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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 was held on February 4, 2010. The disputed issues before the hearing officer were:

  1. (1)Is the respondent (claimant) entitled to supplemental income benefits (SIBs) for the fifth quarter, November 1, 2009, through January 30, 2010?

  2. (2)Is the appellant (carrier) entitled to a reduction of the claimant’s SIBs based on contribution from an earlier compensable injury and, if so, by what proportion?

The hearing officer determined that: (1) the claimant is entitled to SIBs for the fifth quarter, November 1, 2009, through January 30, 2010, and (2) the carrier is not entitled to a reduction of the claimant’s SIBs based on contribution from an earlier compensable injury.

The carrier appeals the hearing officer’s determination the claimant is entitled to SIBs for the fifth quarter, November 1, 2009, through January 30, 2010. The claimant responded, urging affirmance. The hearing officer’s determination that the carrier is not entitled to a reduction of the claimant’s SIBs based on contribution from an earlier compensable injury has not been appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The parties stipulated that the claimant sustained a compensable injury on _________, which resulted in an impairment rating of 15% or greater, and the qualifying period for the fifth quarter of SIBs was from July 20 through October 18, 2009.

Eligibility criteria for SIBs entitlement are set forth in Section 408.142.  Section 408.142 as amended by the 79th Legislature, effective September 1, 2005, references the requirements of Section 408.1415 regarding work search compliance standards. Section 408.1415(a) states that the Texas Department of Insurance, Division of Workers’ Compensation Commissioner by rule shall adopt compliance standards for SIBs recipients.  28 TEX. ADMIN. CODE §§ 130.100-130.109 (Rules 130.100-130.109), effective July 1, 2009, govern the eligibility of SIBs.  Rule 130.101(4) provides in part that a qualifying period that begins on or after July 1, 2009, is subject to the provisions of this subchapter, and a qualifying period that begins prior to July 1, 2009, remains subject to the rules in effect on the date the qualifying period begins.

The claimant’s theory of entitlement to SIBs for the fifth quarter is based on a total inability to work. Rule 130.102(d)(1) provides, in pertinent part, that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the following work search requirements each week during the entire qualifying period:

* * *

(E) has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work.

The hearing officer found that the claimant provided a narrative report from a doctor which specifically explains how the injury caused a total inability to work during the qualifying period for the fifth quarter of SIBs, and no other records show that the claimant was able to return to work during such qualifying period. In the Background Information section of the decision, the hearing officer states that in a report dated October 16, 2009, (Dr. M), the treating doctor, “is unequivocal in his opinion [c]laimant has no ability to work in any manner due to her impairment.” However, that report from Dr. M dated October 16, 2009, also states that “[a]t the time of this letter, [the claimant] only qualifies for sedentary work therefore re-training thru [the Department of Assistive and Rehabilitative Services (DARS)] is recommended.” This report dated October 16, 2009, does not constitute a narrative report that explains how the compensable injury caused a total inability to work in any capacity, given that Dr. M opines that the claimant can work sedentary duty. Dr. M’s report dated October 16, 2009, does not constitute a narrative that specifically explains how the injury causes a total inability to work pursuant to Rule 130.102(d)(1)(E). There are no other records in evidence that constitute a narrative report from a doctor that explains how the compensable injury caused a total inability to work in any capacity.

The hearing officer’s finding that the claimant provided a narrative report from a doctor which specifically explains how the injury caused a total inability to work during the qualifying period for the fifth quarter of SIBs is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We need not make a determination on whether there are other records that show that the claimant was able to return to work during the qualifying period in dispute, given that there is no narrative report from a doctor which specifically explains how the injury caused a total inability to work pursuant to Rule 130.102(d)(1)(E). Accordingly, we reverse the hearing officer’s determination that the claimant is entitled to SIBs for the fifth quarter, November 1, 2009, through January 30, 2010, and we render a new decision that the claimant is not entitled to SIBs for the fifth quarter, November 1, 2009, through January 30, 2010.

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

701 BRAZOS, SUITE 1050

AUSTIN, TEXAS 78701.

Veronica L. Ruberto

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 March 1, 2006, with the record closing on July 25, 2006. There were nine disputed issues including three quarters of supplemental income benefits (SIBs), which the hearing officer determined in respondent’s 1 (claimant) favor. In Appeals Panel Decision (APD) 061787, decided October 30, 2006, the Appeals Panel reversed the hearing officer’s determination that the claimant’s impairment rating (IR) is 15% and since the IR is still in dispute the Appeals Panel reversed the hearing officer’s determinations on the three quarters of SIBs and a contribution issue. The Appeals Panel remanded the case for a determination of an IR that is not contrary to 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) and is supported by the evidence. The hearing officer is then to make a new determination on the SIBs issues and the contribution issue.

The appellant (carrier) appeals a Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees (Order), (Docket No. 1) (Sequence No. 25) dated August 25, 2006, approving 69.20 hours of the 70.50 hours of requested attorney fees at $250.00 an hour for an approved attorney fee of $17,300.00. The Order for Sequence No. 25 was ordered by the hearing officer who heard the case in APD 061787, supra. The carrier also purports to appeal (Docket No. 2) (Sequence No. 26) and (Docket No. 3) (Sequence No. 27), both dated August 22, 2006, and ordered by an individual other than a hearing officer. Sequence No. 26 approves 23 hours of requested attorney fees at $200.00 an hour and 1.75 hours of requested legal assistant fees at $50.00 an hour for an approved fee of $4,687.50. Sequence No. 27 approves 28.50 hours of attorney fees at $200.00 an hour and approves 1.75 hours of requested legal assistant fees at $50.00 an hour for a total approved fee of $5,787.50. The carrier recites that it appeals “‘reasonable and necessary’ attorney’s fees (Orders were issued in three amounts: $17,300.00; $4687.50; $5787.50).” The carrier argues that the hearing officer “failed to apportion those fees unrelated to the SIBs issues” and that the carrier was denied due process. The claimant’s attorney responds that the carrier’s appeal of Sequence Nos. 26 and 27 was not timely and otherwise urges affirmance.

DECISION

Reversed and remanded.

First, regarding the timeliness of carrier’s appeal of Sequence Nos. 26 and 27, we hold that the appeal was filed within 15 days after the orders were received from the Division. See Section 410.202(a). However, the Orders for Sequence Nos. 26 and 27 were ordered by someone other than a hearing officer. The proper method to appeal an Order for Attorney’s Fees ordered by someone other than a hearing officer after a benefit CCH is to request a benefit CCH. See 28 TEX. ADMIN. CODE § 152.3(d) and (e) (Rule 152.3(d) and (e)). See also APD 052736, decided January 11, 2006. Because the Orders for Sequence Nos. 26 and 27 were not ordered by a hearing officer after a benefit CCH, appeal of those orders is not properly before us and the Appeals Panel does not have jurisdiction to determine the appeal of those orders.

The Order for Sequence No. 25 approves 69.20 hours of attorney fees at $250.00 an hour for an approved total of $17,300.00 for services rendered from December 1, 2005, through July 24, 2006. We note that the Order for Sequence No. 26 covers services rendered from January 11, 2006, through August 15, 2006, and the Order for Sequence No. 27 covers services rendered from June 27, 2005, through January 11, 2006, therefore it appears there may be some overlapping time periods involved.

Section 408.147(c) and Rule 152.1(f) provide that an attorney for an employee who prevails when a carrier contests a Division determination of eligibility for SIBs shall be eligible to receive a reasonable and necessary attorney’s fee, including expenses, which is payable by the carrier, not out of the employees benefits and the fee shall not be limited to a maximum of 25% of the employee’s recovery. The provisions of Rule 152.1(f) only apply to SIBs cases and for all other matters to include the IR, contribution, extent of injury, carrier waiver and finality that are applicable to this case the provisions in Rule 152.1(c) and guidelines in Rule 152.4 apply. In considering the approval of attorney fees the hearing officer should consider the criteria listed in Section 408.221(d). We further note that the burden of proving that the time billed was reasonable and necessary is on the attorney claiming the fees. APD 951731, decided November 16, 1995; APD 980036, decided February 17, 1998.

The fees ordered to be paid in the Order for Sequence No. 25 recites the fees are to be paid pursuant to Section 408.147(c) and Rule 152.1(f). That is true for only the fees pertaining to SIBs in which the claimant prevails. Since this case was reversed and remanded in APD 061787, supra, there has been no final Division decision on entitlement to SIBs for the first, second and third quarters. Therefore, no decision and order on these attorney fees should be issued until there has been a determination on the IR and the SIBs for the first, second and third quarters. We agree with the carrier that the application for attorney fees should segregate the fees which are for SIBs from the fees which are for work performed on the other issues.

The Order for Sequence No. 25 is reversed and remanded to the hearing officer to await the determination on the IR, the three quarters of SIBs and contribution issues. Then the application for attorney fees is to apportion the fees for services rendered for SIBs and the services rendered for the other issues which are subject to the provisions of Rule 152.1(c) and the guidelines in Rule 152.4.

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, 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.

The true corporate name of the insurance carrier is CLARENDON NATIONAL 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.

Thomas A. Knapp
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). On January 5, 2006, a contested case hearing (CCH) was held. The disputed issue at the CCH was whether the appellant (carrier) was entitled to a reduction of the respondent’s (claimant) impairment income benefits (IIBs) and/or supplemental income benefits (SIBs) based on contribution from an earlier compensable injury, and if so, by what amount. The hearing officer resolved the disputed issue by deciding that the carrier is not entitled to a reduction of the claimant’s IIBs and SIBs based on contribution from an earlier compensable injury. (attorney), an attorney with (law firm), represented the claimant at the CCH. The carrier appealed the hearing officer’s decision to the Appeals Panel and the hearing officer’s decision became final.

In a Texas Department of Insurance, Division of Workers’ Compensation (Division) Order For Attorney’s Fees dated March 23, 2006 (Sequence 36), the hearing officer ordered $280.00 in attorney’s fees to be paid to the law firm pursuant to Section 408.147(c) and 28 TEX. ADMIN. CODE § 152.1(f) (Rule 152.1(f)) for dates of service from November 1 through November 30, 2005. In a Division Order For Attorney’s Fees dated March 23, 2006 (Sequence 38), the hearing officer ordered $555.00 to be paid to the law firm pursuant to Section 408.147(c) and Rule 152.1(f) for dates of service from January 3 through January 23, 2006. The carrier has appealed the attorney’s fees ordered in Sequences 36 and 38. The claimant filed a response.

DECISION

We reverse the attorney’s fees orders in Sequences 36 and 38 and render a decision vacating those orders.

The claimant’s response states that on November 3, 2004, the Texas Workers’ Compensation Commission (now the Division) found that he was entitled to SIBs; that the carrier contested his entitlement to the first quarter of SIBs; that he retained the law firm to represent him; and that a hearing officer issued a decision and order following a CCH on March 22, 2005, that he was entitled to the first quarter of SIBs. Division records do not reflect an appeal of that decision.

On April 5, 2005, the carrier filed a Carrier’s Request For Reduction of Income Benefits Due to Contribution (TWCC-33) requesting a Division order to reduce the claimant’s IIBs and SIBs by 100% for the effects of a prior compensable injury. In a Division Order dated April 12, 2005, the Division ordered the carrier to reduce IIBs and SIBs (if any) by 80% for the effects of contribution. In a Notification Of Change In Amount Of Indemnity Benefit Payment (PLN 8) dated April 29, 2005, the carrier notified the claimant that the amount of SIBs he was receiving had decreased effective May 12, 2005, because the Division had approved the carrier to take 80% contribution from his prior impairment rating regarding another work-related injury, noting that the previous amount of monthly payment was $1,168.80 and that the new amount of monthly payment is $233.76. The carrier states in its appeal that the claimant filed three requests on May 23, 2005, July 28, 2005, and October 17, 2005, for a benefit review conference (BRC) to challenge the Division’s order on contribution. A BRC was held on November 18, 2005, on the disputed contribution issue. On January 5, 2006, a CCH was held on the disputed contribution issue, the hearing officer decided that the carrier is not entitled to contribution, the carrier appealed the hearing officer’s decision to the Appeals Panel, and the hearing officer’s decision became final.

In a Division Order for Attorney’s fees dated November 30, 2005 (Sequence 18), the hearing officer who presided at the March 22, 2005, CCH on entitlement to first quarter SIBs ordered $235.00 in attorney’s fees to be paid to the law firm from the claimant’s benefits for dates of service from November 1 through November 18, 2005.

In a Division Order for Attorney’s fees dated December 19, 2005 (Sequence 19), the “Commission” ordered $75.00 in attorney’s fees to be paid to the law firm from the claimant’s benefits for dates of service from November 30 through December 9, 2005.

In a Division Order for Attorney’s fees dated January 10, 2006 (Sequence 21), the hearing officer who presided at the January 5, 2006, CCH on the contribution issue ordered $450.00 in attorney’s fees to be paid to the law firm from the claimant’s benefits for dates of service from January 3 through January 5, 2006.

In a Division Order for Attorney’s fees dated February 10, 2005 (Sequence 23), the “Commission” ordered $60.00 in attorney’s fees to be paid to the law firm from the claimant’s benefits for a date of service of January 18, 2006.

In a Division Order for Attorney’s fees dated March 8, 2006 (Sequence 24), the “Commission” ordered $330.00 in attorney’s fees to be paid to the law firm from the claimant’s benefits for dates of service from January 23 through February 15, 2006.

It appears to be undisputed on appeal that the law firm’s services in Sequences 18, 19, 21, 23, and 24, related to the contribution issue (attend the November 18, 2005, BRC and the January 5, 2006, CCH, and other services), although the claimant characterizes the contribution dispute as involving entitlement to and amount of SIBs.

According to the Division’s Dispute Resolution Information System (DRIS), the law firm called the Division on March 15, 2006, and informed the Division that the law firm had erred in billing for the attorney fees because the fees should have been “SIBs fees.” The DRIS note of March 15, 2006, states that attorney fee orders would be canceled, that they would need to be resubmitted for approval, and that the law firm would need to reimburse the claimant for any amount the carrier had paid the law firm from the claimant’s benefits. Attached to the claimant’s response is an unsigned Division letter dated March 15, 2006, that states “All Division Orders for Attorney’s Fees issued prior to this date to attorney [law firm] are rescinded. The orders are being rescinded at the request of the attorney due to a billing error.”

In a Division Order for Attorney’s Fees dated March 23, 2006 (Sequence 36), the hearing officer who presided at the January 5, 2006, CCH on the contribution issue ordered $280.00 in attorney’s fees to be paid to the law firm pursuant to Section 408.147(c) and Rule 152.1(f) for dates of service from November 1 through November 30, 2005.

In a Division Order for Attorney’s Fees dated March 23, 2006 (Sequence 38), the attorney who presided at the January 5, 2006, CCH on the contribution issue ordered $555.00 in attorney’s fees to be paid to the law firm pursuant to Section 408.147(c) and Rule 152.1(f) for dates of service from January 3 through January 23, 2006.

It appears to be undisputed on appeal that the law firm’s services in Sequences 36 and 38 related to the contribution issue (attend the November 18, 2005, BRC and the January 5, 2006, CCH, and other services), although the claimant characterizes the contribution dispute as involving entitlement to and amount of SIBs.

The carrier appeals the attorney’s fees ordered in Sequences 36 and 38, contending that unrescinded orders exist for the same dates of service; that it was improper to issue the orders pursuant to Section 408.147(c) and Rule 152.1(f) requiring the carrier to directly pay attorney fees to the claimant’s attorney because the January 5, 2006, CCH did not address the carrier’s dispute of SIBs but instead was on the issue of contribution; that Sequences 18, 19, 21, 23, and 24, were not appealed and became final; that since the claimant’s attorney has been paid for dates of service from November 1 through November 30, 2005, through Sequences 18 and 19, claimant’s attorney is not entitled to further reimbursement from the carrier through Sequence No. 36; that since the claimant’s attorney has been paid for dates of service from January 3 through January 23, 2006, through Sequences 21, 23, and 24, the claimant’s attorney is not entitled to further reimbursement from the carrier through Sequence No. 38. The carrier contends that Section 408.147(c) and Rule 152.1(f) apply when a carrier disputes a particular quarter of SIBs; that the issue addressed at the January 5, 2006, CCH concerned contribution as defined under Section 408.084 and addressed whether the carrier is entitled to a credit for IIBs and SIBs; and that there is no legal basis for the application of Section 408.147(c) and Rule 152.1(f) because the claimant disputed the Division’s order awarding an 80% contribution.

The claimant responds that he objects to the jurisdiction of the Appeals Panel to review Sequences 36 and 38 because, while the attorney’s fees in question were ordered by a hearing officer, no benefit CCH has taken place, nor has any order from a hearing officer been issued following a CCH to invoke the standards of review provided for in Rule 152.3(e); and that a CCH has been scheduled for June 19, 2006, regarding attorney’s fees ordered concurrently with the attorney’s fees addressed in the appeal so that there is no point of error to address as there has been no decision or order from a hearing officer in regard to the attorney’s fees in question. The claimant further responds that “sequences of attorney’s fees issued to [law office] were billed in error pursuant to Division Rules 152.1 and 152.2 (whereby fees are deducted from the Claimant’s income benefits) when they should have been billed pursuant to Rule 152.1(f) (whereby the Carrier is directly liable for Attorney’s Fees incurred by a Claimant during a SIBs dispute);” that the law firm contacted the Division and requested that all attorney’s fees ordered to the law firm prior to March 15, 2006, be rescinded; that the law firm then resubmitted the attorney’s fees pursuant to Rule 152.1(f); and that the Division issued Sequences 25 through 40 ordering the previously ordered attorney’s fees to be paid pursuant to Section 409.147(c) and Rule 152.1(f).

The claimant further responds that there is legally and factually sufficient evidence to support the issuance of Sequences 36 and 38 and that there was no error in issuing Sequences 36 and 38 requiring the carrier to directly pay attorney fees to the claimant’s attorney as Sequences 18, 19, 21, 23, and 24, were rescinded by the Division. The claimant further states that steps have been taken by the law firm to insure that all benefits which were erroneously paid from the claimant’s benefits to the law office are secured for him pending final resolution of these appeals and a scheduled CCH. The claimant also responds that Section 408.147(c) applies because “by seeking a 100% contribution award in an attempt to cease paying [claimant] his entitled benefits the Carrier not only disputed entitlement to SIBS, but also the amount of [SIBs]” and that when attorney’s fees were incurred by the claimant in the process of “challenging that dispute are properly payable under Section 408.147(c).”

We first address the claimant’s jurisdictional argument. Rule 152.3(d) and (e) provide as follows:

(d)Except as provided in subsection (e) of this section, an attorney, claimant, or carrier who contests the fee fixed and approved by the Commission [now Division] shall request a benefit [CCH]. The request shall be made by personal delivery or first class mail and be filed with the Commission [now Division] field office handling the claim or the central office of the Commission [now Division] no later than the 15th day after receipt of the Commission’s [now Division’s] order. A claimant may request a hearing by contacting the Commission [now Division] in any manner no later than the 15th day after receipt of the Commission’s [now Division’s] order. The contesting party other than a claimant shall send a copy of the request by personal delivery or first class mail to the carrier and other parties, including the claimant and attorney.

(e)An attorney, claimant, or carrier who contests the fee ordered by a hearing officer after a benefit [CCH] shall request review by the appeals panel pursuant to the provisions of Section 143.3 of this title (relating to Requesting the Appeals Panel to review the Decision of the Hearing Officer).

The CCH on the contribution issue was held on January 5, 2006, and the hearing officer who presided at that CCH ordered the attorney’s fees in Sequences 36 and 38, both dated March 23, 2006 (after the Division letter of March 15, 2006, was issued rescinding orders for attorney’s fees prior to the date of the letter). It is undisputed that the attorney’s fees in Sequences 36 and 38 were for the law firm’s services in connection with the contribution dispute, although the claimant characterizes the contribution dispute as a dispute of entitlement to and amount of SIBs. Consequently, Sequences 36 and 38, which the carrier has appealed, were ordered by a hearing officer after a CCH, and the proper way to appeal Sequences 36 and 38 was to timely appeal those sequences to the Appeals Panel under Rule 152.3(e), which the carrier has done.

We next address the matter of whether a carrier’s request for and obtaining of an order for reduction of a claimant’s IIBs and SIBs due to contribution under Section 408.084 invokes a carrier’s liability for payment of a claimant’s attorney’s fees under Section 408.147(c) and Rule 152.1(f) when the claimant prevails on the contribution issue. We hold that a contribution dispute under Section 408.084 does not make the carrier liable for the claimant’s attorney’s fees incurred as a result of the contribution dispute under Section 408.147(c) and Rule 152.1(f), even if the claimant prevails in the contribution dispute.

Chapter 408 of the 1989 Act is entitled “WORKERS’ COMPENSATION BENEFITS”. Subchapter E is entitled “INCOME BENEFITS IN GENERAL.” Section 408.084 is in Subchapter E of Chapter 408 and is entitled “CONTRIBUTING INJURY.” Section 408.084 provides as follows:

(a)At the request of the insurance carrier, the commissioner may order that [IIBs] and [SIBs] be reduced in a proportion equal to the proportion of a documented impairment that resulted from earlier compensable injuries.

(b)The commissioner shall consider the cumulative impact of the compensable injuries on the employee’s overall impairment in determining a reduction under this section.

(c)If the combination of the compensable injuries results in an injury compensable under Section 408.161, the benefits for that injury shall be paid as provided by Section 408.162.

Subchapter H of Chapter 408 is entitled “SUPPLEMENTAL INCOME BENEFITS.” Section 408.147 is in Subchapter H and is entitled “CONTEST OF SUPPLEMENTAL INCOME BENEFITS BY INSURANCE CARRIER; ATTORNEY FEES.” Section 408.147 provides as follows:

(a)An insurance carrier may request a [BRC] to contest an employee’s entitlement to [SIBs] or the amount of [SIBs].

(b)If an insurance carrier fails to make a request for a [BRC] within 10 days after the date of the expiration of the [IIBs] period or within 10 days after receipt of the employee’s statement, the insurance carrier waives the right to contest entitlement to [SIBs] and the amount of [SIBs] for that period of [SIBs].

(c)If an insurance carrier disputes a commissioner’s determination that an employee is entitled to [SIBs] or the amount of [SIBs] due and the employee prevails on any disputed issue, the insurance carrier is liable for reasonable and necessary attorney’s fees incurred by the employee as a result of the insurance carrier’s dispute and for [SIBs] accrued but not paid and interest on that amount according to Section 408.064. Attorney’s fees awarded under this subsection are not subject to 408.221(b), (f), and (i).

Rule 152.1 is entitled “Attorney Fees: General Provisions” and subsection (f) provides as follows:

(f)An attorney for an employee who prevails when a carrier contests a Commission [now Division] determination of eligibility for [SIBs] shall be eligible to receive a reasonable and necessary attorney’s fees, including expenses. This fee is payable by the carrier, not out of the employee’s benefits and the fee shall not be limited to a maximum of 25% of the employee’s recovery. All provisions of these rules, except Section 152.4 of this title (relating to Guidelines for Legal Services Provided to Claimant’s and Carriers), apply.

When an insurance carrier requests an order for reduction of SIBs and IIBs under Section 408.084 due to contribution from an earlier compensable injury it is not disputing a commissioner’s determination that the claimant is entitled to SIBs or the amount of SIBs due, but instead is requesting a commissioner determination on contribution. The commissioner’s order on contribution to reduce IIBs and SIBs due to impairment from an earlier compensable injury may, as in this case, reduce the amount of SIBs, but the order for contribution is not a dispute by the carrier of a commissioner determination that an employee is entitled to SIBs or the amount of SIBs. The order for contribution under Section 408.084 is a determination by the Division that reduction of IIBs and SIBs is appropriate because of contribution from an earlier compensable injury, which does not equate to a dispute of a commissioner determination of SIBs entitlement or the amount of SIBs.

In addition, a determination of entitlement to SIBs and the amount of SIBs due is made on a quarterly basis based on a qualifying period and a dispute of entitlement to SIBs or amount of SIBs due is made by the carrier with regard to a particular quarter or quarters of SIBs eligibility. See Rules 130.100 – 130.110. In particular, Rule 130.108(c), (d), and (e) relate to a carrier’s dispute of particular quarters and Rule 130.108(f) provides that an insurance carrier who unsuccessfully contests a determination of entitlement to SIBs is liable for: (1) all accrued, unpaid SIBs, and interest on that amount, and; (2) reasonable and necessary attorney’s fees incurred by the employee as a result of the carrier’s dispute which have been ordered by the commission or court. We do not view a carrier’s request for and a Division order for reduction of SIBs under Section 408.084 due to contribution from an earlier compensable injury to be a dispute by the carrier of entitlement to SIBs or amount of SIBs for any particular quarter or quarters of SIBs; rather Section 408.084 is the authority by which a carrier may request the commissioner to take into account a documented impairment from an earlier compensable injury. While an order under Section 408.084 for contribution may reduce SIBs, the carrier’s request for and the Division’s order for contribution is not a dispute of a commissioner’s determination that the claimant is entitled to SIBs or the amount of SIBs, and thus when the claimant prevails at a CCH on the contribution issue he has not invoked a carrier’s liability for payment of a claimant’s attorney’s fees under Section 408.147(c) and Rule 152.1(f).

Because the attorney’s fee orders in Sequences 36 and 38 were for the law firm’s services in contesting on behalf of the claimant the order of contribution under Section 408.084, those attorney’s fees orders should not have been ordered to be paid pursuant to Section 408.147(c) and Rule 152.1(f), thereby making the carrier liable for those attorney fees. We reverse the attorney’s fees orders in Sequences 36 and 38 and render a decision vacating the attorney’s fees orders in Sequences 36 and 38.

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

KIRK HOOD

1021 MAIN STREET, SUITE 1150

HOUSTON, TEXAS 77002 6508.

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 December 7, 2004. The hearing officer resolved the disputed issue by deciding that the appellant (self-insured) is not entitled to contribution from the prior compensable injury. The self-insured appeals, contending that the hearing officer’s decision is erroneous. No response was received from the respondent (claimant).

DECISION

The hearing officer’s decision has become final pursuant to Section 410.169 because the self-insured’s appeal was not timely filed with the Texas Workers’ Compensation Commission (Commission).

Section 410.202(a) provides that to appeal the decision of a hearing officer, a party shall file a written request for appeal with the Appeals Panel not later than the 15th day after the date on which the decision of the hearing officer is received from the division and shall on the same date serve a copy of the request for appeal on the other party. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal or a response. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(e) (Rule 143.3(e)) provides that a request for appeal shall be presumed to be timely filed if it is: (1) mailed on or before the 15th day after the date of receipt of the hearing officer’s decision; and (2) received by the Commission not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(e) must be complied with for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 042751, decided December 8, 2004. Rule 102.5(d) provides in pertinent part that, for purposes of determining the date of receipt for those written communications sent by the Commission which require the recipient to perform an action by a specific date after receipt, unless the great weight of evidence indicates otherwise, the Commission shall deem the received date to be the first working day after the date the written communication was placed in a carrier’s (city) representative’s box located at the Commission’s main office in (city) as indicated by the Commission date stamp. See also Rule 143.3(d)(2) regarding deemed receipt of the hearing officer’s decision the first working day after the date the written communication was placed in the carrier’s (city) representative’s box, unless the great weight of evidence indicates otherwise.

A date stamp on the cover letter to the hearing officer’s decision reflects that it was placed in the self-insured’s (city) representative’s box on December 17, 2004. The first working day after December 17, 2004, was Monday, December 20, 2004. December 20, 2004, is the deemed date of receipt. The 15th day after December 20, 2004, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, was Tuesday, January 11, 2005. The self-insured’s appeal is dated January 12, 2005, and the envelope in which it was mailed contains a postage meter stamp date of January 12, 2005. Because the self-insured’s appeal was mailed to the Commission after January 11, 2005, it was not timely filed with the Commission. The self-insured’s appeal would also be untimely filed if the 15-day time period were calculated from the date the self-insured’s (city) representative provided a signed acknowledgment of receipt on December 20, 2004 (which was the first working day after the hearing officer’s decision was placed in the self-insured’s (city) representative’s box). Section 410.169 provides in pertinent part that a decision of a hearing officer regarding benefits is final in the absence of a timely appeal by a party.

Having determined that the hearing officer’s decision and order have become final under Section 410.169 because a timely appeal was not filed with the Commission, the Appeals Panel does not have jurisdiction to review the hearing officer’s decision.

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:

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 December 10, 2004. With regard to the issues before her, the hearing officer determined that the appellant/cross-respondent’s (claimant) compensable injury of ____________, extends to and includes a psychological injury; that the claimant’s impairment rating (IR) is 19%; and that the impairment income benefits (IIBs) and supplemental income benefits, if any, payable due to the claimant’s compensable injury are subject to a 21% reduction due to contribution from a prior compensable injury.

The claimant appeals the contribution determination to the extent that the hearing officer’s decision can be read as allowing the respondent/cross-appellant (carrier) to reduce IIBs beginning June 21, 2002, when the contribution did not accrue until April 7, 2004. The carrier appeals the determinations on extent of the injury, the IR, and contribution. Both parties responded to the other’s appeal.

DECISION

Reversed and remanded for reconstruction of the CCH record.

Section 410.202(a)(1) provides that the Appeals Panel shall consider the record developed at the CCH. The CCH was recorded on audio compact disc (CD). The CD enclosed in the file is blank. Consequently, we must remand the case to the hearing officer for reconstruction of the record.

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 Workers’ Compensation Commission’s Division of Hearings, 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 Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.

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

CT CORPORATION SYSTEMS

350 NORTH ST. PAUL STREET, SUITE 2900

DALLAS, TEXAS 75201.

Thomas A. Knapp

CONCUR:

Robert W. Potts
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 August 9, 2004. The hearing officer resolved the disputed issues by determining that the respondent’s (claimant) _____________, compensable injury extends to and includes post concussive syndrome, major depression with anxiety, and migraine headaches; that the claimant reached maximum medical improvement (MMI) on February 5, 2004, with a 10% impairment rating (IR); and that the appropriate reduction of the claimant’s supplemental income benefits (SIBs) based upon contribution from an earlier compensable injury is 0%. The appellant (carrier) appealed the determinations regarding extent of injury and contribution. The claimant responded, urging affirmance. The hearing officer’s determinations regarding MMI and IR have not been appealed and have become final. Section 410.169.

DECISION

Affirmed.

The issue of extent of injury presented a question of fact for the hearing officer to resolve. The hearing officer 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, including the 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, including the claimant. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). In view of the evidence presented, we cannot conclude that the hearing officer’s extent-of-injury determination is 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).

A carrier that seeks contribution due to a prior compensable injury has the burden to prove entitlement to, and the amount of, contribution. The carrier need not prove an exact percentage; however, there must be sufficient evidence to determine a contribution percentage that is reasonably supportable. Texas Workers’ Compensation Commission Appeal No. 961211, decided August 7, 1996. Section 408.084 provides that the Texas Workers’ Compensation Commission (Commission) may order a reduction in impairment income benefits and SIBs “in a proportion equal to the proportion of a documented impairment that resulted from earlier compensable injuries.” In determining the reduction in benefits because of contribution of a prior compensable injury, the Commission is to consider the “cumulative impact of the compensable injuries on the employee’s overall impairment . . . .” Section 408.084(b).

In Texas Workers’ Compensation Commission Appeal No. 941338, decided November 22, 1994, the Appeals Panel reversed the decision of the hearing officer because there was a simple use of impairment assigned under Table 49 of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association without an analysis of the cumulative impact of the prior compensable injury and the latest compensable injury and stated that an analysis of how the injuries worked together and the extent to which the prior injury contributed to the present impairment was required. In Texas Workers’ Compensation Commission Appeal No. 960589, decided May 3, 1996, the Appeals Panel stated that it appeared that the logical, appropriate way to assess cumulative impact is to start with the recent impairment and look back to the earliest impairment rather than to start with the earliest impairment and look forward to events that have not yet occurred.

The issue of contribution then becomes a question of fact for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 941405, decided December 1, 1994. A determination of contribution must be based on medical evidence, but the existence of medical evidence supporting contribution does not require an award of contribution. Texas Workers’ Compensation Commission Appeal No. 941170, decided October 17, 1994. Likewise, the mere existence of a prior compensable injury is insufficient to establish entitlement to contribution. Texas Workers’ Compensation Commission Appeal No. 031237, decided June 24, 2003. In the instant case, the hearing officer correctly stated that the carrier failed to provide a report from a doctor that compares the medical effects of the two injuries. In short, the carrier failed to provide a cumulative impact analysis and therefore did not sustain its burden of proof. The hearing officer 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 (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)). Having reviewed the record, we are satisfied that the challenged determinations of the hearing officer regarding the contribution issue are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Cain, supra.

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

CORPORATION SERVICES COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Daniel R. Barry
Appeals Judge

CONCUR:

Judy L. S. Barnes
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 August 5, 2004. With regard to the disputed issues the hearing officer determined that: (1) the date of maximum medical improvement (MMI) is May 28, 2002; (2) the respondent’s (claimant) impairment rating (IR) is 19%; (3) the Texas Workers' Compensation Commission (Commission) did not abuse its discretion in appointing a second designated doctor; (4) the claimant had disability from November 1, 2000, through May 28, 2002; and (5) that the appellant (carrier) is not entitled to contribution due to an earlier (1996) injury.

The carrier appeals, contending that: (1) the IR of Dr. C, the first designated doctor, reflected all compensable body parts and was rendered prior to statutory MMI (See Section 401.011(30)(B)); (2) the Commission abused its discretion in appointing a second designated doctor; (3) the correct IR is 13% with an MMI date of October 31, 2000 (pursuant to Dr. C’s third report); (4) the claimant was not entitled to temporary income benefits (TIBs) (did not have disability) after October 31, 2000; and (5) the carrier is entitled to contribution for the 1996 compensable injury. The file does not contain a response from the claimant.

DECISION

Affirmed in part, and reversed and remanded in part.

The parties stipulated that on (date of injury No. 1), the claimant sustained a compensable injury to his lumbar and cervical spine; that on (date of injury No. 2), the claimant sustained another compensable injury to his lumbar and cervical spine; that Dr. C was the first Commission-appointed designated doctor; that Dr. Y was the second Commission-appointed designated doctor; and that the claimant’s statutory date of MMI was May 28, 2002. It is also undisputed that the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) was the proper edition of the AMA Guides to be used.

WHETHER DR. C’S RATINGS WERE PROPER

Dr. C rendered his first rating in a Report of Medical Evaluation (TWCC-69) and narrative report dated October 31, 2000, where he certified MMI on that date with an 8% IR based on 0% impairment “due to abnormal motion of the cervical spine,” 3% impairment for lumbar loss of range of motion (ROM), and 5% impairment from Table 49, for “lumbar IVD/soft tissue lesion.” There were letters of clarification and responses clarifying that Dr. C included an assessment of the cervical spine which the carrier had accepted. For some reason (unclear to everyone) the claimant was sent back to Dr. C for a second examination. On a TWCC-69 dated September 25, 2001, and narrative, Dr. C again certified MMI on October 31, 2000, with a 16% IR based on a 6% impairment (apparently) for lumbar loss of ROM, 2% impairment for cervical loss of ROM, 4% cervical impairment from Table 49 (apparently) Section (II)(B) and 6% lumbar impairment from Table 49 (apparently) Section (II)(B) combined for a 16% IR. Subsequently, a doctor recommended lumbar spinal surgery which led to another request for clarification and a third evaluation by Dr. C. In a “Corrected Report” dated January 31, 2002, Dr. C certified MMI on October 31, 2000, with a 13% IR based on a combination of cervical and lumbar loss of ROM and values from Table 49. By stipulation the statutory date of MMI is May 28, 2002. The claimant had two level spinal surgery at L4-5 and L5-S1 on February 25, 2003. Records regarding the surgery were sent to Dr. C and in a letter dated July 8, 2003, stated that he would have to reexamine the claimant again and “it does appear that the date of MMI should be changed.” A Dispute Resolution Information System note of July 15, 2003, notes that Dr. C “states [that] MMI does need to be revised.”

None of Dr. C’s reports may be used because the initial MMI dates certified by Dr. C have been withdrawn in his July 8, 2003, letter and the great weight and preponderance of the medical evidence supports that the claimant was not at MMI on October 31, 2000. It is axiomatic that an IR cannot be assessed until the MMI date has been established. At no time does Dr. C accept or certify the statutory MMI date. While Dr. C may have included all the compensable body parts in his ratings, his MMI date is not supported by the evidence and was even withdrawn in subsequent correspondence.

ABUSE OF DISCRETION IN THE APPOINTMENT OF A SECOND DESIGNATED DOCTOR

Dr. C indicated that he wanted to examine the claimant in July 2003 and the claimant was scheduled for an examination. The claimant was unable to attend that examination because he was incarcerated toward the end of July 2003. Upon being released from incarceration the claimant attempted to reschedule the reexamination with Dr. C but by that time Dr. C was no longer on the Commission approved doctor list (ADL). As a consequence Dr. Y was appointed as the designated doctor to perform a post surgical evaluation of the claimant. In a TWCC-69 and report dated February 12, 2004, Dr. Y certified MMI on May 28, 2002, and assessed a 19% IR based on 5% impairment for cervical loss of ROM, 0% impairment for lumbar loss of ROM (invalidated measurements), 4% cervical impairment from Table 49 (II)(B) and 11% impairment from Table 49 (II)(E) and (F) for a surgically treated lumbar spine.

Although Dr. C responded to the requests for clarification and was cooperative, his certified MMI date was in fact withdrawn by him. Before Dr. C could certify another MMI date he was dropped from the ADL. In order to have the claimant examined by a designated doctor, a second designated doctor was appointed. See Section 408.122(c) and 408.125(e). The Commission did not abuse its discretion in the appointment of a second designated doctor. We affirm the hearing officer’s determination on this issue.

Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.1(c)(3) (Rule 130.1(c)(3)) provides that an assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date. The hearing officer, in the Background Information portion of his decision seems to analyze the case on the basis that spinal surgery was “not only contemplated prior to statutory MMI, but was delayed” due to the carrier’s refusal to authorize diagnostic testing. In Texas Workers' Compensation Commission Appeal No. 040313-s, decided April 5, 2004, the Appeals Panel referred to the preamble to Rule 130.1(c)(3) in noting that if the MMI date is changed due to a post MMI change in the injured employee’s conditions, there should be a reevaluation of the IR as of the new MMI date. Rule 130.1(c)(3) has been interpreted to mean that the IR shall be based on the condition as of the MMI date and not based on subsequent changes, including surgery. See also Texas Workers' Compensation Commission Appeal No. 040583, decided May 3, 2004. Rule 130.1(c)(3) does not contain any exceptions for cases where the carrier denies or delays diagnostic testing. There is no evidence that statutory MMI was extended pursuant to Section 408.104. Cases involving whether spinal surgery was under active consideration at the time of statutory MMI have been overcome by the provision of Rule 130.1(c)(3). We reverse the hearing officer’s determination that the claimant’s IR is 19% because very clearly Dr. Y considered, and included in his evaluation, the claimant’s post statutory MMI surgery. We remand for the claimant to be evaluated and rated at the time of MMI, which in this case is the statutory MMI date of May 28, 2002.

DISABILITY

Disability is defined in Section 401.011(16). The medical records and the claimant’s testimony clearly support the hearing officer’s determination on disability to May 28, 2002.

CONTRIBUTION

Section 408.084(a) provides that the Commission may order impairment income benefits and supplemental income benefits to be reduced in a proportion equal to the proportion of a documented impairment that resulted from earlier compensable injuries. Section 408.084(b) provides for the consideration of the cumulative impact of the compensable injuries on the employee’s overall impairment in determining a reduction under this section. As stipulated, the claimant had a prior compensable injury to his cervical and lumbar spine in 1996. The claimant has received a 5% IR for that injury based in Table 49 (II)(B) (a minimum of six months of medically documented pain). The hearing officer commented, and found, that the 1996 injury was only a lumbar sprain/strain which had resolved. The carrier contends that to receive an IR the impairment must be a permanent impairment. See Section 401.011(24). Although the hearing officer does not use the term cumulative impact he does discuss that the claimant had returned to work at heavy labor after his 1996 injury and that the claimant’s “current injury obviously involved much more than a lumbar/sprain.” We affirm the hearing officer’s determination on the contribution issue as being supported by the evidence.

We affirm the hearing officer’s determinations that the claimant’s date of MMI is May 28, 2002; that the Commission did not abuse its discretion in the appointment of a second designated doctor; that the claimant had disability for the dates found by the hearing officer; and that the carrier is not entitled to contribution from the 1996 injury. We reverse the hearing officer’s determination that the claimant’s IR is 19% as being contrary to Rule 130.1(c)(3) and remand the case for the claimant to be examined and evaluated for an IR as of the May 28, 2002, MMI date.

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

LEO F. MALO
12222 MERIT DRIVE, SUITE 700
DALLAS, TEXAS 75251.

Thomas A. Knapp
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

CONCURRING OPINION:

I concur with the majority opinion as I believe we are constrained by the operation of Rule 130.1(c)(3) to reach this result. I write separately to observe that I think this case illustrates one of the huge problems with applying Rule 130.1(c)(3). In the present case the finder of fact clearly believed that the claimant’s surgery was under consideration prior to the date of statutory MMI, but that the surgery was delayed due to the actions of the carrier until well after the date of statutory MMI. There is evidence in this record to support this belief. However, due to the operation of Rule 130.1(c)(3) the surgery cannot be taken into account in assessing the claimant’s MMI. Thus, the claimant may well end with a lower rating because the carrier delayed the claimant’s surgery. This appears to me to be unfair on its face and opens up the system to possible gamesmanship. However, since there is no exception in Rule 130.1(c)(3) which addresses this problem, there is certainly nothing the Appeals Panel can do, other than to point out the problem.

Gary L. Kilgore
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 June 9, 2004. With respect to the single issue before him, the hearing officer determined that the appellant/cross-respondent (carrier) is entitled to a 58% reduction of the respondent/cross-appellant’s (claimant) impairment income benefits and/or supplemental income benefits based on contribution from an earlier compensable injury. In its appeal, the carrier asserts error in the hearing officer’s determination that it is entitled to 58% contribution, arguing that 100% contribution should be awarded. In her cross-appeal, the claimant argues that the proper contribution percentage is either 13% or, alternatively, that no contribution should be awarded. The claimant also asserts error in the admission of Carrier’s Exhibit G. The appeal file does not contain a response from the claimant to the carrier’s appeal. In its response to the claimant’s cross-appeal, the carrier argues that the appeal is untimely. In the alternative, the carrier contends that the contribution percentage should not be reduced below the 58% figure ordered by the hearing officer.

DECISION

Affirmed.

Initially, we consider whether the claimant’s cross-appeal was timely filed. Pursuant to Section 410.202(a), a written request for appeal must be filed within 15 days of the date of receipt of the hearing officer’s decision. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays, Sundays, and holidays listed in Section 662.003 of the Texas Government Code from the computation of the 15-day period in which to file an appeal. Section 410.202(d). Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(e) (Rule 143.3(e)) provides that an appeal is presumed to have been timely filed if it is mailed not later than the 15th day after the date of receipt of the hearing officer’s decision and received by the Texas Workers' Compensation Commission (Commission) not later than the 20th day after the date of receipt of the hearing officer’s decision.

Commission records indicate that the hearing officer’s decision was mailed to the claimant on June 15, 2004. In her appeal, the claimant states that because June 20, 2004, was a Sunday, she was deemed to have received the hearing officer’s decision on Monday, June 21, 2004. However, the deemed date of receipt did not roll over to Monday as the claimant contends. Rule 102.3(b) states that “a working day is any day, Monday-Friday, other than a national holiday as defined by Texas Government Code, Section 662.003(a) and the Friday after Thanksgiving Day, December 24th and December 26th. Use in this title of the term ‘day,’ rather than ‘working day’ shall mean a calendar day.” Rule 102.5(d) states:

For purposes of determining the date of receipt for those written communications sent by the Commission which require the recipient to perform an action by a specific date after receipt, unless the great weight of the evidence indicates otherwise, the Commission shall deem the received date to be five days after the date mailed; the first working day after the date the written communication was placed in a carrier’s Austin representative box located at the Commission’s main office in Austin as indicated by the Commission’s date stamp; or the date faxed or electronically transmitted.

In accordance with Rule 102.3(b) the use of the term “day” in Rule 102.5(d) for the calculation of the deemed date of receipt after mailing as opposed to “working day” means that receipt is deemed five calendar days after mailing, or on June 20, 2004, in this instance. Based on the June 20, 2004, deemed date of receipt, the claimant’s appeal, had to be filed by Friday, July 9, 2004. The claimant's cross-appeal was mailed and faxed to the Commission on Monday, July 12, 2004, and is, therefore, untimely.

We find no merit in the carrier’s argument that the hearing officer erred in ordering contribution in the amount of 58%. The carrier contends that had the claimant’s 13% impairment rating (IR) for her ______________, injury been converted to a rating under 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 4th edition) it would have been a 10% rating in accordance with Diagnosis-Related Estimate (DRE) Lumbosacral Category III for radiculopathy. The claimant was awarded a 10% IR under DRE Lumbosacral Category III for the current compensable injury. Thus, the carrier contends that it should be entitled to 100% contribution because the IRs for both injuries would have been a 10% under the AMA Guides 4th edition. In its appeal, the carrier contends that “there was no basis for the Hearing Officer to find the carrier was only entitled to 50% impairment rating [sic], when faced with identical ratings for the exact same condition.” The carrier’s argument that there is no basis for the hearing officer’s decision to award 58% contribution is puzzling in light of the fact that the 58% contribution figure came from the report of Dr. S, the carrier’s peer review doctor, who recommended that percentage of contribution. Rather than converting the claimant’s 13% IR for her 1999 compensable injury, which was comprised of 7% for specific disorders and 6% for loss of lumbar range of motion, to a AMA Guides 4th edition rating as the carrier contends he should have done, Dr. S decided to determine the claimant’s IR for her current compensable injury under the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides 3rd edition) in order to make the comparison. Dr. S determined that the claimant would have been assigned a 13% rating for specific disorders under the AMA Guides 3rd edition for her current injury; thus, he recommended 58% contribution based on the comparison of the 7% specific disorder rating for the 1999 injury to the 13% rating she would have received had her 2001 compensable injury been rated under the AMA Guides 3rd edition. We find nothing in the 1989 Act or the Commission rules that prohibited Dr. S from converting the current IR to a AMA Guide 3rd edition rating rather than converting the IR for the 1999 compensable injury to a AMA Guides 4th edition rating. We believe that he had the discretion to do whichever he believed was most appropriate in order to make a meaningful comparison of the claimant’s IRs possible and to recommend a contribution percentage. The hearing officer herein awarded contribution in accordance with the evidence presented by the carrier on that issue. We simply cannot agree that he erred in doing so.

The hearing officer’s decision and order are affirmed.

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

CORPORATION SERVICE COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701.

Elaine M. Chaney
Appeals Judge

CONCUR:

Thomas A. Knapp
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 April 20, 2004. The hearing officer resolved the disputed issue by deciding that the respondent (carrier) is entitled to a reduction of the appellant’s (claimant) impairment income benefits (IIBs) based on contribution from an earlier compensable injury, and the percentage of contribution is 26%. The claimant appealed, disputing the determination. The carrier responded, urging affirmance.

DECISION

Affirmed.

The parties stipulated that the claimant had a prior compensable workers’ compensation injury on ______________, to her lower back for which she received a 5% impairment rating (IR) reaching maximum medical improvement (MMI) on November 5, 2001. Additionally, the parties stipulated that on November 21, 2001, the claimant sustained a compensable injury to her neck and low back for which she received a 19% IR reaching MMI on May 8, 2003. The IR for the November 21, 2001, injury, calculated using 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) consisted of a 15% rating based on Diagnosis-Related Estimate (DRE) Cervicothoracic Category III and a 5% rating based on DRE Lumbosacral Category II, combined for a total IR of 19%.

Whether there is a cumulative impact, and, if so, the amount of such cumulative impact, is a question of fact for the hearing officer to decide. Texas Workers' Compensation Commission Appeal No. 94578, decided June 22, 1994. It is well-settled that "[s]imply proving the occurrence of a previous compensable injury will not sustain the carrier's burden to prove the interaction of that injury with the current one on the present impairment." Texas Workers' Compensation Commission Appeal No. 971348, decided August 28, 1997. The consideration of the cumulative impact from prior injuries requires an assessment not only of the impairment from previous injuries, but also an analysis of how the injuries work together. Texas Workers' Compensation Commission Appeal No. 950268, decided April 10, 1995. This analysis includes considering the IRs from the prior compensable injuries and the present injury, and the components of the IRs. See Texas Workers' Compensation Commission Appeal No. 950735, decided June 22, 1995; Texas Workers' Compensation Commission Appeal No. 951019 decided August 4, 1995.

The carrier had the burden of proof on the contribution issue. The hearing officer 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 (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)). Having reviewed the record, we are satisfied that the challenged determinations of the hearing officer regarding the contribution issue are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Accordingly, the hearing officer’s determination that the carrier is entitled to a reduction of the claimant’s IIBs based on contribution from an earlier compensable injury, and that the percentage of contribution is 26%, is affirmed.

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Gary L. Kilgore
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 was held on March 23, 2004. The hearing officer determined that there should be zero reduction of the impairment income benefits and supplemental income benefits of respondent (claimant herein) based on contribution from earlier compensable injuries. Appellant self-insured (carrier herein) contends the hearing officer erred in determining that carrier is not entitled to contribution. Claimant responded that the Appeals Panel should affirm the hearing officer’s decision and order.

DECISION

We affirm.

We have reviewed the complained-of determinations and conclude that the issues involved fact questions for the hearing officer. The hearing officer reviewed the record and decided what facts were established. The hearing officer could determine that carrier did not meet its burden to prove that it was entitled to contribution in this case. 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).

We affirm the hearing officer’s decision and order.

According to information provided by carrier, 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

EXECUTIVE DIRECTOR

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Judy L. S. Barnes

CONCUR:

Elaine M. Chaney
Appeals Judge

Veronica L. Ruberto
Appeals Judge

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