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) on remand was held on October 8, 2009. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) sustained disability resulting from the compensable injury from July 23 through December 8, 2008; (2) the post-injury earnings available based on the bona fide offer of employment (BFOE) are $440.00 per week; and (3) the claimant is entitled to partial temporary income benefits (TIBs) in the amount of $5,033.96.

The appellant (carrier) appealed, disputing the hearing officer’s determinations of disability and the amount of partial TIBs. The appeal file does not contain a response from the claimant. The hearing officer’s determination that the post-injury earnings available based on the BFOE are $440.00 per week ($11/hour) was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

A CCH was initially held on April 20, 2009, to decide the disputed issues. In Appeals Panel Decision 091025, decided September 3, 2009, the case was remanded for reconstruction of the record. The claimant did not appear at the CCH on remand and a 10-day letter was sent to the claimant at his last known address. The claimant failed to respond to the 10-day letter and the hearing officer closed the record on October 21, 2009. The hearing officer found that the claimant did not have good cause for failing to appear at the CCH.

At the CCH held on April 20, 2009, the parties stipulated that the claimant sustained a compensable injury on _________, and that the claimant’s average weekly wage (AWW) is $677.38. Those stipulations were carried forward in the October 8, 2009, CCH.

DISABILITY

The hearing officer’s determination that the claimant sustained disability resulting from the compensable injury from July 23 through December 8, 2008, is supported by sufficient evidence and is affirmed.

TEMPORARY INCOME BENEFITS

Section 408.103(a)(1) provides 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. 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.

As previously noted, the hearing officer’s determination that the claimant had disability from July 23 through December 8, 2008, is affirmed. The claimant had disability for a period of 19 weeks and five days. The claimant was paid weekly. In evidence is the wage information for the claimant for the week beginning July 23 through the week ending December 9, 2008, with the exception of 1 week, from November 19 through November 25, 2008. However, there is a calendar in evidence which indicates that the claimant worked 39.5 hours for the week beginning November 19 and ending November 25, 2008. Further, the evidence indicates that the claimant worked 8 hours per day on December 3, 4, 5, and 8, 2008, for a total of 32 hours. The 40 hours reflected in the wage information for the week ending December 9, 2008, included the 8 hours worked by the claimant on December 9, 2008. The claimant’s disability period at issue ended December 8, 2008, therefore any hours worked on December 9, 2008, should not be included in the calculation of TIBs.

The carrier argues on appeal that the post-injury earnings available based on the BFOE in the amount of $440.00 per week should be considered. However, it is undisputed that the claimant was not actually paid $440.00 per week. The evidence indicates that the claimant was not able to work 40 hours per week for various reasons including weather conditions and economic conditions that affected the employer. The hearing officer did not include December 3 through December 8, 2008, in her calculations to determine the partial TIBs the claimant is entitled to.

Pursuant to Section 408.301(a), 70% of the amount of the claimant’s weekly earnings after the injury (a total of $6,062.20 from July 23 through December 8, 2008)^[1] subtracted from the claimant’s stipulated AWW is $5,239.85.

The hearing officer’s determination that the claimant is entitled to partial TIBs in the amount of $5,033.96 is against the great weight and preponderance of the evidence. We reverse the hearing officer’s determination that the claimant is entitled to partial TIBs in the amount of $5,033.96 and render a new decision that the claimant is entitled to partial TIBs in the amount of $5,239.85.

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

CORPORATION SERVICES COMPANY  

701 BRAZOS STREET, SUITE 1050 

AUSTIN, TEXAS 78701.

Margaret L. Turner
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

1. We note that the calculations were made on a weekly basis rather than the total for the disability period in question.

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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 20, 2009. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) sustained disability resulting from the compensable injury from July 23 through December 8, 2008; the post-injury earnings available based on the bona fide offer of employment are $440.00 per week; and the claimant is entitled to partial temporary income benefits (TIBs) in the amount of $5,033.96.

The carrier (appellant) appealed, disputing the hearing officer’s determinations regarding disability and the amount of partial TIBs to which the claimant is entitled. The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The CCH was recorded on one compact disc (CD). The CD indicated it contained 60 tracks which were approximately 59 minutes in length. The CD is completely inaudible. The file indicates that there was no court reporter and the file does not contain a transcript or a tape recording of the CCH proceeding. Consequently, we reverse and remand this case to the hearing officer for reconstruction of the CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

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 hearing officer, 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 LIBERTY MUTUAL FIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICES COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701.

Margaret L. Turner
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
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 September 12, 2001. The hearing officer resolved the disputed issues by concluding that: (1) the employer did not tender a bona fide offer of employment; (2) there were no post-injury earnings based on a bona fide offer of employment; (3) respondent (claimant) had disability continuously from April 20, 2001, through the date of the hearing; and (4) Dr. O is the treating doctor. In its appeal, appellant self-insured (carrier herein) argues both that there was no evidence that it recommended Dr. E to claimant and that claimant’s change of treating doctor was for an improper purpose. The appeals file does not contain a response from claimant.

DECISION

We affirm.

Carrier contends the hearing officer erred in determining that Dr. O is the treating doctor in this case. Carrier asserts that claimant sought to change treating doctors from Dr. E to Dr. O for improper reasons, citing Section 408.022(d), which provides that an employee may not change doctors to secure a new impairment rating or medical report. The hearing officer determined that Dr. O was the treating doctor based on Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9(c) (Rule 126.9(c)), which provides that a doctor recommended by the employer is not an “initial choice of treating doctor” unless the employee continues to receive treatment from the doctor for more than 60 days. There was evidence from which the hearing officer could determine that Dr. E was not claimant’s initial choice of treating doctor but that he was one recommended by the employer. See Rule 126.9(c). Thus, claimant could treat with Dr. O, as his initial choice of treating doctor. We conclude that the hearing officer’s determinations in this regard are not 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).

We affirm the hearing officer’s decision and order.

According to information provided by carrier, the true corporate name of the carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

CITY SECRETARY - ANNA RUSSELL

900 BAGBY

HOUSTON, TEXAS 77002.

Judy L. S. Barnes
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Gary L. Kilgore
Appeals Judge