Employer Reimbursement Archives

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 18, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) had disability from October 13 through November 8, 2011, but not from November 9 through November 16, 2011, and that the employer is entitled to reimbursement of wage supplementation made to the claimant pursuant to Section 408.003.

The claimant appealed the hearing officer’s reimbursement determination. The respondent (self-insured) responded, urging affirmance. The hearing officer’s determination that the claimant had disability from October 13 through November 8, 2011, but not from November 9 through November 16, 2011, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

Section 408.003(a)(2) provides that after an injury, an employer may, on the written request or agreement of the employee, supplement income benefits paid by the insurance carrier by an amount that does not exceed the amount computed by subtracting the amount of the income benefit payments from the employee’s net pre-injury wages.

Section 408.003(b) provides that if an injury is found to be compensable and an insurance carrier initiates compensation, the insurance carrier shall reimburse the employer for the amount of benefits paid by the employer to which the employee was entitled under this subtitle. Payments that are not reimbursed or reimbursable under this section may be reimbursed under Section 408.127.

The issue before the hearing officer as certified out of the benefit review conference and agreed to by the parties was worded as “[i]s the employer entitled to reimbursement of wage supplementation made to the claimant pursuant to [Section] 408.003?” In the Background Information section of the decision, the hearing officer stated:

At the hearing, the [self-insured] asserted that, pursuant to Section 408.003, the employer was entitled to reimbursement of wage supplementation made to the claimant. The [self-insured], however, presented no evidence that the wage supplementation was provided to by the [claimant], on the written request or agreement of the [claimant]. Because the [self-insured] failed to do so, the employer may not be reimbursed solely under Section 408.003.

The hearing officer is correct; the record contains no written request or evidence of an agreement of the claimant regarding wage supplementation. In order to establish entitlement to reimbursement, all of the provisions in Section 408.003 must be complied with fully. See Appeals Panel Decision (APD) 030257-s, decided March 19, 2003; APD 030258-s, decided March 19, 2003; APD 030259-s, decided March 19, 2003; and APD 070871-s, decided July 2, 2007.

However, the hearing officer also stated:

. . . Section 408.003 does reference Section 408.127 as an “alternate” way for the employer to be reimbursed for any wage supplementation. In other words, Section 408.003 incorporates Section 408.127 by reference.

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Because the Section 408.003 incorporates Section 408.127, the employer is entitled to reimbursement of wage supplementation made to the claimant pursuant to Section 408.003.

In Finding of Fact No. 7, appealed by the claimant, the hearing officer stated:

[Section] 408.003 incorporates Section 408.127 by reference. As a result, a carrier must reduce the claimant’s impairment income benefits [IIBs] by an amount equal to any wage supplementation that was paid by the employer. Those monies must then be used to reimburse the employer for the wage supplementation that was paid to the claimant.

Section 408.127(a) provides that an insurance carrier shall reduce IIBs to an employee by an amount equal to employer payments made under Section 408.003 that are not reimbursed or reimbursable under that section. The supplemental payment made by the self-insured in this case was not made under Section 408.003 because there was no evidence that the payments made by the employer were made at the written request or agreement of the claimant. To be a payment “made under Section 408.003” the payment must meet the criteria of Section 408.003. See APD 070871-s, supra, citing APD 94756, decided July 26, 1994. When payment was not made under Section 408.003, no requirement to reduce a claimant’s IIBs under Section 408.127 exists. See APD 94756, supra. We reverse Finding of Fact No. 7 as being legally incorrect, and we reverse the hearing officer’s determination that the employer is entitled to reimbursement of wage supplementation made to the claimant pursuant to Section 408.003, and render a new decision that the employer is not entitled to reimbursement of wage supplementation made to the claimant pursuant to Section 408.003 because there was no evidence that payments were made at the written request or agreement of the claimant.

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].

Carisa Space-Beam
Appeals Judge

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 May 27, 2004. The hearing officer determined that the respondent/cross-appellant (carrier herein) waived its right to contest compensability by not timely contesting compensability in accordance with Sections 409.021 and 409.022; that the appellant/cross-respondent (claimant herein) is barred from pursuing a workers’ compensation claim because of an election to receive benefits under his contract and collective bargaining agreement; that if the claimant were not barred from pursuing workers’ compensation benefits, he would have disability from August 27, 2003, through May 27, 2004; and that if the claimant were not barred from pursuing workers’ compensation benefits the carrier would be entitled to a credit against income benefits paid by the employer. The claimant appeals, contending that the hearing officer erred in determining that the claimant was barred from pursuing a workers’ compensation claim due to an election of remedies in light of his finding of carrier waiver and in finding that the carrier would be entitled to a credit if the claimant were not barred from receiving workers’ compensation benefits. There is no response from the carrier to the claimant’s request for review in the appeal file. The carrier does file a request for review in which it argues that the hearing officer erred in finding carrier waiver. The claimant responds that the same arguments made by the carrier regarding carrier waiver were made and rejected by the Appeals Panel in Texas Workers’ Compensation Commission Appeal No. 040347, decided April 1, 2004.

DECISION

Affirmed in part; reversed and rendered in part.

The claimant was a professional football player who was injured on ______________, playing in a preseason football game. On August 27, 2003, the employer terminated the claimant’s contract. The claimant filed a grievance for wrongful termination of his contract and the employer settled this grievance for $450,000.

The carrier received written notice of the injury on September 23, 2003, and disputed compensability on February 4, 2004.

The carrier makes the same argument in regard to election of remedies made by the carrier in Appeal No. 040347, supra. The carrier argues that somehow the election provided for under Section 406.095 is not subject to carrier waiver. We rejected this argument in Appeal No. 040347 and reject it for the same reasons in the present case. We affirm the hearing officer’s determination that the carrier waived the right to contest compensability.

However, as we made abundantly clear in Appeal No. 040347 and cases cited therein, a waiver of compensability is also a waiver of the affirmative defense of election of remedies. We note that a copy of our decision in Appeal No. 040347 was in evidence in the present case. Inexplicably, the hearing officer neither mentions nor follows Appeal No. 040347 in finding that the claimant is barred from pursuing workers’ compensation benefits because of an election of remedies. We reverse the hearing officer’s determination that the claimant is barred from pursuing workers’ compensation benefits and render a new decision that the claimant is entitled to these benefits.

The hearing officer finds that if the claimant were not barred by election of remedies from pursuing workers’ compensation benefits, he would have had disability from August 27, 2003, through May 27, 2004. Having reversed the hearing officer’s determination that the claimant was barred from pursuing workers’ compensation benefits, we render a decision based upon the hearing officer’s finding that the claimant had disability from August 27, 2003, through May 27, 2004. We order the carrier to pay all accrued unpaid income benefits with applicable interest.

Finally, the hearing officer, without stating any basis whatsoever for doing so, determined that the claimant’s settlement of his employment contract under his collective bargaining agreement entitled the carrier to a credit should the claimant not be barred from pursuing workers’ compensation benefits. Finding no basis for this determination, we reverse it and render a decision that the carrier is not entitled to a credit. See Texas Workers’ Compensation Commission Appeal No. 022707, decided December 10, 2002.^[1]

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

CT CORPORATION SYSTEMS

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75202.

Gary L. Kilgore
Appeals Judge

CONCUR:

Daniel R. Barry
Appeals Judge

Elaine M. Chaney
Appeals Judge

We note that our decision in Appeal No. 022707, although not addressed by the hearing officer in his decision, was also in evidence in the present case.

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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 December 16, 2002. The hearing officer resolved the disputed issue by determining that the appellant employer (self-insured herein) does not have the right to receive reimbursement under Section 408.003.

The self-insured appeals, contending that the hearing officer failed to properly interpret and apply Section 408.003 citing authority that it believes supports its position. The file did not contain a response from the respondent (claimant herein).

DECISION

Affirmed.

This case has two companion cases which were heard at the same time and while there are three cases, with three different claimants, three different dates of injury and different maximum medical improvement dates and impairment ratings (IR), the common thread was that all three claimants were city transit authority employees who sustained compensable injuries and were entitled to receive temporary income benefits (TIBs). In all three cases the claimants were afforded an election of receiving “Texas Workers’ Compensation benefits only,” which was explained to them as being 70% of their average weekly wage (AWW), or they could elect to receive the self-insured’s “Supplemental Pay in addition to Texas Workers’ Compensation benefits,” which was explained to the claimants as being 100% of the wages for a 40 hour week (overtime was not included). The claimants all, naturally enough, elected to receive 100% of their wages. However, Section 1 of Appendix “B” of the self-insured’s supplemental pay policy states:

All supplemental pay will be considered accelerated (or “advanced”) Workers’ Compensation, which will be credited toward any disability payments or other awards made by the Texas Workers' Compensation Commission [Commission]. The employee can elect to refuse the advanced Workers’ Compensation, in which case he/she will receive State required Workers’ Compensation only.

It is undisputed that the claimants were not told that “advances” on their TIBs would be “credited” against any impairment income benefits (IIBs) that they may eventually be entitled to. All of the claimants have an IR and now the self-insured seeks recoupment for the amounts paid over 70% of the claimants’ AWW out of IIBs.

The self-insured contends that it is a political subdivision under Section 504.001(3); that pursuant to Section 504.002, Section 408 applies; and that Section 408.003(a)(2) specifically provides that after an injury, an employer may:

(2)on the written request or agreement of the employee, supplement income benefits paid by the insurance carrier by an amount that does not exceed the amount computed by subtracting the amount of the income benefit payments from the employee’s net preinjury wages.

The self-insured contends that the agreement signed by the claimants is of the type contemplated by Section 408.003(a)(2); that the agreement was entered into voluntarily; and that the self-insured is entitled to recoupment pursuant to Section 408.003(b) and Section 408.127. Section 408.003(b) provides for reimbursement by the carrier to the employer for payment made to the employer. (In this case the employer and the carrier are one and the same). Section 408.003(b) concludes by stating: “Payments that are not reimbursed or reimbursable under this section may be reimbursed under Section 408.127.”

Section 408.127, entitled “Reduction of [IIBs]” provides:
(c)An insurance carrier shall reduce [IIBs] to an employee by an amount equal to employer payments made under Section 408.003 that are not reimbursed or reimbursable under that section.
(d)The insurance carrier shall remit the amount of a reduction under this section to the employer who made the payments.
(e)The commission shall adopt rules and forms to ensure the full reporting and the accuracy of reductions and reimbursements made under this section.

The self-insured contends that this statutory provision has been implemented in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.13(b)(3) (Rule 126.13(b)(3)), which provides:

(2)An employer who is entitled to reimbursement under subsection (b)(1) of this section but who paid more benefits to the employee than the carrier was required to pay in income benefits is entitled to be reimbursed for the difference if the employer initiated the benefits with the agreement of the employee and the agreement authorized the reimbursement of this difference. The difference is reimbursable out of [IIBs] that the employee becomes entitled to, if any.

The hearing officer, in her Statement of the Evidence, discusses Rule 129.1, which defines salary continuation and salary supplementation. The hearing officer found that the payments made to the claimants were “a form of salary supplementation.” The hearing officer then went on to discuss Rule 129.7(b), which provides that an “employer who pays an employee salary supplementation to supplement income benefits paid by the carrier is not entitled to and shall not seek reimbursement from the employee or the carrier.” The Appeals Panel has recognized in an earlier case the seeming conflict between Section 408.127 and Rule 129.7(b). See Texas Workers' Compensation Commission Appeal No. 021162-s, decided June 27, 2002. We view Rule 129.7(b) as bearing on the issue of reimbursement through post-injury earnings and not applicable to this case. See Preamble, Rule 129.2, 24 Tex. Reg 11426, December 17, 1999.

The hearing officer goes on to apply Section 408.003 and predicates her decision on Section 408.003(c), which provides:

(c)The employer shall notify the commission and the insurance carrier on forms prescribed by the commission of the initiation of and amount of payments made under this section.

The hearing officer comments that “there was no evidence provided to indicate that the Commission was notified on forms prescribed by the Commission of the initiation of and amount of payments made” to the claimants and determined that the self-insured was not entitled to reimbursement under Section 408.003.

In Texas Workers' Compensation Commission Appeal No. 951249, decided September 13, 1995, the Appeals Panel discussed a situation where an employer was seeking reimbursement under Section 408.003. In that case we discussed the provisions of Section 408.003 and concluded that the carrier should reimburse the employer “if the employer demonstrates compliance with Section 408.003.” We interpret this to mean compliance with all of Section 408.003, to include Section 408.003(c). The self-insured seems to dismiss the provision that the employer “shall” notify the Commission of the initiation of and amount of payments made, stating that “[t]o the extent [the self-insured] was obligated to report the same and failed to do so, this is a compliance matter that should be handled administratively by the Commission.” We disagree and note that Continental Casualty Company v. Downs, 81 S.W.3d 803 (Tex. 2002) has instructed that negating a statutory requirement by merely assessing an administrative violation is not an acceptable option.

Regarding the self-insured’s argument that the Texas Constitution forbids loans (“lending its credit or to grant public money”) unless it accomplishes a public purpose and the public purpose in this case was “by boosting employee moral and allaying employee fears of insufficient income in the event of an on-the-job injury,” we note that the self-insured raises this argument for the first time on appeal and it should have been raised with the hearing officer.

We conclude that the hearing officer did not misapply the 1989 Act and Commission rules and that her decision is supported by the evidence.

The hearing officer’s decision and order are affirmed.

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

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Thomas A. Knapp

CONCUR:

Edward Vilano
Appeals Judge

Roy L. Warren
Appeals Judge

DECISION

Affirmed.

(2)on the written request or agreement of the employee, supplement income benefits paid by the insurance carrier by an amount that does not exceed the amount computed by subtracting the amount of the income benefit payments from the employee’s net preinjury wages.

The self-insured contends that the agreement signed by the claimants is of the type contemplated by Section 408.003(a)(2); that the agreement was entered into voluntarily; and that the self-insured is entitled to recoupment pursuant to Section 408.003(b) and Section 408.127. Section 408.003(b) provides for reimbursement by the carrier to the employer for payment made to the employer. (In this case the employer and the carrier are one and the same). Section 408.003(b) concludes by stating: “Payments that are not reimbursed or reimbursable under this section may be reimbursed under Section 408.127.”

Section 408.127, entitled “Reduction of [IIBs]” provides:
(c)An insurance carrier shall reduce [IIBs] to an employee by an amount equal to employer payments made under Section 408.003 that are not reimbursed or reimbursable under that section.
(d)The insurance carrier shall remit the amount of a reduction under this section to the employer who made the payments.
(e)The commission shall adopt rules and forms to ensure the full reporting and the accuracy of reductions and reimbursements made under this section.

The self-insured contends that this statutory provision has been implemented in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.13(b)(3) (Rule 126.13(b)(3)), which provides:

(2)An employer who is entitled to reimbursement under subsection (b)(1) of this section but who paid more benefits to the employee than the carrier was required to pay in income benefits is entitled to be reimbursed for the difference if the employer initiated the benefits with the agreement of the employee and the agreement authorized the reimbursement of this difference. The difference is reimbursable out of [IIBs] that the employee becomes entitled to, if any.

The hearing officer, in her Statement of the Evidence, discusses Rule 129.1, which defines salary continuation and salary supplementation. The hearing officer found that the payments made to the claimants were “a form of salary supplementation.” The hearing officer then went on to discuss Rule 129.7(b), which provides that an “employer who pays an employee salary supplementation to supplement income benefits paid by the carrier is not entitled to and shall not seek reimbursement from the employee or the carrier.” The Appeals Panel has recognized in an earlier case the seeming conflict between Section 408.127 and Rule 129.7(b). See Texas Workers' Compensation Commission Appeal No. 021162-s, decided June 27, 2002. We view Rule 129.7(b) as bearing on the issue of reimbursement through post-injury earnings and not applicable to this case. See Preamble, Rule 129.2, 24 Tex. Reg 11426, December 17, 1999.

The hearing officer goes on to apply Section 408.003 and predicates her decision on Section 408.003(c), which provides:

(c)The employer shall notify the commission and the insurance carrier on forms prescribed by the commission of the initiation of and amount of payments made under this section.

We conclude that the hearing officer did not misapply the 1989 Act and Commission rules and that her decision is supported by the evidence.

The hearing officer’s decision and order are affirmed.

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

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Thomas A. Knapp

CONCUR:

Edward Vilano
Appeals Judge

Roy L. Warren
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 January 23, 2002, with the record closing on February 25, 2002. The appellant, who is the employer (subclaimant herein), was actively pursuing this claim for Texas workers’ compensation benefits as a subclaimant.

The hearing officer determined that (1) the claimant was an employee of the subclaimant under the 1989 Act; (2) the claimant sustained a compensable injury while working in Alabama; (3) the claimant was entitled to all rights and remedies under the 1989 Act; (4) the subclaimant timely filed notice of an injury in accordance with Section 409.005; (5) the claimant elected to pursue a remedy and recover compensation under the workers’ compensation laws of the State of Alabama, thereby barring recovery under the 1989 Act; and (6) due to the claimant’s election to pursue workers’ compensation benefits under the laws of another jurisdiction, the subclaimant is not entitled to reimbursement of compensation and medical payments from the respondent (carrier).

The subclaimant appealed the hearing officer’s determinations with regard to the claimant’s election of remedies and the subclaimant’s right to reimbursement of medical and compensation payments. The respondent (carrier) urges affirmance. The claimant did not file a response. The hearing officer’s determinations with regard to the remaining issues were not appealed and are, therefore, final. Section 410.169.

DECISION

Affirmed as reformed.

ELECTION TO PURSUE BENEFITS IN ALABAMA

The hearing officer did not err in determining that the claimant elected to pursue a remedy and recover compensation under the workers’ compensation laws of the State of Alabama, thereby barring recovery under the 1989 Act. Section 406.075 clearly provides as follows:

(a)An injured employee who elects to pursue the employee’s remedy under the workers’ compensation laws of another jurisdiction and who recovers benefits under those laws may not recover under this subtitle.
(a)The amount of benefits accepted under the laws of the other jurisdiction without an election under Subsection (a) shall be credited against the benefits that the employee would have received had the claim been made under this subtitle.

It is undisputed that the claimant received workers’ compensation benefits under the laws of the State of Alabama, where he was a resident. At issue is whether the claimant elected to pursue a remedy under the laws of that jurisdiction.

The evidence shows that the claimant was injured while working in Alabama. The claimant initially sought relief in Texas from the carrier, but the claim was denied by the carrier. Although the claimant stated that he “tried for two years to get the claim handled properly,” we see no evidence that the claimant prosecuted his claim for benefits within the hearings system of the Texas Workers’ Compensation Commission (Commission) or otherwise sought administrative recourse for the denial of Texas benefits.

Instead, the claimant hired an attorney in Alabama and prosecuted his claim under the workers’ compensation laws of that jurisdiction, resulting in a favorable decision by an Alabama court. The court specifically found in its judgment that the subclaimant had coverage through a policy with the carrier in this case. Notwithstanding, the claimant stated, “I felt that I did not have a choice where to file due to the fact that Texas has denied my claim and my statute of limitations was about to expire in Alabama . . . . I simply filed in Alabama because that was the last alternative that I had.” The hearing officer obviously did not credit any indication that the claimant was compelled to pursue the full range of his remedies in Alabama rather than Texas. Under the circumstances, the hearing officer, as sole judge of the weight and credibility of the evidence, could determine that the claimant “elects” to pursue compensation benefits in Alabama, as that term is used under Section 406.075(a). This determination is 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 (Tex. 1986).

The subclaimant asserts error in the hearing officer’s admission of the late- exchanged Carrier’s Exhibit Nos. 1 through 4. To obtain a reversal based on such an error, the subclaimant must show that not only was the admission of the evidence error but that the error was reasonably calculated to cause and probably did cause the rendition of an improper decision. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). Upon review of the exhibits, we do not find that to be so in this case.

REIMBURSEMENT

The policy of the carrier is in evidence. Frankly, it appears that endorsement WC 42 03 07, an “Other States Endorsement,” expressly states that the carrier will reimburse the subclaimant for amounts required to be paid as benefits in Alabama (which is not listed as one of the excluded states for this purpose). However, any laws or regulations of the Alabama workers’ compensation system that might govern reimbursement were left undeveloped in the record.

In any case, the hearings system of the Commission is not a general court of law with the jurisdiction to adjudicate contract liability. Our jurisdiction is limited to consideration of issues relating to Texas workers’ compensation benefits and any entitlement to reimbursement thereof. The hearing officer did not err in determining that the subclaimant is not entitled to reimbursement for workers’ compensation and medical payments from the carrier because he also found that no benefits were due under the laws of Texas. The subclaimant’s request for reimbursement is essentially a subrogation claim to those benefits. Because the claimant is barred from recovery under the1989 Act, we conclude that the subclaimant, likewise, is not entitled to recovery under the 1989 Act, as a matter of law. A question of whether the subclaimant is entitled to reimbursement of Alabama benefits remains a question for another jurisdiction.

Accordingly, we amend the conclusions of law and order sections of the hearing officer’s decision to read that the subclaimant is not entitled to reimbursement of any Texas workers’ compensation and medical benefits, as none are due. The decision and order of the hearing officer are affirmed with such modification, making clear that the general question of reimbursement of Alabama benefits is not and cannot be decided by the Commission’s hearing officer.

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

RUSSELL RAY OLIVER, PRESIDENT

221 W. 6TH STREET, SUITE 300

AUSTIN, TEXAS 78701.

Susan M. Kelley

CONCUR:

Elaine M. Chaney
Appeals Judge

Robert W. Potts
Appeals Judge

Following a contested case hearing held on August 31, 2000, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer resolved the disputed issues by determining that the appellant (employer) was not entitled to reimbursement of medical expenses from the respondent (carrier) under Section 408.003(e) of the 1989 Act. The hearing officer further determined that there is no authority under the 1989 Act or rules for reimbursement of the employer as a sub-claimant under Section 409.009 of the 1989 Act. The employer appealed both determinations. The carrier responded that the hearing officer’s decision should be affirmed.

DECISION

Affirmed in part, reversed and rendered in part.

The claimant, employer’s C.E.O., sustained a compensable injury on __________, when the small plane he was piloting on business crashed. On __________, the employer had actual notice of the injury, its severity, and the fact that it was sustained in the course and scope of employment. The employer immediately began providing the claimant with medical and transportation benefits, which, shortly thereafter, expanded into benefits for housing and day-to-day living expenses. The employer filed an Employer’s First Report of Injury or Illness (TWCC-1) with the carrier on February 16, 1999. The employer requested reimbursement for benefits paid to and for the claimant from the carrier on March 19, 1999, by filing an Employer’s Report for Reimbursement of Voluntary Payment (TWCC-2).

ENTITLEMENT TO REIMBURSEMENT UNDER

SECTION 408.003

The hearing officer’s determination that the employer is not entitled to reimbursement from the carrier under Section 408.003 is affirmed.

The employer seeks reimbursement from the carrier under Section 408.003 of the 1989 Act. That section states in part that:

After an injury, an employer may:

(1)initiate benefit payments, including medical benefits; or

(2)on the written request or agreement of the employee, supplement income benefits paid by the insurance carrier by an amount that does not exceed the amount computed by subtracting the amount of the income benefit payments from the employee’s net preinjury wages.

(b)If an injury is found to be compensable and an insurance carrier initiates compensation, the insurance carrier shall reimburse the employer for the amount of benefits paid by the employer to which the employee was entitled under this subtitle. Payments that are not reimbursed or reimbursable under this section may be reimbursed under Section 408.127.

(c)The employer shall notify the commission and the insurance carrier on forms prescribed by the commission of the initiation of and amount of payments made under this section.

(d)Employer payments made under this section:

(1)may not be construed as an admission of compensability; and

(2)do not affect the payment of benefits from another source.

(e)If an employer does not notify the insurance carrier of the injury in compliance with Section 409.005, the employer waives the right to reimbursement under this section . . . .

The employer did not give the carrier notice of the claimant’s injury within eight days, as required by Section 409.005(b) of the 1989 Act, and waived its right to reimbursement under Section 408.003.

ENTITLEMENT TO FILE A CLAIM AS SUB-CLAIMANT

UNDER SECTION 409.009

The hearing officer’s determination that there is no authority under the 1989 Act or rules for reimbursement of the employer as a sub-claimant under Section 409.009 of the 1989 Act is reversed and rendered.

Section 408.003(b) states that payments which are not reimbursed or reimbursable under that section may be reimbursed under Section 408.127. In this case, the employer has waived its rights to reimbursement under Section 408.003 by failing to give the carrier proper notice. Therefore, the payments made by the employer to, and on behalf of, the claimant are not reimbursable under Section 408.003.

The employer may file for reimbursement with the carrier in accordance with Section 408.127. Under Section 409.009, a person may file a claim with the commission as a sub-claimant to recover reimbursement for compensation if the person has provided compensation directly to or for an employee and has sought and been refused reimbursement from the carrier, in this case under Section 408.003.

We affirm the hearing officer’s decision that the employer is not entitled to reimbursement from the carrier under Section 408.003 and reverse the hearing officer’s decision that there is no authority under the 1989 Act or rules for reimbursement as a sub-claimant under Section 409.009 of the 1989 Act and render a new decision that the employer has standing under Section 409.009 of the 1989 Act as a sub-claimant to seek reimbursement under Section 408.127.

Kenneth A. Huchton
Appeals Judge

Concur:

Elaine M. Chaney
Appeals Judge

Robert W. Potts
Appeals Judge