALJ's determination and rendered a new decision that the IE was not entitled to SIBs for the disputed quarter. No other evidence was offered that the IE performed any other activity in connection with her IPE in week 12, and no evidence of any other active efforts during week 12 to meet the work search requirements of Section 130.102(d)(1) was offered. Section 130.102(d)(2) provides that an IE who has failed to meet at least one of the work search requirements in any week of the qualifying period is not entitled to SIBs unless the IE can demonstrate reasonable grounds for failing to comply with the work search requirements. The AP noted that although the ALJ did not make a specific written finding on reasonable grounds, the ALJ discussed the issue on the record and stated that in his opinion the IE did not present evidence of reasonable grounds for failing to search for work in week 12 if it is determined the IE had to perform an activity in week 12 since she was not attending classes or performing any other activity under the provisions of the IPE. There was sufficient evidence to support the ALJ's stated finding of no reasonable grounds for the IE's failure to comply with the work search requirements in week 12 of the qualifying period. APD 100615-s.

Return to Work in a Position Commensurate with the IE's Ability to Work.

IE Did Not Return to Work in a Position Commensurate with the IE's Ability to Work During Each Week of the Qualifying Period.

The IE argued entitlement to SIBs based on returning to work in a position which is commensurate with her ability to work, among other theories. The ALJ found the IE demonstrated an active effort to obtain employment each week during the entire qualifying period by returning to work in a position commensurate with her ability to work, among other things. The AP found the evidence supported the ALJ's finding that the IE complied with Section 130.102(d)(1)(A), return to work in a position commensurate with her ability to work, during the 3rd, 7th, and 10th weeks of the qualifying period. However, because the AP held the evidence did not establish that the IE met any of the work search requirements in week 12 of the qualifying period, the AP reversed the ALJ's determination that the IE is entitled to SIBs for the disputed quarter. APD 100429-s.

Total Inability to Work.

The ALJ determined that the IE failed to establish that he was entitled to SIBs based on the theory of total inability to work. The IE submitted letters from two different doctors to serve as narrative reports to explain how the compensable injury caused a total inability to work; however, the ALJ stated that the IE failed to provide a single narrative report which explained how the injury caused a total inability to work during the qualifying period. The AP noted, citing APD 170210, among other cases, that it has held that reports from different doctors cannot be read together to create a narrative report, but that the report must come from one doctor. It went on to cite APD 002724 for the proposition that the following will be considered in determining whether the requirements under Rule 130.102(d)(1)(E) for a doctor’s narrative report are met: amendments; supplements, including CCH testimony from the doctor; information incorporated in the report by reference; or information from a doctor’s medical records in evidence that can be reasonably incorporated by inference based on some connection between the report and the information in the medical records, will be considered. Rule 130.102(d)(1)(E) does not require a single narrative report to establish a total inability to work. The AP held that the ALJ applied the incorrect standard in requiring a single narrative report and reversed the ALJ’s determination. APD 172482.

IE Did Not Have a Total Inability to Work.

The IE argued entitlement to SIBs based on a total inability work. The ALJ found that the IE provided a narrative report from a doctor specifically explaining how the injury caused a total inability to work during the qualifying period in question, and that no other records show that the IE was able to return to work during the qualifying period. The AP noted the report relied upon by the IE stated "[a]t the time of this letter, [the IE] only qualifies for sedentary work therefore re-training thru [DARS] is recommended." The AP found this report does not constitute a narrative report that explains how the compensable injury caused a total inability to work in any capacity given that the doctor opined that the IE can work sedentary duty, and therefore the report did not constitute a narrative that specifically explains how the injury causes a total inability to work pursuant to Section 130.102(d)(1)(E). There were no other records in evidence constituting the narrative report under Section 130.102(d)(1)(E). The AP reversed the ALJ's determination and held the IE is not entitled to SIBs for the disputed quarter. APD 100267.

Work Search Efforts.

An IE shall provide documentation sufficient to establish that the IE has, during each week of the qualifying period, made the minimum number of job applications and/or work search contacts consistent with the work search contacts established by the TWC required for unemployment compensation in the IE's county of residence pursuant to the TWC Local Workforce Development Board requirements. If the IE's required number of contacts changes during a qualifying period the lesser number of contacts is required for that period. If the IE resides outside of Texas the minimum number of required contacts will be the number required by the public employment service in accordance with applicable unemployment compensation laws for the IE's place of residence. Section 130.102(f). The IC is required to accurately complete the blanks on the DWC-52 which provide the number of the applicable quarter, the dates of the qualifying period, the dates of the quarter, the number of required job searches per week of the qualifying period, and the deadline for filing the application with the IC before providing that form to the IE. Section 130.104(b).

IE Did Meet Work Search Efforts Requirement.

The IE's DWC-52 listed that the IE made five work searches for each week of the qualifying period in dispute, totaling 65 work searches, and attached was a detailed job search listing showing each employer's name and telephone number. Out of these 65 work searches the IE made about 4 to 5 job applications with potential employers. The IE conducted his search for employment through newspaper and in-store employment listings. The ALJ noted in the background information section of her decision that the IE's search for work was limited to talking with 65 potential employers, five each week, and leaving an application for work with only 5 employers. The ALJ found the IE failed to demonstrate an active effort to obtain employment during the qualifying period for the disputed quarter. The AP noted that although Section 130.102(d)(1)(D) provides an IE has performed active work search efforts documented by job applications, Section 130.102(f) provides in part that an IE shall provide documentation sufficient to establish that the IE has, each week during the qualifying period, made the minimum number of job applications and/or work search contacts consistent with the work search contacts established by the TWC. The AP further noted the preamble to Section 130.102 discusses subsection (f) of that rule to clarify that work search efforts would be consistent with job applications or the work search contacts established by the TWC, and that work search efforts encompasses both job applications and work search contacts as described by the TWC rules. The AP reversed the ALJ and held the IE met the work search efforts requirement by making job applications and work search contacts for each week during the entire qualifying period in dispute. APD 100229-s.

IE Moved to Another State During the Qualifying Period in Dispute.

The IE's county of residence on the first day of the qualifying period in dispute was in Texas; however, during the qualifying period the IE moved to Missouri. Both the IE's Texas and Missouri counties of residence required three minimum work searches per week. The IE's DWC-52 for the claimed SIBs quarter listed that the IE made a minimum of three work searches each week for the qualifying period in dispute, and attached to the DWC-52 was a detailed job search list that showed the employer's name and contact information for each of the work searches. The ALJ found that the IE did not submit any job applications to document an active job search during each week of the qualifying period in dispute. The AP noted that APD 100229-s cited the preamble to Section 130.102(d)(1)(D), which clarifies that "work search efforts" encompasses both job applications and work search contacts as described by TWC rules, and that the DWC-52 for the SIBs quarter in question reflected that the IE met the work search efforts requirement by making at least three job applications and work search contacts for each week during the entire qualifying period in dispute. The preamble for Section 130.102 also provides that the IE will be required to make job contacts based on the lesser of the number required on the first day of the qualifying period or the newly established number, and if the number of work search contacts provided on the SIBs application differs from the actual number of work search contacts required on the first day of the qualifying period, the lesser number of work search contacts will apply. The AP reversed the ALJ's determination that the IE is not entitled to SIBs for the disputed quarter and rendered a new decision that the IE is entitled to SIBs for the disputed quarter. APD 100467-s.

IC provided inaccurate information on the DWC-52.

The ALJ determined that the IE was not entitled to fourth and fifth quarter SIBs because the IE failed to make the minimum required work searches during the qualifying periods. The AP noted that neither the fourth nor fifth quarter DWC-52s in evidence provided the minimum number of work search efforts required by Rule 130.102(d)(1) and (f). The IE testified that the IC never told her that she needed to apply for five jobs in each week of the qualifying period rather than three. The IE was paid SIBs for the second and third quarters even though she only conducted three job searches per week rather than the five required for her county of residence. The AP cited APD 010617-s for the proposition that as a prerequisite for advancing the argument that the IE failed to document a weekly job search in accordance with Rule 130.102(e), the IC is first required to comply with its obligation to accurately provide the information required in Rule 130.104(b) on the DWC-52. The AP held that as neither the fourth nor fifth quarter SIBs applications reflected that the requisite number of job searches was provided by the IC as required by Rule 130.104(b), the ALJ’s determination of non-entitlement was reversed. APD 140039.

The ALJ determined that the IE was not entitled to sixth quarter SIBs because the IE failed to make the minimum required work searches during the qualifying period. The evidence reflected that the IE performed six job searches per week during the qualifying period. The parties stipulated that the number of weekly work search efforts for the county the IE resides in changed from five to seven before the beginning of the qualifying period and that the IE was not informed of the change by the IC until a month into the qualifying period. The AP also noted that Rule 130.102(f) provides, in part, that if the required minimum number of work search contacts changes during a qualifying period, the lesser number of work search contacts shall be the required minimum number of contacts for that period. The rules do not contemplate having two different numbers of minimum weekly work search contacts during the same qualifying period. As the IC failed to inform the IE of the accurate number of required work searches prior to the beginning of the qualifying period, the AP reversed the ALJ’s determination that the IE was not entitled to sixth quarter SIBs. APD 172459.

IE Did Not Meet Work Search Efforts Requirement.

The IE argued entitlement to SIBs based on performing active work search efforts documented by job applications every week of the qualifying period in dispute, among other theories. The minimum number of work searches for the IE's county of residence was 3 per week. The IE's DWC-52 listed that the IE made a minimum of 3 work searches for the 1st through the 11th and the 13th weeks of the qualifying period. However, for the 12th week the IE documented only 2 work searches. Attached to the DWC-52 was a detailed job search listing that documented each of the IW's searches, although there was no documentation for a third work search in week 12. The AP stated that the IE did not provide documentation sufficient to establish she had during each week of the qualifying period made the minimum number of job applications and or work search contacts consistent with the work search contacts established by TWC which are required for unemployment compensation in the IE's county of residence. There was no evidence the minimum number of work searches during the qualifying period changed from the required minimum of three. The AP held that portion of the ALJ's finding that the IE demonstrated an active effort to obtain employment each week during the qualifying period by performing active work search efforts documented by job applications is against the great weight and preponderance of the evidence. Because the AP found the evidence did not establish that the IE met any of the work search requirements in week 12 of the qualifying period, the AP reversed the ALJ's determination that the IE was entitled to SIBs and rendered a new decision that the IE was not entitled to SIBs for the disputed quarter. APD 100429-s.

Commutation of IIBs.

Although an IW may elect to commute the remainder of his or her IIBs (dependent upon the IW returning to work for at least three months and earning at least 80% of his or her AWW), an IW who elects to do this is not entitled to any additional benefits for the compensable injury. Section 408.128; APD 042062.

Determination of Entitlement or Non-entitlement.

First Quarter.

The Division will make the determination of entitlement or non-entitlement for an eligible IW's first quarter of SIBs. Section 130.103. If the Division determines that the IW is entitled to SIBs for the first quarter, the Division will send a notice of determination to the IW which includes all of the information listed in Section 130.103(b). If the Division determines that the IW is not entitled to SIBs for the first quarter, the Division will send a notice to the IW which includes all of the information listed in Section 130.103(c).

Subsequent Quarters.

After the Division has made the determination of entitlement or non-entitlement for SIBs for the first quarter, the IC shall make determinations for subsequent quarters consistent with the provisions contained in Section 130.102. The IC shall issue a determination of entitlement or non-entitlement within 10 days after receipt of the DWC-52. Section 130.104.

IC's Duty to Send DWC-52 to IW.

Under Section 130.104(b), the IC is required to send the IW a DWC-52 for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW a DWC-52 arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. APD 050280.

Direct Result.

An IW has earned less than 80% of his or her AWW as a direct result of the impairment from the compensable injury if the impairment from the compensable injury is a cause of the reduced earnings. Section 130.102(c). A finding of direct result is sufficiently supported by evidence that the IW sustained a serious injury with lasting effects and that the IW could not reasonably perform the type of work that he or she was doing at the time of the injury. Determination of direct result is normally a question for fact for the HO to resolve. APD 061132.

However, if an IW is not entitled to SIBs at the time of payment of final IIBs because the IW is earning at least 80% of his or her AWW, the IW may become entitled to SIBs at any time within one year after the date the IIBs period ends if:

  1. the IW earns wages for at least 90 days and the wages are less than 80% of the IW's AWW;
  2. the IW has an IR of 15% or greater, has not elected to commute a portion of the IIBs benefit under Section 408.128; and has demonstrated an active effort to obtain employment in accordance with Section 408.1415; and
  3. the decrease in the IW's earnings is a direct result of the IW's impairment from the compensable injury.

Section 408.142

Filing the DWC-52.

Section 130.101(1) describes the form and information required for an application for SIBs, form DWC-52. Section 130.104(c) describes the manner in which an IW is to file a DWC-52. The IW shall file the DWC-52 no later than seven days before and no earlier than 20 days before the beginning of the quarter for which the IW is applying for SIBs. The IC is to return any DWC-52 received more than 20 days before the beginning of the quarter. Section 130.104.

Untimely Filing DWC-52.

An IW who fails to timely file a DWC-52 with the IC shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the IC, unless one of the following applies:

  1. the IC failed to timely mail the form to the IW as provided by Section 130.104;
  2. the Division failed to issue a determination of entitlement or non-entitlement for the first quarter and the quarter applied for immediately follows the first quarter; or
  3. a finding of an IR of 15% or greater in an administrative or judicial proceeding when the previous IR was less than 15%.

Section 130.105.

IW Failed to Timely File DWC-52. On November 13, 2003, the Division sent the IW a notice of nonentitlement for the first quarter of SIBs. The IW testified at the CCH that the IC did not send him any application for SIBs. The IW filed his DWC-52 for the second, third, and fourth quarters of SIBs on September 9, 2004. The HO found that the IC failed to mail the IW an application for SIBs prior to September 9, 2004, and determined that the IC was not relieved of liability due to the IW's failure to timely file a DWC-52 because the IC failed to provide copies of the DWC-52 in accordance with Division rules. The AP reversed the HO, noting that under Section 130.104(b), the IC is required to send the IW an application for SIBs for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW an application for SIBs arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. Because the Division determined the IW was not entitled to SIBs for the first quarter, the IW had to apply for a subsequent quarter of SIBs in order for the IC to be required to send an application to the IW under Section 130.104(b). The AP further noted that the exceptions under Section 130.105(a) do not apply to the facts of this case. The AP therefore reversed the HO and determined that the IC was relieved of liability for the payment of SIBs for the second and third quarter, and for that portion of the fourth quarter between July 10, 2004, and September 9, 2004. APD 050280.

IC Contesting IW's Entitlement or Amount of SIBs.

First Quarter.

An IC wishing to dispute a Division finding of entitlement to or amount of SIBs for the first quarter shall request a BRC within 10 days after receiving the Division determination of entitlement. An IC waives the right to contest the Division determination of entitlement to or amount of SIBs for the first quarter if the request is not received by the Division within 10 days after the date the IC received the determination. Section 130.108(b).

Subsequent Quarter with Prior Payment.

If an IC disputes entitlement to a subsequent quarter and the IC has paid SIBs during the quarter immediately preceding the quarter for which the DWC-52 is filed, the IC shall dispute entitlement to the subsequent quarter by requesting a BRC within 10 days after receiving the DWC-52. An IC waives the right to contest the entitlement to SIBs for the subsequent quarter if the request is not received by the Division within 10 days after the date the IC received the DWC-52. The IC does not waive the right to contest entitlement to SIBs if the IC has returned the IW's DWC-52 pursuant to Section 130.104(c).

Subsequent Quarter without Prior Payment.

If an IC disputes entitlement to a subsequent quarter and the IC did not pay SIBs during the quarter immediately preceding the quarter for which the application is filed, the IC shall send the determination to the injured employee within 10 days of the date the form was filed with the IC and include the reasons for the IC's finding of non-entitlement and instructions about the procedures for contesting the IC's determination as provided by Section 130.108(a). Section 130.108(d).

IC Liability.

An IC who unsuccessfully contests a Division determination of entitlement to SIBs is liable for:

  1. All accrued, unpaid SIBs, and interest on that amount, and;
  2. Reasonable and necessary attorney's fees incurred by the IW as a result of the IC's dispute which have been ordered by the Division or court.

Section 130.108(e).

Immediately Preceding Quarter is Actively Under Dispute.

Where entitlement to the immediately prior quarter of SIBs is actively under dispute and ongoing at the time the IC receives the IW's DWC-52 for the subsequent quarter, the IC must timely request a BRC if it wishes to dispute the subsequent quarter; failure to do so results in IC waiver as provided in Section 408.147(b). APD 032868-s (please note this case refers to a previous version of Section 130.108).

Immediately Preceding Quarter is Not Actively Under Dispute.

Where an IW's determination of nonentitlement to the immediately prior quarter of SIBs is not actively under dispute or ongoing at the time the IC receives the IW's DWC-52 for the subsequent quarter, the IC is not required to request a BRC. APD 051130-s (please note this case refers to a previous version of Section 130.108).

End of Document
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