Allegation of Bona Fide Offer Archives

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 January 14, 2021, and February 11, 2021, with the record closing on February 22, 2021, 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 employer did tender bona fide offers of employment (BFOE) to the appellant (claimant) on June 10, 2020, June 24, 2020, July 15, 2020, and August 14, 2020; thus, the respondent (carrier) is entitled to adjust the post-injury weekly earnings beginning on June 19, 2020, and continuing through the date of the CCH; (2) the claimant did not have disability on June 11, 2020, and June 12, 2020, resulting from the compensable injury sustained on (date of injury); and (3) the claimant had disability beginning on June 13, 2020, and continuing through the date of the CCH, resulting from the compensable injury sustained on (date of injury). The claimant appealed, disputing the ALJ’s determination of BFOE. The carrier responded, urging affirmance of the disputed issue.

The ALJ’s determinations that the claimant did not have disability on June 11, 2020, and June 12, 2020, resulting from the compensable injury sustained on (date of injury); and that the claimant had disability beginning on June 13, 2020, and continuing through the date of the CCH, resulting from the compensable injury sustained on (date of injury) were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

The claimant, a packer, was injured on (date of injury), when her left hand was caught in a machine. The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and the carrier accepted an amputation to the left middle finger and a fracture to the left index finger as the compensable injury.

The ALJ is the sole judge of the weight and credibility to 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 [14thDist.] 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

As mentioned above, the ALJ determined that the employer did make BFOEs to the claimant in this case. In the Discussion section of the decision, the ALJ stated that “[t]he offers of employment were made in accordance with [28 TEX. ADMIN. CODE § 129.6(c) Rule] 129.6(c).” This is supported by sufficient evidence. However, the ALJ mistakenly refers to the date of one of the BFOEs as June 24, 2020, instead of June 25, 2020. Accordingly, we reform all references of a June 24, 2020, BFOE to a June 25, 2020, BFOE, including in Finding of Fact No. 3, Finding of Fact No. 4, Conclusion of Law No. 3, the Decision section, and the Decision and Order section, to conform to the evidence.

SUMMARY

We affirm as reformed Finding of Fact No. 3 that the claimant was offered a modified duty position as a plant security worker on June 10, 2020, June 25, 2020, July 15, 2020, and August 14, 2020.

We affirm as reformed Finding of Fact No. 4 that the offers of employment dated June 10, 2020, June 25, 2020, July 15, 2020, and August 14, 2020, comply with the requirements of Rule 129.6.

We affirm as reformed Conclusion of Law No. 3 that the employer did tender BFOEs to the claimant on June 10, 2020, June 25, 2020, July 15, 2020, and August 14, 2020; thus, the carrier is entitled to adjust the post-injury weekly earnings beginning on June 19, 2020, and continuing through the date of the CCH.

We affirm as reformed that portion of the decision that the employer did tender BFOEs to the claimant on June 10, 2020, June 25, 2020, July 15, 2020, and August 14, 2020; thus, the carrier is entitled to adjust the post-injury weekly earnings beginning on June 19, 2020, and continuing through the date of the CCH.

The true corporate name of the insurance carrier is OLD REPUBLIC 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.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 December 21, 2020, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that: the employer did not make a bona fide offer of employment (BFOE) to the respondent (claimant) entitling the appellant (carrier) to adjust the post-injury weekly earnings. The carrier appeals the ALJ’s determination that the employer did not make a BFOE. The appeal file does not contain a response from the claimant.

DECISION

Affirmed as reformed.

The parties stipulated that the claimant sustained a compensable injury on (date of injury), that includes at least a right shoulder contusion, low back contusion, and thoracic sprain. The claimant testified she was injured when she was hit by a student.

28 TEX. ADMIN. CODE § 129.6 (Rule 129.6) provides in part:

(c) An employer’s offer of modified duty shall be made to the employee in writing and in the form and manner prescribed by the [Texas Department of Insurance, Division of Workers’ Compensation]. A copy of the Work Status Report [DWC-73] on which the offer is being based shall be included with the offer as well as the following information:

(1) the location at which the employee will be working;
(2) the schedule the employee will be working;
(3) the wages that the employee will be paid;
(4) a description of the physical and time requirements that the position will entail; and
(5) a statement that the employer will only assign tasks consistent with the employee’s physical abilities, knowledge, and skills and will provide training if necessary.

The executive director for the employer testified at the CCH that she delivered the offer of employment dated September 22, 2020, to the claimant. The executive director specifically identified in the exhibits the pages she gave to the claimant as part of the offer of employment. None of the pages identified included the DWC-73. In her discussion of the evidence, the ALJ noted that the more persuasive evidence supported that no DWC-73 was included in the offer of employment. In Finding of Fact No. 3, the ALJ found that the written offer of employment dated September 22, 2020, did not comply with the requirements of Rule 129.6(d). The ALJ inadvertently cited Rule 129.6(d) rather than Rule 129.6(c). As stated above, Rule 129.6(c) requires a copy of the DWC-73 on which the offer is based to be included with the offer. The Appeals Panel has held that the language in Rule 129.6 is “clear and unambiguous” and the rule “contains no exception for failing to strictly comply with its requirements.” See Appeals Panel Decision (APD) 010301, decided March 20, 2001; APD 011604, decided August 14, 2001; and APD 011878-s, decided September 28, 2001. We reform Finding of Fact No. 3 to include the correct rule citation as follows: The written offer of employment dated September 22, 2020, did not comply with the requirements of Rule 129.6(c). The ALJ’s determination that the employer did not make a BFOE entitling the carrier to adjust the post-injury weekly earnings is supported by sufficient evidence and is affirmed as reformed.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RICHARD J. GERGASKO, PRESIDENT
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:
Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

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 September 28, 2020, and December 7, 2020, 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 compensable injury of (date of injury), extends to abdominal wall contusion, right knee grade I-II anterior cruciate ligament (ACL) strain, right hand sprain, right wrist sprain, left hand sprain, left wrist sprain, and right knee grade 2 ACL sprain; (2) the compensable injury of (date of injury), does not extend to headaches, left knee sprain/strain, chondromalacia in patella of right knee, stage II chondromalacia in remainder of right knee, right knee meniscal tear of the posterior horn, right knee ACL tear apart from right knee ACL sprain/strain, right knee joint effusion, right hand/wrist tenosynovitis, right metacarpal phalangeal (MCP) joint effusion, bone edema within distal phalanges of 4th and 5th digits of the right hand, bone edema within the distal phalanges of the 2nd and 5th digits of the left hand, or left hand flexor tenosynovitis; (3) the employer did not tender a bona fide offer of employment (BFOE) to the appellant (claimant); (4) the claimant had disability as a result of the compensable injury sustained on (date of injury), from July 22, 2019, through November 12, 2019, but not otherwise through the date of the hearing on December 7, 2020; and (5) the claimant’s average weekly wage (AWW) is $502.56.

The claimant appealed, disputing the ALJ’s determinations regarding extent of injury and disability. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations. The ALJ’s determinations that the employer did not tender a BFOE to the claimant and the claimant’s (AWW) is $502.56 were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed, in part, and reversed and remanded, in part.

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 [14thDist.] 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).

The parties stipulated that the claimant sustained a compensable injury on (date of injury), and that the compensable injury extends to bilateral knee contusions, right knee sprain/strain, bilateral hand contusions, left hand grade 1 sprain of the ulnar collateral ligament at the 5th MCP joint, and right knee grade 2 ACL sprain, and that (Dr. A) was appointed as designated doctor by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine extent of injury, maximum medical improvement, impairment rating, and disability. The claimant, a production worker, was injured on (date of injury), when she slipped and fell forward onto her hands, knees, and abdomen.

EXTENT OF INJURY

That portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), extends to abdominal wall contusion, right knee grade I-II ACL strain, right hand sprain, right wrist sprain, left hand sprain, left wrist sprain, and right knee grade 2 ACL sprain, but does not extend to headaches, left knee sprain/strain, chondromalacia in patella of right knee, stage II chondromalacia in remainder of right knee, right knee ACL tear apart from right knee ACL sprain/strain, right knee joint effusion, right hand/wrist tenosynovitis, right MCP joint effusion, bone edema within distal phalanges of 4th and 5th digits of the right hand, bone edema within the distal phalanges of the 2nd and 5th digits of the left hand, or left hand flexor tenosynovitis is supported by sufficient evidence and is affirmed.

The extent-of-injury issue contained in the Benefit Review Conference Report lists the following condition at issue: right knee meniscal tear of the posterior horn. At the CCH dated September 28, 2020, the ALJ suggested amending that condition to read, “right knee lateral meniscal tear of the posterior horn.” Both parties agreed to the suggested amendment. In the CCH dated December 7, 2020, the ALJ again read the condition at issue on the record as amended.

In the ALJ’s decision and order, the ALJ failed to note the condition as amended in the extent-of-injury issue. Additionally, in Finding of Fact No. 4, Conclusion of Law No. 4, the Decision section, and the Decision and Order section, the ALJ notes the condition as “right knee meniscal tear of the posterior horn” instead of “right knee lateral meniscal tear of the posterior horn” as amended by the parties. As the ALJ failed to make a determination regarding the condition as amended, the ALJ’s determination is incomplete. We therefore reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right knee meniscal tear of the posterior horn, and remand the issue of whether the compensable of (date of injury), extends to a right knee lateral meniscal tear of the posterior horn to the ALJ for further action consistent with this decision.

DISABILITY

Because we have reversed and remanded a portion of the extent-of-injury determination, we also reverse the ALJ’s determination that the claimant had disability as a result of the compensable injury sustained on (date of injury), from July 22, 2019, through November 12, 2019, but not otherwise through the date of the hearing on December 7, 2020, and remand the disability issue to the ALJ for further action consistent with this decision.

SUMMARY

We affirm that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), extends to abdominal wall contusion, right knee grade I-II ACL strain, right hand sprain, right wrist sprain, left hand sprain, left wrist sprain, and right knee grade 2 ACL sprain, but does not extend to headaches, left knee sprain/strain, chondromalacia in patella of right knee, stage II chondromalacia in remainder of right knee, right knee ACL tear apart from right knee ACL sprain/strain, right knee joint effusion, right hand/wrist tenosynovitis, right MCP joint effusion, bone edema within distal phalanges of 4th and 5th digits of the right hand, bone edema within the distal phalanges of the 2nd and 5th digits of the left hand, or left hand flexor tenosynovitis.

We reverse that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to a right knee meniscal tear of the posterior horn, and we remand the issue of whether the compensable injury of (date of injury), extends to a right knee lateral meniscal tear of the posterior horn for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant had disability as a result of the compensable injury sustained on (date of injury), from July 22, 2019, through November 12, 2019, but not otherwise through the date of the hearing on December 7, 2020, and remand the disability issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to amend the extent-of-injury condition as agreed to by the parties and make a determination regarding whether the compensable injury of (date of injury), extends to a right knee lateral meniscal tear of the posterior horn. The ALJ is then to make a determination regarding whether the claimant had disability from July 22, 2019, through the CCH on December 7, 2020, as a result of 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 Division, 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 ZURICH AMERICAN 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.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 September 23, 2020, 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 employer did not make a bona fide offer of employment (BFOE) to the appellant/cross-respondent (claimant), and therefore, the respondent/cross-appellant (carrier) is not entitled to adjust the post-injury earnings; (2) the average weekly wage (AWW) from September 16 through December 1, 2019, is $1,168.17; (3) the AWW from December 2, 2019, through the date of the CCH is $1,216.38; (4) the claimant has disability as a result of the compensable injury from May 22, 2020, through the date of the CCH.

The claimant appealed the ALJ’s determination of AWW, contending that the ALJ erred in failing to include nonpecuniary wages in the form of housing and utilities in the AWW calculation. The carrier responded, urging affirmance. The carrier cross-appealed the ALJ’s determinations regarding BFOE and disability. The claimant responded, urging affirmance of the ALJ’s BFOE and disability determinations.

DECISION

Affirmed in part, and reversed and remanded, in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and that as of December 2, 2019, the adjustment for health insurance premiums for the AWW is $48.21 per week. The evidence indicated that the claimant was injured when he tripped and fell while walking back to his truck while working.

BFOE

The ALJ’s determination that the employer did not make a BFOE to the claimant, and therefore, the carrier is not entitled to adjust the post-injury earnings is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant has disability as a result of the compensable injury from May 22, 2020, through the date of the CCH, is supported by sufficient evidence and is affirmed.

AWW

Section 408.041(a) provides that a full-time employee’s AWW shall be determined by dividing the wages from the 13 weeks preceding the compensable injury by 13. See also 28 TEX. ADMIN. CODE § 128.3(d) (Rule 128.3(d)).

Section 401.011(43) provides that “wages” includes all forms of remuneration payable for a given period to an employee for personal services, and that the term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee’s remuneration. Rule 126.1(2) states, in part, that nonpecuniary wages are wages paid to an employee in a form other than money. Examples of nonpecuniary wages include rent. Rule 128.1(b) provides, in part, that an employee’s wage, for the purpose of calculating the AWW, shall include: (1) all pecuniary wages paid by the employer to the employee; and (2) all nonpecuniary wages paid by the employer to the employee prior to the compensable injury but not continued by the employer after the injury.

The claimant began working for the employer in May 2019, and worked throughout the 13-week period prior to the (date of injury), compensable injury. Therefore, the ALJ calculated the claimant’s AWW by dividing the wages from the 13 weeks preceding the compensable injury by 13 as provided for in Section 408.041(a). The ALJ also added the cost of discontinued health care premiums in the amount of $48.21 per week for the period of December 2, 2019, through the date of the CCH, as stipulated by the parties. The claimant argued that in addition to the health insurance premiums, the nonpecuniary wages of his housing and utilities should be included in the calculation of the AWW.

The claimant leased an apartment in (city), Texas, beginning on August 1, 2018. The employer acquired the apartment building where he was living in January of 2019, before the claimant was hired. When the claimant was hired in May of 2019, the employer allowed the claimant to continue living in his apartment rent-free. The employer additionally took over all the claimant’s utility payments. However, at the end of July of 2019, the associate counsel for the employer’s holding company informed the claimant that his family members could not continue to live in the apartment with him as it was strictly for employees. At that time, the claimant elected to move due to the fact that he had custody of his minor child. The ALJ stated in her discussion that since the employer stopped paying the claimant’s rent and utilities before the date of the (date of injury), compensable injury and the claimant chose to move out, the AWW does not include the cost of rent and utilities. We disagree. The evidence indicates that the claimant lived rent-free during at least a portion of the 13-week period that was used to calculate his AWW and provided evidence that the value of the apartment was $825.00 per month. The Appeals Panel has previously held that the market value of an apartment may be included in calculating the AWW. See Appeals Panel Decision (APD) 042364-s, decided November 17, 2004, and APD 130022, decided March 18, 2013.

In addition to receiving the value of the apartment, the employer paid the claimant’s utilities in full during a portion of the 13-week period used to calculate the claimant’s AWW. As stated above, Section 401.011(43) provides that “wages” includes all forms of remuneration payable for a given period to an employee for personal services, and that the term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee’s remuneration. We hold that the ALJ erred in failing to consider the value of the apartment and utilities that the claimant received during a portion of the 13-week period in calculating the claimant’s AWW. Therefore, the ALJ’s determinations that the AWW from September 16 through December 1, 2019, is $1,168.17 and the AWW from December 2, 2019, through the date of the CCH is $1,216.38 are reversed. As the ALJ did not make a finding regarding the value and amount of nonpecuniary wages that the claimant received during the 13-week period and the amount is in dispute, we remand the issue of AWW back to the ALJ to determine the claimant’s AWW from September 16 through December 1, 2019, and from December 2, 2019, through the date of the CCH in accordance with this decision.

SUMMARY

We affirm the ALJ’s determination that the employer did not make a BFOE to the claimant, and therefore, the carrier is not entitled to adjust the post-injury earnings.

We affirm the ALJ’s determination that the claimant has disability as a result of the compensable injury from May 22, 2020, through the date of the CCH.

We reverse the ALJ’s determinations that the AWW from September 16 through December 1, 2019, is $1,168.17 and the AWW from December 2, 2019, through the date of the CCH is $1,216.38, and we remand the issue of AWW back to the ALJ to determine the claimant’s AWW from September 16 through December 1, 2019, and from December 2, 2019, through the date of the CCH in accordance with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ should consider the evidence regarding any rent and utilities that the claimant received during any part of the 13-week period used to calculate the AWW. The ALJ is to make specific findings on the value of the nonpecuniary wages that the claimant received and on which weeks during the 13-week period he received them that are supported by the evidence and consistent with this decision. The ALJ should then make a determination regarding the claimant’s complete AWW for the periods of September 16 through December 1, 2019, and from December 2, 2019, through the date of the CCH that is supported by the evidence and consistent with this decision.

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 7THSTREET, SUITE 620
AUSTIN, TEXAS 78701.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 30, 2018, with the record closing on August 6, 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 compensable injury of (date of injury), does not extend to right knee lateral meniscus tear, right knee small tears of the posterior horn of the medial meniscus, or abnormality of gait and mobility; (2) the employer did not tender a bona fide offer of employment (BFOE) to the appellant/cross-respondent (claimant); (3) the claimant had disability resulting from the compensable injury of (date of injury), beginning on April 1, 2017, and continuing through May 20, 2017; and (4) the claimant did not have disability beginning on May 21, 2017, through November 19, 2017, or from January 5, 2018, through July 30, 2018.

The claimant appealed the ALJ’s extent-of-injury determination as well as that portion of the ALJ’s disability determination that was decided against her, arguing that the ALJ’s disputed determinations were against the great weight and preponderance of the evidence. The respondent/cross-appellant (carrier) responded, urging affirmance of the determinations appealed by the claimant. The carrier cross-appealed, disputing the ALJ’s determination that the employer did not tender a BFOE to the claimant. The carrier also notes that the ALJ’s decision portion of the decision and order is inconsistent with the Finding of Fact and Conclusion of Law regarding the disability period beginning on April 1, 2017, and continuing through May 20, 2017. The appeal file does not contain a response to the carrier’s appeal.

DECISION

Affirmed as reformed.

The claimant, who worked in housekeeping for the employer, testified that she injured her knee when it twisted while she was walking sideways to get from between the bed and the wall and her foot got caught on the post of the bed. At issue was the extent of the compensable injury, disability, and whether the employer tendered a BFOE to the claimant.

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).

STIPULATIONS

The parties stipulated that on (date of injury), the employer provided workers’ compensation insurance with Zenith Insurance Company. However, in Finding of Fact No. 1.C. the ALJ mistakenly stated that the parties stipulated that on (date of injury), the employer provided workers’ compensation insurance with Travelers Indemnity Company, carrier. We reform Finding of Fact No. 1.C. to state that on (date of injury), the employer provided workers’ compensation insurance with Zenith Insurance Company to conform to the evidence.

The ALJ stated in Finding of Fact 1.D. that on (date of injury), the claimant sustained a compensable injury in the form of a right knee sprain/strain. A review of the record reflects that the parties actually stipulated that on (date of injury), the claimant sustained a compensable injury in the form of a right knee sprain. We reform Finding of Fact No. 1.D. to state that on (date of injury), the claimant sustained a compensable injury in the form of a right knee sprain to conform to the evidence.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to right knee lateral meniscus tear, right knee small tears of the posterior horn of the medial meniscus, or abnormality of gait and mobility is supported by sufficient evidence and is affirmed.

BFOE

The ALJ’s determination that the employer did not tender a BFOE to the claimant is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ found in Finding of Fact No. 6 that the claimant was unable to earn her pre-injury wages as a result of the compensable injury beginning on April 1, 2017, and continuing through May 20, 2017. The ALJ’s finding is supported by sufficient evidence. Additionally, in Conclusion of Law No. 5 the ALJ determined that the claimant did have disability resulting from the compensable injury of (date of injury), beginning on April 1, 2017, and continuing through May 20, 2017. However, in the decision portion of the decision and order the ALJ mistakenly determined that the claimant did not have disability resulting from the compensable injury of (date of injury), beginning on April 1, 2017, and continuing through May 20, 2017. Accordingly, we reform the decision portion of the decision and order to conform to Finding of Fact No. 6 and Conclusion of Law No. 5, to state that the claimant had disability resulting from the compensable injury of (date of injury), beginning on April 1, 2017, and continuing through May 20, 2017. We note that the ALJ determined in the opening paragraph of her decision and order that the claimant had disability beginning on April 1, 2017, and continuing through May 20, 2017.

The ALJ’s determination that the claimant did not have disability resulting from the compensable injury of (date of injury), beginning on May 21, 2017, through November 19, 2017, or beginning on January 5, 2018, through July 30, 2018, is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to right knee lateral meniscus tear, right knee small tears of the posterior horn of the medial meniscus, or abnormality of gait and mobility.

We affirm the ALJ’s determination that the employer did not tender a BFOE to the claimant.

We reform Finding of Fact No. 1.C. to state that on (date of injury), the employer provided workers’ compensation insurance with Zenith Insurance Company.

We reform Finding of Fact No. 1.D. to state that on (date of injury), the claimant sustained a compensable injury in the form of a right knee sprain.

We affirm as reformed the ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), beginning on April 1, 2017, and continuing through May 20, 2017.

We affirm the ALJ’s determination that the claimant did not have disability resulting from the compensable injury of (date of injury), beginning on May 21, 2017, through November 19, 2017, or beginning on January 5, 2018, through July 30, 2018.

The true corporate name of the insurance carrier is ZENITH INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

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 9, 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 sustained on (date of injury), from August 23, 2017, and continuing through October 20, 2017; (2) the employer made a bona fide offer of employment (BFOE) to the claimant for the period from August 14, 2017, through August 22, 2017, and the appellant (carrier) is entitled to adjust the post-injury weekly earnings for this period; and (3) the employer did not make a BFOE to the claimant for the period from August 23, 2017, through October 20, 2017, and the carrier is not entitled to adjust the post-injury weekly earnings for this period. The carrier appeals Finding of Fact No. 1.B.

DECISION

Reversed and remanded.

The parties stipulated that the claimant sustained a compensable injury on (date of injury), and that the employer provided workers’ compensation insurance through the carrier. The carrier appealed, noting that the parties mistakenly entered into an incorrect stipulation at the CCH regarding the claimant’s employer. The carrier states that the parties stipulated that on (date of injury), the claimant was the employee of (employer 1), but that the claimant’s correct employer on (date of injury), was (employer 2). The carrier noted that both (employer 1) and (employer 2) were insured for workers’ compensation insurance by American Zurich Insurance Company on the date of injury. Attached to the carrier’s appeal was an Agreed Motion to Reform Stipulation noting the mistaken stipulation regarding the employer which was signed by the attorney for the carrier as well as the attorney for the claimant. We note that (employer 1) additionally sent correspondence to the Texas Department of Insurance, Division of Workers’ Compensation (Division) which was in the appeal file and stated, in part, that the claimant was not an employee of (employer 1).

We note that Division records reflect that (employer 1) was given notice of the benefit review conference as well as the CCH. There is no evidence that (employer 2) was given notice of the proceedings.

In Houston Gen. Ins. Co. v. Association Cas. Ins. Co., 977 S.W.2d 634 (Tex. App.-Tyler 1998, no pet.), the Tyler Court of Appeals held that workers’ compensation coverage may not be extended by waiver or estoppel. This case is similar to Appeals Panel Decision (APD) 042725, decided December 15, 2004, where information was sent to the Division after the CCH, advising that the carrier did not have coverage. See also APD 132905, decided February 18, 2014, and APD 070514, decided May 1, 2007. Because of the uncertainty as to the identity of the proper employer and carrier in this case, we remand the case to the ALJ to determine the proper employer and carrier, and, if it is a different employer and/or carrier other than the employer and carrier listed on the ALJ’s decision, the ALJ is to hold another hearing with proper notice to the proper employer and carrier. The parties are to be allowed an opportunity to present evidence as to the correct employer and carrier as well as the issues in this proceeding.

The true corporate name of the insurance carrier is AMERICAN ZURICH 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.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

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 February 22, 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 employer tendered a bona fide offer of employment (BFOE) to the appellant (claimant); and (2) the claimant did not have disability from December 6, 2016, through December 22, 2017, resulting from an injury sustained on (date of injury). The claimant appealed, disputing the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part, reformed in part, and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and that the carrier has accepted a cervical strain, thoracic strain/contusion, and L4-5 disc protrusion/herniation as the compensable injury. The claimant testified he was injured when he fell from a ladder.

Finding of Fact No. 1.F. states that the parties stipulated that the statutory date of maximum medical improvement (MMI) is December 23, 2017. However, the claimant did not agree to make a stipulation regarding the statutory date of MMI. Accordingly, we reform the decision by striking Finding of Fact No. 1.F. in its entirety to conform to the stipulations made by the parties at the CCH.

BFOE

28 TEX. ADMIN. CODE § 129.6(c) (Rule 129.6(c)) provides, in part, that a copy of the Work Status Report (DWC-73) on which the offer is being based shall be included with the offer. In a letter dated November 22, 2016, the employer made an offer of employment to the claimant based on a DWC-73 dated November 10, 2016, from (Dr. D), the treating doctor. The letter noted that Dr. D’s DWC-73 was attached to the offer. The signature block in all copies of Dr. D’s DWC-73 in evidence are blank. Rule 129.5(c) requires, in part, that the DWC-73 be signed. See Appeals Panel Decision (APD) 042765, decided December 8, 2004. The unsigned DWC-73 does not comply with Rule 129.5(c) and therefore cannot be relied upon for purposes of Rule 129.6. Accordingly, we reverse the ALJ’s determination that the employer tendered a BFOE to the claimant, and we render a new decision that the employer did not tender a BFOE to the claimant.

DISABILITY

The Appeals Panel has stated on numerous occasions that the issues of BFOE and disability are distinct. APD 001143, decided July 3, 2000. Section 401.011(16) defines “disability” as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the pre-injury wage;” a BFOE is used to determine the amount of temporary income benefits due, if any. When disability and BFOE are both specifically raised as disputed issues, if it is determined that there has not been a valid BFOE tendered, the job offer may still be considered by the fact finder in determining whether the injured employee has disability. See APD 020352, decided April 3, 2002; and APD 042385, decided November 19, 2004. The ALJ’s determination that the claimant did not have disability from December 6, 2016, through December 22, 2017, resulting from an injury sustained on (date of injury), is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the ALJ’s determination that the claimant did not have disability from December 6, 2016, through December 22, 2017, resulting from an injury sustained on (date of injury).

We reform the ALJ’s decision by striking Finding of Fact No. 1.F. in its entirety to conform to the stipulations made by the parties at the CCH.

We reverse the ALJ’s determination that the employer tendered a BFOE to the claimant, and we render a new decision that the employer did not tender a BFOE to the claimant.

The true corporate name of the insurance carrier is TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA 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.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

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 April 4, 2017, and concluded on December 18, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues in Docket No. HW-16-146010-03-CC-HD49 (Docket No. 1) by deciding that: (1) the employer made a bona fide offer of employment (BFOE) to the appellant (claimant) entitling the respondent (carrier) to adjust the post-injury weekly earnings from August 9, 2016, through the date of the CCH; and (2) the claimant did not have disability from August 9, 2016, and continuing through the date of the CCH resulting from an injury sustained on (date of injury). The ALJ resolved the disputed issues in Docket No. HW-16-146010-04-CC-HD49 (Docket No. 2) by deciding that: (1) the compensable injury of (date of injury), does not extend to a right rotator cuff tear; (2) the claimant reached maximum medical improvement (MMI) on February 3, 2016; and (3) the claimant’s impairment rating (IR) is five percent.

The claimant appealed, disputing all of the ALJ’s determinations. The claimant pointed out in her appeal that the ALJ failed to include a finding of fact regarding the extent-of-injury issue, and that the ALJ did not correctly explain her mechanism of injury in the decision. The carrier responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury that includes bilateral shoulder contusion, left hip contusion, and cervical sprain/strain, and the date of statutory MMI is November 8, 2017. The claimant testified she was injured when the tractor on which she was driving rolled over after she clipped a culvert to avoid an oncoming car. The claimant also testified that the tractor did not roll over her. We note that the ALJ stated in her discussion that the tractor tipped to the left side while the claimant was driving on a graded slope.

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 a 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.

The ALJ states in Conclusion of Law No. 3, the summary on page one, and the Decision portion of the decision and order that the compensable injury of (date of injury), does not extend to a right rotator cuff tear. However, the ALJ made no findings of fact whether the compensable injury extends to a right rotator cuff tear. Because the ALJ’s decision contains no findings of fact regarding the extent-of-injury issue, which was an issue properly before the ALJ to resolve, it does not comply with Section 410.168 and Rule 142.16. We therefore reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right rotator cuff tear as being incomplete, and we remand the issue of whether the compensable injury of (date of injury), extends to a right rotator cuff tear. See Appeals Panel Decision (APD) 132339, decided December 12, 2013.

The issues of MMI, IR, BFOE, and disability are all dependent upon the resolution of the extent-of-injury issue. Because we have reversed the ALJ’s extent-of-injury determination and remanded that issue to the ALJ, we also reverse the ALJ’s determinations that the claimant reached MMI on February 3, 2016, that the claimant’s IR is five percent, that the employer tendered a BFOE to the claimant entitling the carrier to adjust the post-injury weekly earnings from August 9, 2016, through the date of the CCH, and that the claimant had no disability resulting from the compensable injury of (date of injury), beginning on August 9, 2016, and continuing through the date of the CCH, and we remand all of these issues to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right rotator cuff tear as being incomplete, and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant reached MMI on February 3, 2016, and we remand the issue of the claimant’s date of MMI to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant’s IR is five percent, and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the employer tendered a BFOE to the claimant entitling the carrier to adjust the post-injury weekly earnings from August 9, 2016, through the date of the CCH, and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant had no disability resulting from the compensable injury of (date of injury), beginning on August 9, 2016, and continuing through the date of the CCH, and remand this issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact and corresponding conclusions of law and a decision regarding whether the compensable injury of (date of injury), extends to a right rotator cuff tear. The ALJ is then to make findings of fact, conclusions of law, and a decision on whether the employer made a BFOE to the claimant entitling the carrier to adjust the post-injury weekly earnings, and if so for what period; whether the claimant had disability from August 9, 2016, to the date of the CCH as a result from the injury sustained on (date of injury); the claimant’s date of MMI, which cannot be after November 8, 2017, the stipulated date of statutory MMI; and the claimant’s IR.

(Dr. H) is the most recently appointed designated doctor in this case. On remand the ALJ is to determine whether Dr. H is still qualified and available to be the designated doctor. If Dr. H is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s MMI and IR for the (date of injury), compensable injury, if necessary.

The certification of MMI cannot be after November 8, 2017, the stipulated date of statutory MMI. The certification of MMI should be the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated considering the physical examination and the claimant’s medical records. The assignment of an IR is required to be based on the claimant’s condition as of the MMI date considering the medical records and the certifying examination and according to the rating criteria of the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides) and the provisions of Rule 130.1(c)(3).

The parties are to be provided with any new MMI/IR certification from the designated doctor and are to be allowed an opportunity to respond.

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.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

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 September 27, 2017, 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) is entitled to $7,037.55 in partial temporary income benefits (TIBs) from October 29, 2016, through June 16, 2017; (2) the claimant is entitled to full TIBs from June 17, 2017, through the date of the CCH; and (3) the employer did not make a bona fide offer of employment (BFOE) on May 18, 2017, to the claimant entitling the appellant (carrier) to adjust the post-injury weekly earnings from June 17, 2017, through the date of the CCH.

The carrier appealed the ALJ’s determinations. The carrier argues on appeal that the ALJ’s determinations are manifestly unjust and against the great weight of the evidence. The claimant responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the claimant is entitled to partial TIBs from October 29, 2016, through June 16, 2017; the claimant’s average weekly wage (AWW) is $495.18; and the claimant had disability from October 29, 2016, through the date of the CCH. The claimant testified she was injured when she slipped and fell at work.

TIBs FROM OCTOBER 29, 2016, THROUGH JUNE 16, 2017

It is undisputed that the employer made offers of employment to the claimant after the date of injury for light duty and that the claimant accepted those offers. It is also undisputed that the claimant worked for the employer in a light duty status after the date of injury and was terminated on June 16, 2017. It is further undisputed that the claimant requested the employer to reduce her hours so that her income would not impact her receipt of Social Security disability benefits for a condition unrelated to the compensable injury.

Section 408.103(a) provides, in part, that subject to Sections 408.061 and 408.062 (the maximum and minimum TIBs rates), the amount of a temporary income benefit is equal to 70% of the amount computed by subtracting the employee’s weekly earnings after the injury from the employee’s AWW, or for the first 26 weeks 75% of the amount computed by subtracting the employee’s weekly earnings after the injury from the employee’s AWW if the employee earns less than $10 an hour. 28 TEX. ADMIN. CODE § 129.3(d) (Rule 129.3(d)) provides that the carrier shall calculate the employee’s lost wages by subtracting post-injury earnings from the AWW. Rule 129.4(a) provides that the insurance carrier shall adjust the weekly amount of TIBs paid to the injured employee as necessary to match the fluctuations in the employee’s weekly earnings after the injury.

In evidence is a calculation sheet offered by the claimant to establish the partial amount of TIBs for the disputed period. This calculation sheet estimates that the claimant is entitled to partial TIBs in the amount of $7,037.55. The claimant based this estimate on the following formula: AWW subtracted by the claimant’s post-injury earnings multiplied by 75% for the first 26 weeks, and AWW subtracted by the claimant’s post-injury earnings multiplied by 70% for the remaining weeks. The claimant based the value for post-injury earnings for each week on the number of hours she worked. The ALJ determined that the claimant is entitled to partial TIBs in the amount of $7,037.55 from October 29, 2016, through June 16, 2017.

The carrier argues that the value for post-injury earnings for each week as calculated by the claimant is incorrect because it does not consider that the claimant’s hours were reduced, in part, based on her own request to lower her hours so that her income would not impact her receipt of Social Security disability benefits for a condition unrelated to the compensable injury. The carrier contends that the correct amount for post-injury earnings for each week should be the amount of offered wages, which was $360 per week, rather than the wages earned for the number of hours she worked each week.

The claimant testified at the CCH that she did in fact request the employer to reduce the number of hours she worked each week so that her Social Security disability benefits would not be affected. As previously noted, the claimant’s Social Security disability benefits were for a condition unrelated to the compensable injury. The claimant also testified she missed time during the period at issue because of issues with her car, among other things. There was evidence presented that the claimant’s time missed was for causes not related to the compensable injury. See Appeals Panel Decision (APD) 091807, decided January 29, 2010. The ALJ made no findings of fact on the evidence presented regarding the claimant’s earnings based on reduced hours for reasons unrelated to the compensable injury, which impacts the amount of partial TIBs to which the claimant is entitled. Accordingly, we reverse the ALJ’s determination that the claimant is entitled to $7,037.55 in partial TIBs from October 29, 2016, through June 16, 2017, and we remand this issue to the ALJ for further action consistent with this decision.

BFOE AND TIBs FROM JUNE 17, 2017, THROUGH THE DATE OF THE CCH

The ALJ determined that the employer did not make a BFOE on May 18, 2017, to the claimant entitling the carrier to adjust the post-injury weekly earnings from June 17, 2017, through the date of the CCH, and that the claimant is entitled to full TIBs from June 17, 2017, through the date of the CCH. The ALJ noted that in evidence is a letter dated May 18, 2017, in which the employer offered the claimant a light duty position. Regarding that offer the ALJ stated the following:

Although the offer outlined the job activities and time requirements that the position would entail, the offer did not persuasively describe how she could perform those activities within her work restrictions.

Section 408.103(e) provides, in part, that if an employee is offered a BFOE that the employee is reasonably capable of performing, given the physical condition of the employee and the geographic accessibility of the position to the employee, the employee’s weekly earnings after the injury are equal to the weekly wage for the position offered to the employee. Section 408.144(c) provides, in part, that if an employee is offered a BFOE that the employee is capable of performing, given the physical condition of the employee and the geographic accessibility of the position to the employee, the employee’s weekly wages are considered to be equal to the weekly wages for the position offered to the employee.

Rule 129.6 provides:

(a) An employer or insurance carrier may request the treating doctor provide a Work Status Report [DWC-73] by providing the treating doctor a set of functional job descriptions which list modified duty positions which the employer has available for the injured employee to work. The functional job descriptions must include descriptions of the physical and time requirements of the positions.

(b) An employer may offer an employee a modified duty position which has restricted duties which are within the employee’s work abilities as determined by the employee’s treating doctor. In the absence of a [DWC-73] by the treating doctor an offer of employment may be made based on another doctor’s assessment of the employee’s work status provided that the doctor made the assessment based on an actual physical examination of the employee performed by that doctor and provided that the treating doctor has not indicated disagreement with the restrictions identified by the other doctor.

(c) An employer's offer of modified duty shall be made to the employee in writing and in the form and manner prescribed by the [Texas Department of Insurance, Division of Workers’ Compensation (Division)]. A copy of the [DWC-73] on which the offer is being based shall be included with the offer as well as the following information:

(1) the location at which the employee will be working;

(2) the schedule the employee will be working;

(3) the wages that the employee will be paid;

(4) a description of the physical and time requirements that the position will entail; and

(5) a statement that the employer will only assign tasks consistent with the employee's physical abilities, knowledge, and skills and will provide training if necessary.

(d) A carrier may deem an offer of modified duty to be a [BFOE] if:

(1) it has written copies of the [DWC-73] and the offer; and

(2) the offer:

(A) is for a job at a location which is geographically accessible as provided in subsection (e) of this section;

(B) is consistent with the doctor’s certification of the employee’s work abilities, as provided in subsection (f) of this section; and

(C) was communicated to the employee in writing, in the form and manner prescribed by the [Division] and included all the information required by subsection (c) of this section.

(e) In evaluating whether a work location is geographically accessible the carrier shall at minimum consider:

(1) the affect that the employee’s physical limitations have on the employee’s ability to travel;

(2) the distance that the employee will have to travel;

(3) the availability of transportation; and

(4) whether the offered work schedule is similar to the employee’s work schedule prior to the injury.

(f) The following is the order of preference that shall be used by carriers evaluating an offer of employment:

(1) the opinion of a doctor selected by the [Division] to evaluate the employee’s work status;

(2) the opinion of the treating doctor;

(3) opinion of a doctor who is providing regular treatment as a referral doctor based on the treating doctor’s referral;

(4) opinion of a doctor who evaluated the employee as a consulting doctor based on the treating doctor's request; and

(5) the opinion of any other doctor based on an actual physical examination of the employee performed by that doctor.

(g) A carrier may deem the wages offered by an employer through a [BFOE] to be [post-injury earnings], as outlined in [Rule] 129.2 of this title (relating to Entitlement to [TIBs]), on the earlier of the date the employee rejects the offer or the seventh day after the employee receives the offer of modified duty unless the employee’s treating doctor notifies the carrier that the offer made by the employer is not consistent with the employee’s work restrictions. For the purposes of this section, if the offer of modified duty was made by mail, an employee is deemed to have received the offer from the employer five days after it was mailed. The wages the carrier may deem to be [post-injury earnings] are those that would have been paid on or after the date the carrier is permitted to deem the offered wages as [post-injury earnings].

(h) Nothing in this section should be interpreted as limiting the right of an employee or a carrier to request a benefit review conference relating to an offer of employment. The [Division] will find an offer to be bona fide if it is reasonable, geographically accessible, and meets the requirements of subsections (b) and (c) of this section.

Neither the Act nor Rule 129.6 require that the offer describe how an injured employee can perform the job activities within his or her work restrictions. The ALJ has used an incorrect standard of law in making her determination. Accordingly, we reverse the ALJ’s determination that the employer did not make a BFOE on May 18, 2017, to the claimant entitling the carrier to adjust the post-injury weekly earnings from June 17, 2017, through the date of the CCH, and we remand this issue to the ALJ for further action consistent with this decision.

Because we have reversed the ALJ’s determination that the employer did not make a BFOE on May 18, 2017, to the claimant, we also reverse the ALJ’s determination that the claimant is entitled to full TIBs from June 17, 2017, through the date of the CCH, and we remand this issue to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the claimant is entitled to $7,037.55 in partial TIBs from October 29, 2016, through June 16, 2017, and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the employer did not make a BFOE on May 18, 2017, to the claimant entitling the carrier to adjust the post-injury weekly earnings from June 17, 2017, through the date of the CCH, and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant is entitled to full TIBs from June 17, 2017, through the date of the CCH, and we remand this issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to consider the evidence regarding the claimant’s earnings based on reduced hours for reasons unrelated to the compensable injury and determine how this evidence impacts the amount of partial TIBs to which the claimant is entitled. The ALJ is then to determine the amount of partial TIBs to which the claimant is entitled from October 29, 2016, through June 16, 2017, based on the evidence. The ALJ is also to determine whether the employer tendered a BFOE to the claimant on May 18, 2017, using the correct standard of law. The ALJ is then to determine whether the claimant is entitled to full TIBs from June 17, 2017, through the date of the CCH.

The true corporate name of the insurance carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7THSTREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

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 June 27, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ).^[1] The ALJ resolved the disputed issues by deciding that (1) the compensable injury of (date of injury), extends to right leg strain, left leg strain, sprain ligaments of cervical spine, strain muscle fascia tendon of lower back, strain muscle fascia tendon at right shoulder, and strain muscle tendon at right foot but does not extend to multilevel degenerative disease at C5-7; mild to moderate to severe foraminal narrowing in the left C5-7, neural foramina mild spinal canal stenosis at C5-6, left thyroid lobe 2.1 cm cyst, abnormal menstrual bleeding, visualized portion of the heart enlarged and pericardial fluid, right arm strain, and amount fluid within the stomach; (2) the appellant (claimant) reached maximum medical improvement (MMI) on May 13, 2016; (3) the claimant’s impairment rating (IR) is zero percent; (4) the employer tendered a bona fide offer of employment (BFOE) to the claimant; and (5) the claimant had disability resulting from the compensable injury of (date of injury), from October 3, 2015, through November 13, 2015; but that the claimant did not have disability from November 14, 2015, through the date of the CCH.

The claimant appealed the ALJ’s determinations regarding the issues of extent of injury, BFOE, MMI, IR, and disability for the period from November 14, 2015, through the date of the CCH, arguing that the evidence supports inclusion of the disputed conditions as part of the compensable injury, that she has not reached MMI, that the employer’s offer of employment does not meet the requirements of 28 TEX. ADMIN. CODE § 129.6 (Rule 129.6), and that she has had disability from November 14, 2015, through the date of the CCH.

The respondent (self-insured) responded, urging affirmance.

The ALJ’s determination that the claimant had disability resulting from the compensable injury from October 3 through November 13, 2015, was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

We note that there are two Findings of Fact No. 4 contained in the ALJ’s Decision and Order. The second Finding of Fact No. 4 should, in fact, be Finding of Fact No. 5. We reform the ALJ’s decision to consecutively number the Finding of Fact Nos. 1 through 7.

The claimant testified that she was injured when she stepped onto a partially open manhole cover and fell into a grease trap. The parties stipulated that the claimant sustained a compensable injury on (date of injury).

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), extends to right leg strain, left leg strain, sprain ligaments of cervical spine, strain muscle fascia tendon of lower back, strain muscle fascia tendon at right shoulder, and strain muscle tendon at right foot but does not extend to multilevel degenerative disease at C5-7; mild to moderate to severe foraminal narrowing in the left C5-7, neural foramina mild spinal canal stenosis at C5-6, left thyroid lobe 2.1 cm cyst, abnormal menstrual bleeding, visualized portion of the heart enlarged and pericardial fluid, right arm strain, and amount fluid within the stomach is supported by sufficient evidence and is affirmed.

MMI/IR

The ALJ’s determination that the claimant reached MMI on May 13, 2016, with a zero percent IR is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability resulting from the (date of injury), compensable injury from November 14, 2015, through the date of the hearing is supported by sufficient evidence and is affirmed.

BFOE

In evidence are two letters from the employer purporting to be BFOEs, one dated January 15, 2016, and the second dated March 10, 2016. In the Discussion section of her Decision and Order, the ALJ stated that both letters met the requirements of Rule 129.6 and we find the evidence admitted supports such statement. Accordingly, the ALJ’s determination that the employer tendered a BFOE to the claimant is supported by sufficient evidence and is affirmed.

FINDING OF FACT NO. 1.F.

The parties stipulated on the record that (Dr. P) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to serve as designated doctor for the purpose of addressing extent of the compensable injury. The parties further stipulated that (Dr. D) was appointed by the Division to serve as designated doctor for the purpose of addressing MMI, IR, disability, and return to work. In her Finding of Fact No. 1.F., however, the ALJ incorrectly stated the parties stipulated that:

F.The Division appointed [(Dr. E)] as designated doctor on the issues of extent of injury, [MMI], and [IR].

The designated doctors in this case are Dr. P and Dr. D. There is no Report of Medical Evaluation (DWC-69) or other medical report in evidence from Dr. E. We accordingly reform Finding of Fact No. 1.F. as follows:

F.The Division appointed [Dr. P] as designated doctor on the issue of extent of injury.

Because the ALJ failed to incorporate the stipulation that Dr. D was appointed by the Division to serve as designated doctor for the purpose of addressing MMI, IR, disability, and return to work into her Finding of Fact No. 1 as agreed by the parties at the CCH, we reform the ALJ’s decision and add the following as Finding of Fact No. 1.H.:

H.The Division appointed [Dr. D] as designated doctor on the issues of [MMI], [IR], disability and return to work.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), extends to right leg strain, left leg strain, sprain ligaments of cervical spine, strain muscle fascia tendon of lower back, strain muscle fascia tendon at right shoulder, and strain muscle tendon at right foot but does not extend to multilevel degenerative disease at C5-7; mild to moderate to severe foraminal narrowing in the left C5-7, neural foramina mild spinal canal stenosis at C5-6, left thyroid lobe 2.1 cm cyst, abnormal menstrual bleeding, visualized portion of the heart enlarged and pericardial fluid, right arm strain, and amount fluid within the stomach.

We affirm the ALJ’s determination that the claimant reached MMI on May 13, 2016, with a zero percent IR.

We affirm the ALJ’s determination that the claimant did not have disability resulting from the (date of injury), compensable injury from November 14, 2015, through the date of the hearing.

We affirm the ALJ’s determination that the employer tendered a BFOE to the claimant.

We reform the ALJ’s decision to consecutively number the Finding of Fact Nos. 1 through 7.

We reform Finding of Fact No. 1.F. to state that the parties stipulated that the Division appointed Dr. P as designated doctor on the issue of extent of injury.We reform the ALJ’s decision to add the following as Finding of Fact No. 1.H.:

H.The Division appointed [Dr. D] as designated doctor on the issues of MMI, IR, disability and return to work.

The true corporate name of the insurance carrier is HOUSTON INDEPENDENT SCHOOL DISTRICT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

RICHARD CARRANZA, SUPERINTENDENT

4400 WEST 18TH STREET

HOUSTON, TEXAS 77092.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

Section 410.152 was amended in House Bill 2111 of the 85th Leg., R.S. (2017), effective September 1, 2017, changing the title of hearing officer to ALJ.

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