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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 12, 2018, and continued with the record closing on June 13, 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 a lumbar disc herniation at L5-S1; (2) the appellant/cross-respondent (claimant) had no disability resulting from the compensable injury, from June 4, 2017, through the June 13, 2018, date of CCH; and (3) the claimant’s average weekly wage (AWW) is $743.44 based on multiple employment. Also, the ALJ resolved the issue of “[w]hat is the amount of [the] [c]laimant’s post-injury earnings (PIE) after January 24, 2017?” by determining the PIE amount for that period in dispute.[1]

The claimant appealed, disputing the ALJ’s extent of injury and disability determinations. Additionally, the claimant appealed a portion of the ALJ’s PIE determinations that were not favorable to him and attached documentation that had been admitted into evidence. The respondent/cross-appellant (self-insured) responded, urging affirmance but it also filed a request to correct clerical errors and, in the alternative, a contingent appeal regarding the ALJ’s PIE determinations. The self-insured asserts the ALJ “appears to have inadvertently copied the dates for two-week time periods but copied the monetary amounts for one week time periods in her [f]indings and [c]onclusions regarding [PIE]” for the period after January 24, 2017, through August 12, 2017. Also, the self-insured requests a clerical correction or reversal be issued to the ALJ’s findings and conclusions to change the amount of PIE, after August 14, 2017, from $0 to $619.51. The claimant did not respond to the self-insured’s cross-appeal.

The ALJ’s determination that the claimant’s AWW is $743.44 based on multiple employment has not been appealed and has become final pursuant to Section 410.169.

DECISION

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

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that consisted of a lumbar disc protrusion at L4-5. It is undisputed that the claimant had multiple employment on the date of his injury, (date of injury). The claimant’s employer, (Employer), is the claim employer, and (Non-Claim Employer) is the non-claim employer. The claimant sustained a compensable injury while working for the claim employer on (date of injury). The claimant’s last day of employment with the claim employer was (date of injury).

The claimant continued to work for the non-claim employer as an “employee” until August 14, 2017. The claimant moved from Texas to (state) in August 2017; however, he continued to work for the non-claim employer as an “independent contractor” after August 14, 2017.

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).

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a lumbar disc herniation at L5-S1 is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant had no disability resulting from the compensable injury, from June 4, 2017, through the June 13, 2018, date of CCH is supported by sufficient evidence and is affirmed.

PIE

The issue before the ALJ as reflected on the Benefit Review Conference (BRC) Report was “[w]hat is the amount of [the] [c]laimant’s [PIE] after January 24, 2017?” 28 TEX. ADMIN. CODE § 129.2(b) (Rule 129.2(b)) provides that lost wages are the difference between the employee’s gross AWW and the employee’s gross PIE. If the employee’s PIE equals or exceeds the employee’s AWW, the employee has no lost wages. Rule 129.2(c) provides a non-exhaustive list of what PIE shall include. Rule 129.2(d) provides what PIE shall not include.

The self-insured states special rules apply for the calculation of PIE for an employee with more than one employer. The self-insured states that the calculation of PIE is determined by whether the change in earnings was caused by the compensable injury and references Rule 122.5.

Rule 122.5(f) states:

(f) Employees who file Multiple Employment Wage Statements are required to report all changes in employment status and/or earnings at the Non-Claim Employer to the carrier until the employee reaches maximum medical improvement (MMI).

(1) The employee shall report all changes in employment status at the Non-Claim Employer including termination or resignation within 7 days of the date the change takes place.

(2) The employee shall report within 7 days of the end of the pay period in which a change in earnings at the Non-Claim Employer related to the compensable injury took place. This would include both reductions and increases in wages as compared to the prior week as long as the difference was caused by the compensable injury such as because the employee's ability to work changed or the employer was more or less able to provide work that met the employee's work restrictions.

The preamble to Rule 122.5 states that House Bill 2600, 77th Texas Legislature made additions to Section 408.042, AWW for Part-Time Employee or Employee with Multiple Employment,[2] to address employees with multiple employment. The preamble to Rule 122.5 states, in part, that:

Based on these changes, employees can now report wages from other jobs they held at the time of the injury to influence the [AWW]. The [Texas Department of Insurance, Division of Workers’ Compensation (Division)] is required to specify by rule how this other wage information is to be collected and distributed. To avoid any undue confusion and to improve the clarity of the rules, the [Division] adopts new [Rule] 122.5 to address the inclusion of wages from multiple employers. This rule provides for the reporting of wages from the Non-Claim Employers. The new rule clearly states expectations so that all system participants will understand the requirements that the Act and rules place on them with the purpose of improved benefit delivery, reduced disputes and violations and ease in holding participants accountable for their actions and inactions.

Furthermore, the preamble states that:

Based on public comment, subsection (f) was added to place the requirement on injured employees to notify their carrier of all changes in employment status and/or earnings at the non-claim employer until the injured employee reaches [MMI], which could potentially be up to 104 weeks. The subsection essentially requires employees to report the same sorts of changes that a Claim Employer is required by [Rule] 120.3 (relating to Employer's Supplemental Report of Injury) to report to the carrier on the Supplemental Report of Injury. However, timeframes are slightly different in an attempt to better line up reporting duties with carrier payment duties. The reason that this is important is that changes in earnings at the non-claim employer during the [temporary income benefits] and [supplemental income benefits] periods can have a big impact on the employee's entitlement to benefits.

Rule 122.5(f) defines the time period, up to the date the claimant reaches MMI, for which any change in employment status or wages at the non-claim employer must be reported to the carrier as it applies to calculating AWW. In Appeals Panel Decision (APD) 151496-s, decided September 30, 2015, the Appeals Panel clarified that Rule 122.5 does not establish a deadline for filing an Employee’s Multiple Employment Wage Statement (DWC-3ME).

The ALJ determined the claimant’s PIE for each week from January 24, 2017, through August 12, 2017. The ALJ determined the claimant’s PIE for August 13, 2017, was $0. The ALJ determined that the claimant’s PIE from August 14, 2017, to the date of the June 13, 2018, CCH was also $0.

PIE from January 24, 2017, through August 12, 2017

For the week of January 24, 2017, through January 28, 2017, the ALJ’s Finding of Fact No. 17 states that the earnings are based on a computer list of wages earned and not the pay statements.

For the weeks for the period from January 29, 2017, to August 12, 2017, the ALJ states in her discussion that she determined the amount of PIE for each week based on the non-claim employer’s pay statements. In evidence are the claimant’s pay statements from the non-claim employer, which are broken down into two-week periods. The ALJ notes in her discussion that she “[d]ivided by 2 for weekly PIE” to calculate the amount of PIE from the non-claim employer for each week.

The self-insured states that the ALJ correctly listed the PIE using two-week time periods and using earnings for a two-week period in the discussion portion of the decision; however, the self-insured contends, as mentioned earlier, that the ALJ “appears to have inadvertently copied the dates for two-week time periods but copied the monetary amounts for one week time periods in her [f]indings and [c]onclusions regarding [PIE].”

Finding of Fact No. 16 states, in part, that “[f]or the each of the week of the following periods, the PIE rate is. . .” (emphasis added).

Conclusion of Law No. 6, the decision and order section on the first page and the decision section on the last page state, in part, that “[f]or the each of the two weeks of the following periods, the PIE rate is. . .” (emphasis added).

The self-insured requests that a clerical correction be issued to clarify the ALJ’s determinations regarding the amount of PIE for each week. We agree the ALJ’s language referencing “each of the week of the following periods” and “each of the two weeks of the following periods” is inconsistent as to what the amount of PIE is for each week. However, the ALJ’s discussion explains that she determined the amount of PIE for each week based on the evidence presented at the CCHs. Given the ALJ’s discussion and the evidence presented in support of the ALJ’s PIE determination, we affirm, as reformed, the ALJ’s decision to clarify the amount of PIE for each week by stating:

For each week of the following periods, the PIE amount from the non-claim employer is:

From January 24, 2017, to August 12, 2017

PIE Amount

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

01/24/2017 - 01/28/2017

01/29/2017 - 02/04/2017

02/05/2017 - 02/11/2017

02/12/2017 - 02/18/2017

02/19/2017 - 02/25/2017

02/26/2017 - 03/04/2017

03/05/2017 - 03/11/2017

03/12/2017 - 03/18/2017

03/19/2017 - 03/25/2017

03/26/2017 - 04/01/2017

04/02/2017 - 04/08/2017

04/09/2017 - 04/15/2017

04/16/2017 - 04/22/2017

04/23/2017 - 04/29/2017

04/30/2017 - 05/06/2017

05/07/2017 - 05/13/2017

05/14/2017 - 05/20/2017

05/21/2017 - 05/27/2017

05/28/2017 - 06/03/2017

06/04/2017 - 06/10/2017

06/11/2017 - 06/17/2017

06/18/2017 - 06/24/2017

06/25/2017 - 07/01/2017

07/02/2017 - 07/08/2017

07/09/2017 - 07/15/2017

07/16/2017 - 07/22/2017

07/23/2017 - 07/29/2017

07/30/2017 - 08/05/2017

08/06/2017 - 08/12/2017

$417.75

$607.28

$607.28

$641.25

$641.25

$659.07

$659.07

$685.84

$685.84

$741.42

$741.42

$630.42

$630.42

$673.69

$673.69

$669.75

$669.75

$623.44

$623.44

$540.98

$540.98

$497.10

$497.10

$585.75

$585.75

$585.57

$585.57

$531.60

$531.60

PIE from August 13, 2017, to June 13, 2018, date of CCH

The ALJ’s Finding of Fact No. 18 states that “[t]here is no evidence of money earned for 08/13/2017” and Finding of Fact No. 19 states that “[t]here was no evidence of the amount of money [the] [c]laimant earned after August 14, 2017.”

The claimant asserts on appeal that he continued to work for the non-claim employer as an independent contractor. In evidence are copies of pay statements dated after August 14, 2017 from the non-claim employer; an email from the claimant stating that on December 13, 2017, he received a check from the non-claim employer; and an email from the non-claim employer stating that “after the August 14 termination date, he only worked approx. 15 hours a week (at the most) during September, and less than 10 in the first couple of weeks in October.” Given the documentation in evidence, the ALJ’s findings of “no evidence” are material misstatements of fact. Accordingly, we reverse that portion of the ALJ’s determination that for August 13, 2017, the PIE rate is $0 and from August 14, 2017, through the June 13, 2018, date of CCH, the claimant’s weekly PIE rate is $0, and we remand to the ALJ to determine the amount of PIE from August 13, 2017, through the June 13, 2018, date of CCH.

Furthermore, we note that Section 410.203(c) precludes a remand more than once. Given that we are remanding for the ALJ to determine the amount of PIE from August 13, 2017, through the June 13, 2018, date of CCH, we note that the self-insured specifically requests a clerical correction to the ALJ’s findings and conclusions to change the amount of PIE, after August 14, 2017, from $0 to $619.51. The self-insured states that the claimant’s PIE “from January 24, 2017, through August 12, 2017, was $17,346.26 for 28 weeks, or an average of $619.51 per week.” However, Rule 129.2(c) provides what PIE shall include. Although Rule 129.2(c) does not provide an exhaustive list of what PIE shall include, it does provide that PIE is a documented weekly amount. Furthermore, Rule 129.2 does not provide that PIE must be calculated as an average by dividing the amount of earnings from the non-claim employer by the weeks worked by the injured employee.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a lumbar disc herniation at L5-S1.

We affirm the ALJ’s determination that the claimant had no disability resulting from the compensable injury, from June 4, 2017, through the June 13, 2018, date of CCH.

We affirm, as reformed, that portion of the ALJ’s determination for each week of the following period, from January 24, 2017, to August 12, 2017, the PIE amount as stated in the table above.

We reverse that portion of the ALJ’s determination that for August 13, 2017, the PIE rate is $0 and we reverse that portion of the ALJ’s determination that from August 14, 2017, through the June 13, 2018, date of CCH, the claimant’s weekly PIE rate is $0, and we remand to the ALJ to make a determination on the issue of the amount of PIE from August 13, 2017, through the June 13, 2018, date of CCH, consistent with this decision.

REMAND INSTRUCTIONS  

On remand the ALJ is to correct her misstatement of the evidence regarding the documentation in evidence.  The ALJ shall consider all of the evidence and make a determination as to the amount of PIE for each week for the period from August 13, 2017, through the June 13, 2018, date of CCH.

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 APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is STARBUCKS CORPORATION (a certified self-insured) 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.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that the parties actually litigated the PIE issue from January 24, 2017, rather than after January 24, 2017.

  2. Section 408.042(e) provides that for an employee with multiple employment, only the employee’s wages that are reportable for federal income tax purposes may be considered.  Section 408.042(e) further provides that the employee shall document and verify wage payments subject to this section.

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 24, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury sustained on (date of injury), does not extend to carpal tunnel syndrome (CTS), medial epicondylitis, or lateral epicondylitis of the right upper extremity; (2) the appellant (claimant) does have disability from May 14, 2016, and continuing through the date of the CCH as a result of the compensable injury sustained on (date of injury); (3) the claimant was employed by a non-claim employer, but is not entitled to increased income benefits pursuant to Section 408.042 and 28 TEX. ADMIN. CODE §128.1(h) (Rule 128.1(h)) (we note that the decision contains an incorrect reference to Section 408.043, which will be addressed below); (4) the claimant had post-injury earnings (PIE) from May 14 through August 27, 2016, and again from October 4, 2016, and continuing through the date of the CCH; (5) $380.18 is the claimant’s average weekly wage (AWW) and the claimant failed to establish the date income benefits began to accrue based on multiple employment wages; (6) the claimant reached maximum medical improvement (MMI) on July 5, 2016; and (7) the claimant’s impairment rating (IR) is zero percent.

The claimant appealed all of the hearing officer’s determinations that were adverse to her, contending that the evidence did not support those determinations. The respondent (carrier) responded, urging affirmance of the hearing officer’s extent of injury, MMI, and IR determinations. The carrier did not respond regarding the remainder of the hearing officer’s determinations.

The hearing officer’s determination that the claimant does have disability from May 14, 2016, and continuing through the date of the CCH as a result of the compensable injury sustained on (date of injury), was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), at least in the form of a right elbow and right lower arm strain. The claimant testified she was injured when lifting a heavy SUV engine with a coworker.

We note that the decision contains an incorrect statutory reference to Section 408.043 rather than the correct statutory reference to Section 408.042 in the Decision and Order paragraph on the first page, Issue Statement 3, Conclusion of Law No. 5, and the Decision. We reform all references of Section 408.043 to Section 408.042.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury sustained on (date of injury), does not extend to CTS, medial epicondylitis, or lateral epicondylitis of the right upper extremity is supported by sufficient evidence and is affirmed

MMI AND IR

The hearing officer’s determination that the claimant reached MMI on July 5, 2016, is supported by sufficient evidence and is affirmed.

The hearing officer’s determination that the claimant’s IR is zero percent is supported by sufficient evidence and is affirmed.

PIE

The hearing officer’s determination that the claimant had PIE from May 14 through August 27, 2016, and again from October 4, 2016, and continuing through the date of the CCH is supported by sufficient evidence and is affirmed.

AWW

The hearing officer’s determination that $380.18 is the claimant’s AWW and the claimant failed to establish the date income benefits began to accrue based on multiple employment wages is supported by sufficient evidence and is affirmed.

INCREASED INCOME BENEFITS PURSUANT TO SECTION 408.042 AND RULE 128.1(h)

The claimant argued at the CCH that she worked for another employer, while she was working for the claim employer prior to her (date of injury), compensable injury. In evidence is an Employee’s Multiple Employment Wage Statement (DWC-3ME) dated March 9, 2017, stating that she earned wages from the non-claim employer during the pay periods beginning on October 25, 2015, through February 13, 2016. We note that this DWC-3ME does not contain a date stamp showing receipt by the Texas Department of Insurance, Division of Workers’ Compensation (Division).

The hearing officer determined that the claimant was employed by a non-claim employer but is not entitled to increased income benefits pursuant to Section 408.042 and Rule 128.1(h). The hearing officer explained her rationale as follows:

On March 9, 2017, [the] [c]laimant provided, in her exhibits, another [DWC-3ME] with the wage information of the second employer for the 13 weeks prior to her compensable injury . . . it is difficult to determine when she delivered this form, with the correct wage information, to the Division and [the] [c]arrier. It appears that the [c]arrier received this information when it was exchanged in preparation for the [CCH] on March 2, 2017. Since the correct information was not filed with the Division and [the] [c]arrier, [the] [c]laimant is not entitled to include the wages earned with the second employer when she sustained the compensable injury.

Section 408.042(e) provides:

For an employee with multiple employment, only the employee’s wages that are reportable for federal income tax purposes may be considered. The employee shall document and verify wage payments subject to this section.

Rule 128.1(h), amended effective May 16, 2002, states in pertinent part:

(h) For employees injured on or after July 1, 2002, who are employed by more than one employer on the date of injury and the employee submits the wage information from the other employer(s) in the form and manner prescribed by [Rule] 122.5 of this title (relating to [DWC-3ME]), the carrier shall calculate the AWW using the wages from all the employers in accordance with this section.  The employee’s AWW shall be the sum of the AWWs for each employer.

* * * *

(2) The portion of the employee’s AWW based upon employment with each “Non-Claim Employer” (as the term is defined in [Rule] 122.5 of this title) shall be calculated in accordance with [Rule] 128.3 of this title (relating to [AWW] Calculations for Full-Time Employees, and for Temporary Income Benefits for All Employees) except that the employee’s wages from the Non-Claim Employer(s) shall only include those wages that are reportable for federal income tax purposes.

Rule 122.5(f), effective May 16, 2002, states:

(f) Employees who file [DWC-3MEs] are required to report all changes in employment status and/or earnings at the Non-Claim Employer to the carrier until the employee reaches [MMI].

(1) The employee shall report all changes in employment status at the Non-Claim Employer including termination or resignation within 7 days of the date the change takes place.

(2) The employee shall report within 7 days of the end of the pay period in which a change in earnings at the Non-Claim Employer related to the compensable injury took place. This would include both reductions and increases in wages as compared to the prior week as long as the difference was caused by the compensable injury such as because the employee's ability to work changed or the employer was more or less able to provide work that met the employee's work restrictions.

In Appeals Panel Decision 151496-s, decided September 30, 2015, the Appeals Panel clarified that Rule 122.5 does not establish a deadline for filing a DWC-3ME. In the case on appeal the claimant has effectively submitted the DWC-3ME for the non-claim employer to the carrier and the Division by the exchange of that document and its admission into evidence at the CCH. The hearing officer’s failure to consider the claimant’s DWC-3ME because she could not determine when the claimant filed the DWC-3ME with the Division and the carrier was legal error.

Rule 122.5 also provides the following:

(d) The Multiple Employment Wage Statement shall include

 

1.  the employee’s name, address, and social security number;

 

2.  the date of the Non-Claim Employer’s hire of the employee;

 

3.  the date of injury;

 

4.  the Non-Claim Employer’s name, address, and federal tax identification number;

 

5.  the name and phone number of a person at the Non-Claim Employer who can be contacted to verify the wage information (unless the wage information was not provided by a person at the Non-Claim Employer - such as if the wage information came from the Texas Workforce Commission or the employee’s pay stubs);

 

6.  the wage information required by subsection (e) of this section with documentation that supports the wage information being reported; and

 

7.  a certification that the wage information provided includes all wage information required by subsection (e) of this section and that the information is complete and accurate.

 

(e) The wage information required to be provided in a Multiple

Employment Wage Statement includes the employee’s Non-Claim Employer wages, as defined in [Rule] 128.1 of this title (relating to [AWW]:  General Provisions), earned during the 13 weeks immediately preceding the date of injury and the number of hours the employee worked to earn the wages being reported.  The wages are limited to those reportable for federal income tax purposes.

The March 9, 2017, DWC-3ME in evidence does not contain the non-claim employer’s address or federal tax identification number as required under Rule 122.5(d)(4). Because the DWC-3ME did not contain all of the information required in Rule 122.5(d), the claimant is not entitled to increased income benefits pursuant to Section 408.042 and Rule 128.1(h). For this reason we affirm the hearing officer’s determination that the claimant was employed by a non-claim employer, but is not entitled to increased income benefits pursuant to Section 408.042 and Rule 128.1(h).

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

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

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 January 5, 2006. The disputed issue at the CCH was the appellant’s (claimant) average weekly wage (AWW) after September 1, 2004. The hearing officer resolved the disputed issue by deciding that the claimant’s AWW on and after September 1, 2004, is $520.48. The claimant appeals, contending that his AWW effective September 1, 2004, should be recalculated to $698.77 based on the inclusion of discontinued nonpecuniary wages. The respondent (self-insured) requests affirmance.

DECISION

Reversed and remanded.

The parties stipulated that the claimant sustained a compensable injury on ___, and that the claimant’s AWW through August 31, 2004, is $520.48. The issue concerns the claimant’s AWW after September 1, 2004. The parties disagreed on whether the premiums the self-insured paid for the claimant’s health and dental insurance should be included in his AWW after September 1, 2004, and also disagreed on the amount of such premiums. The claimant has worked for the self-insured as an hourly employee for about 17 years. He was enrolled in the self-insured’s health and dental insurance program, which is administered through a union health and welfare trust. It is undisputed that prior to his compensable injury and after the compensable injury up through August 31, 2004, the self-insured paid its portion of the premiums for the claimant’s health and dental insurance. Because the self-insured had continued to pay its portion of the premiums after the compensable injury up through August 31, 2004, the stipulated AWW of $520.48 through August 31, 2004, does not include the amount the self-insured was paying for the health and dental insurance premiums. It is unclear how or whether the claimant’s portion of the health and dental insurance premiums were paid after his injury up through August 31, 2004, but it is undisputed that his health and dental insurance coverage remained in effect up through August 31, 2004.

Effective September 1, 2004, the health insurance carrier for hourly employees changed and those employees were required to enroll with the new health insurer to continue coverage. This was for both health and dental coverage. The claimant said that he was off work due to his compensable injury and did not receive notice of the change in health insurance carriers or the need to enroll with the new carrier to continue coverage. He said that in prior years the open enrollment period for health insurance was only for adding or changing coverage. The hearing officer found that the claimant did not receive notice of the open enrollment period in August 2004 because he was off work due to his compensable injury and that the claimant did not re-enroll in the group health and dental insurance coverage for the period beginning September 1, 2004, because he was unaware of the open enrollment period to re-enroll in such coverage. The hearing officer further found that because the claimant was not enrolled in the group health and dental insurance program on or after September 1, 2004, the self-insured did not pay any premiums for that insurance on claimant’s behalf on or after September 1, 2004. The evidence reflects that the claimant’s health and dental insurance was terminated effective September 1, 2004, due to the claimant’s failure to submit enrollment forms.

In the Background Information section of the hearing officer’s decision, the hearing officer stated in part:

Since the Claimant did not re-enroll in the health or dental insurance program for the period beginning September 1, 2004, these coverages were fringe benefits that the Claimant did not opt to obtain. Thus, the employer’s premium contributions paid on behalf of the Claimant prior to September 1, 2004, which constitute nonpecuniary wages as defined by [TEX. ADMIN. CODE Section 126.1(2)] Division Rule 126.1(2), were discontinued on and after September 1, 2004 due to the Claimant’s failure to re-enroll in the insurance program, and such were not discontinued by the employer for any other reason. Consequently, there are no nonpecuniary wages that were shown to be included in the Claimant’s AWW on and after September 1, 2004. His AWW on and after September 1, 2004, therefore, is $520.48.

The claimant contends that the hearing officer erred in determining that his AWW on and after September 1, 2004, is $520.48, the same amount as his AWW prior to September 1, 2004, because he contends that under Rule 128.1(c)(2), his AWW should be recalculated effective September 1, 2004, to include the discontinued nonpecuniary wages in the form of the self-insured’s contribution for his health and dental insurance premiums. We agree with the claimant’s contention.

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. Section 408.045 provides that the Texas Department of Insurance, Division of Workers’ Compensation (Division) may not include nonpecuniary wages in computing an employee’s AWW during a period in which the employer continues to provide the nonpecuniary wages. Rule 126.1(2) provides that nonpecuniary wages are wages paid to an employee in a form other than money, and one of the examples is health insurance premiums.

Rule 128.1(c), amended to be effective May 16, 2002, provides that an employee’s wage, for the purpose of calculating the AWW, shall not include:

(2)any nonpecuniary wages continued by the employer after the compensable injury. However, except as provided by § 128.7 of this title and Texas Labor Code § 408.042(e), if the employer discontinues providing nonpecuniary wages, the AWW shall be recalculated and these discontinued nonpecuniary wages shall be included.

With regard to the exceptions stated in Rule 128.1(c)(2), Section 408.042(e) has to do with the AWW of an employee with multiple employment and is not applicable to the facts of this case. The other exception is Rule 128.7 and it pertains to the AWW for school district employees and provides in subsections (b) and (e) that only pecuniary wages are used in calculating the AWW of a school district employee. Rule 126.1(3) provides that pecuniary wages are wages paid to an employee in the form of money. In Appeals Panel Decision (APD) 042756-s, decided December 16, 2004, a school district continued to pay its portion of a health and dental insurance premium for the injured school district employee until several months after the compensable injury, the school district then ceased to pay the premium, and the hearing officer included the health and dental premium paid by the school district in the injured employee’s AWW for the purpose of computing temporary income benefits (TIBs) as of the date the school district discontinued those payments. The Appeals Panel held that it was error to include the health and dental premium in the AWW of the school district employee because Rule 128.7, pertaining to the AWW for school district employees, is an exception to Rule 128.1(c)(2), and Rule 128.7(b) provides that wages includes only pecuniary wages. Rule 128.7 and APD 042756-s are not applicable to the present case because the claimant is not a school district employee.

Because Rule 128.1(c)(2), as amended effective May 16, 2002, does not provide for an analysis of why the employer discontinued providing nonpecuniary wages, the reason the employer discontinued providing nonpecuniary wages is not relevant in determining the AWW. In this case, the hearing officer used an irrelevant factor in determining the AWW because the hearing officer concluded that the AWW should not be recalculated based on the claimant’s failure to re-enroll in the health and dental insurance program. As noted, the only two exceptions to the recalculation provision of Rule 128.1(c)(2) are Rule 128.7 and Section 408.042(e), neither of which apply to the facts of this case. Accordingly, we hold that the hearing officer erred in determining that the discontinued nonpecuniary wages in the form of health and dental insurance premiums paid by the self-insured but discontinued effective September 1, 2004, are not to be included in the claimant’s AWW on and after September 1, 2004.

The hearing officer did not make a finding as to the amount of the discontinued nonpecuniary wage. The claimant contended that the AWW on and after September 1, 2004, should be recalculated to $698.77 to include the discontinued nonpecuniary wage and contended that Claimant’s Exhibit 2, Page 1, supported that amount. The self-insured disagreed with the claimant and contended that if AWW were to be recalculated for discontinued nonpecuniary wages, the recalculated amount would be $633.54 and contended that Carrier’s Exhibit C supported that amount. Because the hearing officer did not address the amount of the discontinued nonpecuniary wage and because the amount is in dispute, we remand the case to the hearing officer to make a determination on the amount of the discontinued nonpecuniary wage in the form of the self-insured’s contribution to the claimant’s health and dental insurance premiums and to include that amount in the claimant’s recalculated AWW on and after September 1, 2004. Because it appears that the self-insured made monthly contributions for health and dental insurance, a conversion to a weekly amount will need to be made to recalculate the AWW. The hearing officer may request that the parties provide additional evidence on the amount of the discontinued nonpecuniary wage.

We reverse the hearing officer’s decision that the claimant’s AWW is $520.48 on and after September 1, 2004, and we remand the case to the hearing officer to make a determination on the amount of the discontinued nonpecuniary wage in the form of the self-insured’s contribution to the claimant’s health and dental insurance premiums and to include that amount, after conversion to a weekly amount, in the claimant’s recalculated AWW on and after September 1, 2004.

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 Division, pursuant to Section 410.202, as amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of time in which a request for appeal or a response must be filed.

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

(NAME)

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Robert W. Potts

CONCUR:

Thomas A. Knapp
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 March 24, 2004. The hearing officer determined that appellant (claimant) did not sustain a compensable injury; that she did not have disability; that she did not timely report the claimed injury; and that the salary continuation received by claimant is considered post-injury earnings. Claimant appealed these determinations on sufficiency grounds and also contends that the hearing officer misapplied the law to the facts of the case. Respondent (carrier) responded that the Appeals Panel should affirm the hearing officers decision and order.

DECISION

We affirm.

We have reviewed the complained-of determinations and conclude that the issues regarding injury, disability, and timely notice involved fact questions for the hearing officer. The hearing officer reviewed the record and decided what facts were established. We conclude that the hearing officer’s determinations are supported by the record and 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).

Given our affirmance of the complained-of determinations, we need not address the determinations regarding post-injury earnings.

We affirm the hearing officer’s decision and order.

According to information provided by carrier, the true corporate name of the insurance carrier is NETHERLANDS INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

CONCUR:

Veronica L. Ruberto
Appeals Judge

Edward Vilano
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 February 26, 2003. The hearing officer resolved the disputed issue by deciding that the respondent (claimant) was employed by a nonclaim employer on _____________, and that he is entitled to increased income benefits pursuant to Section 408.042(c)(1) of the 1989 Act. The appellant (self-insured) appealed, arguing that Section 408.042 does not apply to the claimant because he was a volunteer firefighter. The appeal file does not contain a response from the claimant.

DECISION

Affirmed.

The facts in this case were largely undisputed. The parties stipulated that the claimant was a volunteer firefighter and had worked in that capacity for over thirteen weeks; that the claimant sustained a compensable injury while in the course and scope of his volunteer firefighting; and, that the claimant was also employed by a nonclaim employer, and had been so employed for over thirteen weeks. The hearing officer specifically found that the claimant earned no wages as a volunteer firefighter for the county.

It is undisputed that the self-insured is a political subdivision. See Section 504.001(3). Because the self-insured is a political subdivision, the applicable statute is Section 504.001 et seq. Section 504.001(2) defines employee as (A) a person in the service of a political subdivision who has been employed as provided by law; or (B) a person for whom optional coverage is provided under Section 504.012 (which specifically provides for optional coverage of volunteer firefighters) or 504.013. The parties stipulated that “on _____________, employer provided workers’ compensation coverage through self insurance through the TAC WC Self-Insurance Fund.” We find no merit in the self-insured’s contention that employees under the definition of Section 504.001(2)(B) “are volunteers and do not work for a political subdivision.” The hearing officer did not err in finding that the claimant was an employee under the applicable statute.

The self-insured argues that volunteer firefighters are not employees as defined in Section 401.012 and the provisions of Section 408.042 do not apply to them. However, Section 504.002 specifically excepts the definition of employee contained in Section 401.012. Pursuant to Section 504.002, Section 408.042 applies. Section 504.002 specifically incorporates all of Chapter 408 of the 1989 Act, entitled “WORKERS’ COMPENSATION BENEFITS,” with the exception of the provisions concerning an action for exemplary damages in the instance of gross negligence or an intentional act or omission. Further, nothing in Section 408.042 limits the term employee to the definition contained in Section 401.012.

Section 408.042(c)(1) provides that the average weekly wage (AWW) for an employee with multiple employment is equal to the sum of the AWWs computed under Section 408.042(c)(2) and (3). Since the claimant had worked for both employers for at least thirteen weeks preceding the injury, only Section 408.042(c)(2) applies. That section provides that for each of the employers for whom the employee has worked for at least the 13 weeks immediately preceding the date of injury, the AWW is equal to the sum of the wages paid by that employer to the employee in the 13 weeks immediately preceding the injury divided by 13. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE §128.1(h) (Rule 128(h)) provides that for employees injured on or after July 1, 2002, who are employed by more than one employer on the date of injury and the employee submits the wage information from the other employer(s) in the form and manner prescribed by Rule 122.5, the carrier shall calculate the AWW using wages from all the employers. Rule 128.1(h)(2) further provides that the portion of the employee’s AWW based upon employment with each “Non-Claim Employer” shall be calculated in accordance with Rule 128.3 except that the employee’s wages from the non-claim employer(s) shall only include those wages that are reportable for federal income tax purposes.

We do not read Section 504.012(a) to be inconsistent with the provisions of Section 408.042. We note Section 408.042(g) provides that an insurance carrier is entitled to apply for and receive reimbursement at least annually from the subsequent injury fund for the amount of income benefits paid to a worker under Section 408.042 that are based on employment other than the employment during which the compensable injury occurred.

The hearing officer did not err in determining that the claimant was an “employee with multiple employment” and correctly applied the rules to determine that the claimant’s AWW is $514.38. We find no error in the hearing officer’s determination that the claimant is entitled to increased benefits pursuant to Section 408.042(c)(1).

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is self-insured through the TEXAS ASSOCIATION OF COUNTIES WORKERS’ COMPENSATION SELF-INSURANCE FUND and the name and address of its registered agent for service of process is

EXECUTIVE DIRECTOR

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Margaret L. Turner

CONCUR:

Gary L. Kilgore
Appeals Judge

Thomas A. Knapp
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 March 6, 2002. The hearing officer held that the claimant had disability for the period from October 18 through December 18, 2001 (disability prior to October 18th was not in issue); that the claimant was not entitled to approval of a change in treating doctor; and that the claimant's earnings from his own business amounted to weekly earnings of $200.38 for the period from May 30 through August 31, 2001; and that the respondent (carrier) was entitled to adjust temporary income benefits (TIBs) for that amount.

The claimant has appealed all points. The claimant argues that the amounts received by his business were not wages, that he had a documented period of disability longer than that allowed by the hearing officer, that the evidence supports the approval of a change in treating doctor. The carrier responds by reciting facts in favor of the decision.

DECISION

Affirmed in part, reversed and rendered in part.

DISABILITY AND CHANGE OF TREATING DOCTOR

We have reviewed the record concerning the findings on change of treating doctor and disability. The hearing officer has explained her reasoning in her decision and we find support in the record for the inferences drawn and consequently do not find reversible error.

POST-INJURY EARNINGS FROM CONCURRENT EMPLOYMENT

The hearing officer has committed an error of law in considering the claimant's post-injury earnings from his consulting business as an amount that may be credited against TIBs. The claimant had been paid TIBs until the period of time in question for disability at this CCH. His unrefuted testimony was that he owned an electrical consulting business prior to working for the employer. He continued to operate his business on a reduced scale after his employment by the employer in January 2000. The claimant testified that his calender year earnings for that business were $4,000 to 5,000 up until the ___________, date of injury and no amount for the rest of the year thereafter. The claimant testified that the 2001 calendar year earnings totaled $5,600. The hearing officer found that post-injury earnings were $2,605.00 for the period from May 30 through August 31, 2001. Although the claimant asserted that a business manager was responsible for rendering all services, the hearing officer evidently disbelieved this.

The hearing officer focused on the one customer company for which amounts paid were proven and used this as a measure of computing average weekly earnings that the carrier could credit against TIBs. Whether or not the same were Awages paid directly to the claimant (as opposed to another person), the question of whether an offset against TIBs is due is not answered by those questions alone, where the consulting business was not started post-injury but was concurrent employment at the time of the injury.

The Appeals Panel has interpreted the 1989 Act as a whole and determined that where the claimant is concurrently employed at the time of his injury, and is still able to perform the concurrent employment, although not the job on which he/she was injured, earnings from the concurrent employment are not considered post-injury earnings, Texas Workers' Compensation Commission Appeal No. 93343, decided June 14, 1993, unless there is evidence that earnings increased in that business as a result of the claimant's increased availability. See Texas Workers' Compensation Commission Appeal No. 990827, decided May 19, 1999; Texas Workers' Compensation Commission Appeal No. 011100, decided July 2, 2001. The record in this case did not include evidence that any increase that may in fact have existed was due to the claimant's increased availability as opposed to the nature of the services paid for.

We accordingly reverse the allowance of a credit against TIBs and render the decision that the claimant's post-injury earnings from his concurrent employment may not be used to reduce TIBs and that the carrier is not entitled to the reduction of $200.38 a week.

In all other respects, the decision is not against the great weight and preponderance of the evidence and we affirm. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

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

C.T. CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Susan M. Kelley
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
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 5, 2002. With respect to the disputed issues, the hearing officer determined that the appellant (claimant) did not sustain a compensable injury; that the respondent (carrier) is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify the employer pursuant to Section 409.001; and that the claimant did not have disability. The claimant appeals these adverse determinations on sufficiency of the evidence grounds. The carrier replies, urging affirmance.

DECISION

Affirmed.

The claimant contended that he sustained an injury to his low back on ___________; that he reported the injury to his dispatcher/supervisor that same day; and that he had disability from May 25, 2001, through the date of the CCH. The evidence presented factual questions for the hearing officer to resolve. The claimant had the burden to prove that he was injured in the course and scope of employment, that he gave timely notice of his injury to his employer under Section 409.001 or had good cause for failing to timely notify his employer of his injury, and that he has had disability as defined by Section 401.011(16). Conflicting evidence was presented at the CCH. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). We conclude that the hearing officer's determinations are supported by sufficient evidence and that they are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

We affirm the decision and order of the hearing officer.

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

RONALD I. HENRY

10000 NORTH CENTRAL EXPRESSWAY

DALLAS, TEXAS 75230.

Michael B. McShane
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Philip F. O’Neill
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 August 7, 2001. The appellant (self-insured) appeals the hearing officer’s determination that the respondent (claimant) had disability as a result of the injury sustained on ____________, beginning on June 15, 2001, and continuing through the date of the CCH. The self-insured offers new evidence for the first time on appeal. The self-insured also appeals the hearing officer’s determination that the claimant has not had post-injury earnings (PIE) after May 10, 2000. The claimant responds, urging affirmance.

DECISION

Affirmed in part; reversed and remanded in part.

Along with its appeal, the self-insured submitted a copy of the "Operative Procedure Report," dated August 15, 2001, for the surgery that was performed on the claimant’s left knee after the CCH. The claimant testified that she requested preauthorization to undergo left knee surgery on several occasions but was denied until the self-insured authorized the surgery as recommended by the Texas Workers’ Compensation Commission (Commission)-appointed independent medical examination doctor on August 2, 2001. The "Operative Procedure Report" is new evidence offered for the first time on appeal. We will not generally consider evidence not submitted into the record, and raised for the first time on appeal. Texas Workers' Compensation Commission Appeal No. 92255, decided July 27, 1992. To determine whether evidence offered for the first time on appeal requires that a case be remanded for further consideration, we consider whether it came to the appellant's knowledge after the hearing, whether it is cumulative, whether it was through lack of diligence that it was not offered at the hearing, and whether it is so material that it would probably produce a different result. Texas Workers' Compensation Commission Appeal No. 93111, decided March 29, 1993; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). It is undisputed that the claimant suffered a compensable knee injury. The document that the self-insured submitted has not been shown to be so material that it would probably produce a different result had it been in evidence at the CCH.

On ___________, the claimant was injured while working when she became entangled in a vacuum cleaner extension cord and fell. She sustained injuries to her left shoulder and left knee. The evidence adduced at the hearing depicted the claimant as capable of performing light-duty work, but unable to return to full-duty work as a custodian for her employer due to her left knee condition. This evidence is sufficient to support the hearing officer’s determination of continuing disability through the date of the CCH, if the claimant’s PIE are less than her preinjury earnings as discussed below. Accordingly, we affirm the hearing officer’s determination of disability, subject to the outcome of the remand for the hearing officer to determine whether the claimant’s PIE exceed her average weekly wage (AWW).

The self-insured appeals the hearing officer’s determination that the claimant has not had PIE. The income in question was earned by a business originating after the claimant’s date of injury. The claimant testified that during May 2000, she and her husband opened a rental business that supplies various articles for parties, including tables and chairs. She testified that although they have rented equipment 41 times between May 2000 and June 2001, it is difficult to state the average amount that the business makes on a rental. The claimant testified that she would estimate the revenues from the business for the year 2000 to be about $2,000.00 with about the same amount for the year 2001 prior to the CCH. The claimant also testified that, at least occasionally, she actively participated in the business by assisting with setting up tables and chairs, along with her husband and son. The treating doctor was shown a surveillance videotape depicting the claimant engaged in set-up activities, and he opined that the claimant was working within her medical restrictions. The hearing officer determined that "[a]ny income generated after May 10, 2000, as a result of the Claimant’s party rental business, is not considered wages" and that "[t]he evidence was insufficient to establish that the Claimant received [PIE] during the period beginning May 10, 2000 and continuing through the date of the hearing." The hearing officer then concluded that "Claimant has not had [PIE] after May 10, 2000." The hearing officer erred in this regard, as we will explain below.

We hold that the money collected by the claimant’s business was income, i.e., wages earned for personal services, that should have been reported to the self-insured to reduce the amount of temporary income benefits (TIBs) that might otherwise be due the claimant. TIBs are due when an injured worker has not reached maximum medical improvement and has disability. Section 408.101(a). Section 401.011(16) defines "disability" as "the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage." The claimant had the burden of proving disability for any period claimed. Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994. In Texas Workers’ Compensation Commission Appeal No. 000783, decided May 22, 2000, we identified that the claimant has the burden of proof concerning income from a business and stressed the need for the claimant to be forthcoming and accurate with information about self-employment income:

Collateral source income, such as from a passive investment, generally has little or no impact on the ability to earn the preinjury wage and is not relevant to a disability question. Texas Workers' Compensation Commission Appeal No. 91132, decided February 14, 1992. In this case, the claimant described his business as an investment even though it was a proprietorship. The hearing officer could have inferred from the organization of the business that it involved some personal activity or labor on the part of the claimant, and was not merely a passive investment vehicle. The proper framework for analysis in this case was not in terms of investment income, but whether the claimant was engaged in a self-employment activity and whether the reasons for not earning the preinjury wage was his compensable injury or the nature of the business. See Texas Workers' Compensation Commission Appeal No. 982415, decided November 30, 1998. In such an analysis, evidence about what the claimant actually did to conduct and develop the business became as critical as financial data about the business. For his own reasons and despite the fact that he had the burden of proof on the issue of disability, claimant declined to present any such evidence. His unwillingness to share this information with the carrier under these circumstances was at his own risk of not prevailing on the merits, which is precisely what happened in this case.

We have held that self-employment or going into business and not drawing a salary cannot be used as a subterfuge to qualify for full TIBs if indeed there are some wages as defined in the 1989 Act earned or being generated and which inured to the benefit of the claimant. Texas Workers' Compensation Commission Appeal No. 950962, decided July 26, 1995; Texas Workers' Compensation Commission Appeal No. 94755, decided July 20, 1994. See, generally, Texas Workers' Compensation Commission Appeal No. 950819, decided July 6, 1995, a supplemental income benefits (SIBs) case where we observed that carriers are not required to subsidize a small-business operation, and Texas Workers' Compensation Commission Appeal No. 94918, decided August 26, 1994. To the extent that our prior cases have held that self-employment income does not qualify as wages, such cases are overruled. We conclude that the better view is as stated in Texas Workers' Compensation Commission Appeal No. 970519, decided April 30, 1997:

The express provisions in the 1989 Act are tailored to the "plain vanilla" employment situation where a paycheck, or other remuneration, are provided by an employer on a weekly basis to an unrelated employee. The fact that self-employment is not directly dealt with in the statute, however, does not mean that such status falls outside its provisions. We cannot interpret the SIBS provisions concerning underemployment to reach an absurd result because an employee may on occasion become his own employer after an injury. The hearing officer has, and we believe correctly, identified those items in this case, supported by expert testimony, which are not available to the claimant to in turn pay himself a "wage" because they were incurred and were paid as necessary expenses to allow the business to continue.

We see no reason to differentiate between SIBs and TIBs in this regard.

Section 408.103(a)(1) provides in relevant part that TIBs are to be computed "by subtracting the employee's weekly earnings after the injury from the employee's [AWW]." Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 129.2(b) (Rule 129.2(b)) defines "lost wages" as the "difference between the employee’s gross [AWW] and the employee’s gross [PIE].” Rule 129.2(c) provides, in pertinent part, that PIE shall include "(1) all pecuniary wages paid to the employee after the date of the injury, including wages based on work performed while on modified duty . . . ." Section 401.011(43) defines "wages" as "all forms of remuneration . . . for personal services."

Having reviewed the record in this case, the determination of the hearing officer that the claimant has not had PIE is not supported by sufficient evidence and is against the great weight and preponderance of the evidence so as to be manifestly unjust. The self-insured correctly sought to have the claimant’s self-employment income reduce the amount of TIBs, contending that this "income," in whole or part, constituted wages earned for personal services as opposed to passive income. We agree with the self-insured, and therefore reverse and remand on this issue for the hearing officer to further consider and develop the evidence to determine the claimant’s AWW and what weeks, if any, the claimant’s PIE were equal to, or more than, the AWW, which in turn will decide the disability issue. On remand the hearing officer should be aware that only that income properly attributable to the claimant should be apportioned to her and not that which would be properly apportioned to her husband. Further, we note that proper business expenses, such as those allowed under generally accepted accounting principles, or the Internal Revenue Code, may be deducted from the total revenue to arrive at the proper "wage" allocation for the claimant. See Texas Workers’ Compensation Commission Appeal No. 001222, decided July 14, 2000, citing Appeal No. 970519, supra.

The decision and order of the hearing officer are affirmed in part, and reversed and remanded in part.

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 Commission's Division of Hearings, pursuant to Section 410.202, which was amended June 17, 2001, to exclude Saturdays, Sundays, and holidays listed in the Texas Government Code in the computation of the 15-day appeal and response periods.

The true corporate name of the insurance carrier is (SELF-INSURED EMPLOYER) and the name and address of its registered agent for service of process is

Michael B. McShane
Appeals Judge

CONCUR:

Robert E. Lang

Appeals Panel

Manager/Judge

Robert W. Potts
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 August 2, 2000. With regard to the disputed issue before him, the hearing officer determined that the appellant (claimant) was not a minor, apprentice, trainee, or student on _________ (all dates are 1999), and that the claimant’s average weekly wage (AWW) for purposes of computing impairment income benefits (IIBs) and/or supplemental income benefits (SIBs) is not subject to adjustment.

The claimant appeals, principally attacking the hearing officer’s interpretation of the 1989 Act and Texas Workers’ Compensation Commission (Commission) rules, and the workers’ compensation system in general. The claimant contends that he was a trainee under Section 408.044 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.6 (Rule 128.6). The claimant requests that we reverse the hearing officer’s decision and render a decision in his favor. The respondent (carrier) responds to the claimant’s appeal and urges affirmance.

DECISION

Affirmed.

The claimant testified that he is 21 years old, completed a course in diesel technology at a junior college, and was hired by (employer), a small truck repair shop at $6.00 an hour. It is undisputed that on _________, two weeks after being hired, the claimant was working on a grinding wheel which failed, resulting in traumatic injuries to the claimant’s face and the loss of vision in one eye. It is further undisputed that the claimant has a 25% impairment rating and that the claimant was released to return to full duty on November 9, that he continued to work for the employer in his preinjury job at his preinjury wage and that he was laid off on December 30.

Much of the testimony and evidence at the CCH, including the testimony of a college professor who did a wage survey, dealt with what the hourly wage of a "diesel mechanic" with three years experience would be. There were differences of opinion depending on whether it was a large shop or small shop, whether the employee was being paid at a straight rate or flat rate and whether the individual was a "fleet mechanic," a "diesel mechanic," or a tracked heavy equipment diesel mechanic. Most of that testimony and evidence ignores the threshold question, and the issue in this case, of whether the claimant was a trainee and entitled to an adjustment of his wage.

The applicable statutory provision in this case is Section 408.044, which states:

Section 408.044. [AWW] FOR MINOR, APPRENTICE, TRAINEE, OR STUDENT. (a) For computing [IIBs], [SIBs], lifetime income benefits [LIBs], or death benefits, the [AWW] of an employee shall be adjusted to reflect the level of expected wages during the period that the benefits are payable if:

(1)the employee is a minor, apprentice, trainee, or student at the time of the injury;

(2)the employee’s employment or earnings at the time of the injury are limited primarily because of the apprenticeship, continuing formal training, or education intended to enhance the employee’s future wages; . . .

Those provisions have been implemented in Rule 126.6, which states:

(a)In order to adjust [AWW] under this rule, for purposes of computing [IIBs], [SIBs], [LIBs], and death benefits, an injured employee must come within one of the following definitions, on the date of injury:

* * * *

(2)an "apprentice" is an employee learning a skilled trade or art by practical experience under the direction of a skilled crafts person or artisan;

(3)a "trainee" is an employee undergoing systematic instruction and practice in some art, trade, or profession with a view towards proficiency in it; . . . .

The claimant contends that he was a trainee under the cited provisions and that his AWW should be adjusted accordingly. As evidence to support that contention is a note dated January 12, 2000, which states:

To whom this may concern,

[The claimant] was hired as a mechanic trainee at [employer].

A letter dated April 18, 2000, from the employer’s safety director to the carrier’s adjusting service, states:

[the claimant] was hired as a trainee. He had no prior training as a diesel mechanic. He worked as a helper in the shop for twelve weeks [sic, should be two weeks] prior to his accident.

The uncontroverted testimony was that whatever title the claimant may have had, the claimant was hired and worked as a mechanic’s helper, and that the employer did not have a program of "systematic instruction and practice" in the art, trade, or profession of a diesel mechanic. It was anticipated that the claimant would increase his proficiency as a mechanic’s helper to the point where he may, or may not, have been considered a diesel mechanic at some time in the future. The claimant testified that after he was laid off by the employer, he subsequently obtained employment by another employer (employer 2) as a "mechanic’s helper" earning $8.00 an hour.

The hearing officer made the following determinations:

FINDINGS OF FACT

5.At the time of his injury, Claimant was not learning a skilled trade or art by practical experience under the direction of a skilled crafts person or artisan and was not an apprentice nor was he involved in an apprenticeship program.

6.At the time of his injury, Claimant was not undergoing systematic instruction and practice in some art, trade, or profession with a view towards proficiency in it and was not a trainee nor was he involved in a trainee program.

7.At the time of his injury, Claimant’s employment or earnings were not limited primarily because of apprenticeship, continuing formal education, or education intended to enhance his future wages.

CONCLUSION OF LAW

3.Claimant was not a minor, apprentice, trainee or student on _________ and his [AWW] for the purpose of computing [IIBs] and/or [SIBs] is not subject to adjustment.

The claimant, in a somewhat intemperate appeal, argues that the Commission was attempting to deny him benefits, that he "was, in fact, a trainee," that the hearing officer "chose to violate the spirit of the law by choosing to narrowly define apprentice and trainee," that the hearing officer’s interpretation "is far removed from the real world of true apprentices and trainees," that the hearing officer was "in concert with the employer and an insurance company" to limit the claimant’s benefits, and that the on-the-job training puts the claimant in the category of a trainee.

Although the claimant was referred to as a "trainee" in two documents, even the claimant’s own testimony indicated that he was in fact a mechanic’s helper, hoping some day to become a mechanic and that the employer had no systematic training program for instruction and practice on becoming a diesel mechanic. There was no evidence that the claimant was involved in a training or apprenticeship program with the employer other than what the claimant would get working on the job. We do not find the hearing officer’s interpretation unreasonable or contrary to the law, and it was in fact supported by the evidence. In that we are affirming the hearing officer’s determinations on the threshold issue of whether the claimant was a trainee entitled to an adjustment we do not get to the question of what his wage might have been after an adjustment.

We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we decline to substitute our opinion of the evidence for that of the hearing officer.

Upon review of the record submitted, we find no reversible error. We will not disturb the hearing officer’s determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and order of the hearing officer are affirmed.

Thomas A. Knapp
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Tommy W. Lueders
Appeals Judge

This case returns, having been remanded by our decision in Texas Workers’ Compensation Commission Appeal No. 992079, decided November 5, 1999, for further consideration and development of the evidence concerning the existence of "state law" which "mandate[d]" that the respondent (claimant), a special education teacher for the appellant (self-insured) at the time of her compensable injury on __________, be paid over a 12-month period for the services she provided during the 10-month period of her employment contract. At the contested case hearing, claimant had contended that "state law" required that her 10-month employment contract be paid out over 12 months and the hearing officer in his previous Decision and Order so found, concluding that claimant is not a seasonal employee for purposes of Section 408.043. On remand, the hearing officer provided the parties with an opportunity to provide him with briefs "identifying the statute or regulation, if any, that required Claimant to accept a contract designating a 12-month salary payment for a 10-month term of employment." In his decision on remand, the hearing officer states that neither party identified any such statute or regulation, that his conclusion of law in the prior Decision and Order (that claimant is not a seasonal employee for purposes of Section 408.043) was erroneous, and that claimant did, in fact, fall squarely under the precedents of Texas Workers’ Compensation Commission Appeal No. 92688, decided February 5, 1993, and Texas Workers’ Compensation Commission Appeal No. 93980, decided December 14, 1993. The hearing officer concluded that claimant was a seasonal employee and that her adjusted average weekly wage is $0.00 for the period from May 26 to August 8, 1999. This determination has not been appealed and has become final by operation of law. Section 410.169. The self-insured has requested our review for the limited purpose of reforming two of the findings of fact. The file does not contain a response from claimant.

DECISION

Affirmed as reformed.

Our decision in Appeal No. 992079, supra, contains a detailed recitation of the evidence which need not be repeated for this decision.

In the Decision and Order on remand the hearing officer made the following factual finding and also adopted and incorporated Findings of Fact Nos. 3 - 5 from his previous Decision and Order signed on September 2, 1999. The self-insured seeks our reform of the current Finding of Fact No. 2 and of the adopted and incorporated finding of fact, as follows:

FINDINGS OF FACT

2.The Claimant was not required by any state law to accept a contract providing for an employment term of 12 months paid out over a 12-month period. [Emphasis supplied.]

3.The Claimant’s employment contract provided that her remuneration be paid over a 12-month period, as required by state law. [Emphasis supplied.]

As mentioned in our decision in Appeal No. 992079, supra, a document accompanying claimant’s employment contract stated as follows: "Number of months employed: 10, Required days of service: 187," and claimant testified to signing employment contracts annually which required her to provide services for a number of days over a 10-month period. Given this evidence and the absence of any opposition by claimant, we see no basis for refusing to grant the requested relief and reform Finding of Fact No. 2 to change the reference to the employment term from "12 months" to "10 months."

The self-insured also requests the reformation of Finding of Fact No. 3 to delete the words emphasized above for the obvious reason that, as the hearing officer stated in his remand decision, neither party was able to identify any statute which "required the Claimant to accept a full-year pay schedule for a partial-year employment contract." Again, we see no basis for refusing to grant the requested relief.

We affirm, as reformed, the hearing officer’s Decision and Order on remand.

Philip F. O’Neill
Appeals Judge

CONCUR:

Robert W. Potts
Appeals Judge

Susan M. Kelley
Appeals Judge

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