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 14, 2021, with the record closing on April 29, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to a lumbar spine strain, right shoulder sprain, and left shoulder sprain; (2) the compensable injury of (date of injury), does not extend to right shoulder impingement syndrome or tear of right supraspinatus tendon; (3) the appellant (claimant) reached maximum medical improvement (MMI) on March 18, 2019; (4) the claimant’s impairment rating (IR) is 6%; (5) the claimant did not have disability from March 28, 2019, through August 13, 2020; and (6) the claimant did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, so the claimant is not entitled to temporary income benefits (TIBs) from March 28, 2019, through August 13, 2020.

The claimant appealed the ALJ’s extent-of-injury determination that was adverse to him, as well as the ALJ’s MMI, IR, and disability determinations. The claimant also appealed the ALJ’s determination that he did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, and is not entitled to TIBs from March 28, 2019, through August 13, 2020. The respondent (carrier) responded, urging affirmance of the appealed determinations. The ALJ’s determination that the compensable injury of (date of injury), extends to a lumbar spine strain, right shoulder sprain, and left shoulder sprain was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the carrier has accepted bilateral shoulder strains as the compensable injury; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. A) as designated doctor for purposes of extent of injury, MMI, IR, disability, and return to work; and the statutory MMI date is December 25, 2020. The claimant testified he was injured on (date of injury), while lifting a basket weighing between 50 and 70 pounds from one rack to a higher rack.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence.  Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.—Houston [14th Dist.] 1984, no writ).  As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).  

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to right shoulder impingement syndrome or tear of right supraspinatus tendon is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from March 28, 2019, through August 13, 2020, is supported by sufficient evidence and is affirmed.

FAILURE TO SUBMIT TO DESIGNATED DOCTOR’S EXAMINATION

The ALJ’s determination that the claimant did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, and the claimant is not entitled to TIBs from March 28, 2019, through August 13, 2020, is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on March 18, 2019, is supported by sufficient evidence and is affirmed.

IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.  

The ALJ found the preponderance of the other medical evidence is contrary to the certification of Dr. A, the designated doctor. This finding is supported by the evidence, which is further discussed below. The ALJ then found the evidence supported the certification of (Dr. L), the post-designated doctor required medical examination doctor, and determined that the claimant’s IR is 6% based on Dr. L’s certification.

Dr. L initially examined the claimant on November 10, 2020, and issued alternate certifications. In one of his certifications Dr. L opined that the claimant had not reached MMI but was expected to do so February 10, 2021, based upon a left shoulder strain/sprain, right shoulder strain/sprain, lumbar strain, right shoulder impingement syndrome, and tear of the right supraspinatus tendon. In his other certification Dr. L certified the claimant reached MMI on March 18, 2019, with a 6% IR based on a left shoulder strain and right shoulder strain. We note that neither of these certifications considers and rates the entire compensable injury in this case, which is bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain.

Dr. L then examined the claimant on April 7, 2021, and again certified the claimant reached MMI on March 18, 2019, with a 6% IR. Dr. L based this certification on bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain. We note that although Dr. L acknowledged the compensable injury included a lumbar spine strain, he did not specifically discuss an IR for that condition. It is this certification that was adopted by the ALJ.

Dr. L stated in his report that he used the range of motion (ROM) measurements from Dr. A’s August 13, 2020, examination to determine the IR because “this was the first evaluation that documented the bilateral shoulder planes of motion,” and assessed the same IR as Dr. A.  We note that Dr. A’s August 13, 2020, report contains two sets of ROM measurements for the right shoulder, one for “TODAY(’s)” date of August 13, 2020, and the second for December 3, 2018. Dr. A’s report contains one set of ROM measurements for the claimant’s left shoulder with no date specified. Dr. A stated in his report that the claimant’s right shoulder examination “was limited due to recent surgery” and his right shoulder movement was “severely restricted,” and we note those ROM measurements do not correspond with the impairments Dr. A assessed for the right shoulder. Dr. A did not identify in his report where the December 3, 2018, ROM measurements were taken.

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) (AMA Guides), Dr. L assigned a 6% IR based on the bilateral shoulder ROM measurements noted in Dr. A’s examination by combining 2% whole person impairment (WPI) for the left shoulder with 4% WPI for the right shoulder. Specifically, Dr. L used Figure 38 on page 3/43, Figure 41 on page 3/44, Figure 44 on page 3/45, and Table 3 on page 3/20 of the AMA Guides.

Using Dr. A’s ROM measurements listed for the right shoulder, Dr. L assigned 2% upper extremity (UE) impairment for flexion; 1% UE impairment for extension; 1% UE impairment for abduction; and 2% UE impairment for internal rotation. We note the ROM measurements listed in Dr. A’s and Dr. L’s reports for right shoulder adduction and external rotation both result in 0% impairment. Dr. L stated that these figures add to “7% (UE) impairment,” which, using Table 3 on page 3/20, “converts to a 4% WPI rating.”  Adding the impairments for right shoulder flexion, extension, abduction, and internal rotation results in 6% UE impairment, not 7%. We note Dr. A’s report contains this same error. However, Table 3 provides that both 6% UE impairment and 7% UE impairment convert to 4% WPI.

Using Dr. A’s ROM measurements listed for the claimant’s left shoulder, Dr. L assigned 2% UE impairment for flexion and 2% UE impairment for adduction.^[1] Dr. L noted the remaining left shoulder planes “were full.” Dr. L stated these impairments add to 4% UE impairment, which converts to 2% WPI.  Dr. A’s August 13, 2020, report lists the claimant’s left shoulder ROM as 65° of internal rotation, for which both he and Dr. L assessed 0% impairment. However, Figure 44 on page 3/45 of the AMA Guides provides that 65° of internal rotation results in either 2% UE impairment or 1% UE impairment depending on how 65° internal rotation is rounded, not 0% UE impairment.  

The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR.  See Appeals Panel Decision (APD) 171766, decided September 7, 2017; APD 152464, decided February 17, 2016; APD 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011.  Because there are questions regarding how to round the ROM measurements, which require medical judgment, a mathematical correction would not be appropriate in this case.  Dr. L’s IR cannot be adopted.  

There are numerous other certifications in evidence. As discussed above, Dr. L initially examined the claimant on November 10, 2020, and issued alternate certifications. In one of his certifications Dr. L opined that the claimant had not reached MMI but was expected to do so February 10, 2021. Given that we have affirmed the ALJ’s determination that the claimant reached MMI on March 18, 2019, this certification cannot be adopted. In his other certification Dr. L certified the claimant reached MMI on March 18, 2019, with a 6% IR based on a left shoulder strain and right shoulder strain. However, because this IR contains the same error as explained above, and because this IR does not consider and rate the compensable injury of bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain, this IR cannot be adopted.

The other certifications in evidence are from Dr. A, the designated doctor. Dr. A initially examined the claimant on August 13, 2020, and issued three certifications. In the first certification Dr. A certified the claimant reached MMI on March 28, 2019, with a 6% IR. We note Dr. A’s 6% IR contains the same error as discussed above for Dr. L’s 6% IR. In the second and third certifications Dr. A opined the claimant had not reached MMI but was expected to do so on December 15, 2020, based on various disputed conditions. Because we have affirmed the ALJ’s determination that the claimant reached MMI on March 18, 2019, these certifications cannot be adopted.

Dr. A also examined the claimant on January 7, 2021, and again issued three certifications. In all three of these certifications Dr. A certified the claimant reached MMI on December 25, 2020, with a 20% IR based on various accepted and disputed conditions. Dr. A also provided three additional certifications in response to a letter of clarification sent to him by the ALJ on January 28, 2021, all of which certified the claimant reached MMI on December 25, 2020, with a 15% IR. Because these certifications are not based on the affirmed MMI date of March 18, 2019, they cannot be adopted.

There is no IR in evidence that can be adopted. Therefore, we reverse the ALJ’s determination that the claimant’s IR is 6%, and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to right shoulder impingement syndrome or tear of right supraspinatus tendon.

We affirm the ALJ’s determination that the claimant did not have disability from March 28, 2019, through August 13, 2020.

We affirm the ALJ’s determination that the claimant did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, and the claimant is not entitled to TIBs from March 28, 2019, through August 13, 2020.

We affirm the ALJ’s determination that the claimant reached MMI on March 18, 2019.

We reverse the ALJ’s determination that the claimant’s IR is 6%, and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. A is the designated doctor in this case. On remand the ALJ is to determine whether Dr. A is still qualified and available to be the designated doctor.  If Dr. A is still qualified and available to be the designated doctor, the ALJ is to inform Dr. A that the compensable injury in this case is bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain and that the date of MMI is March 18, 2019. The ALJ is to notify Dr. A of his error in calculating 7% UE impairment for the claimant’s right shoulder, and in calculating 0% impairment for 65° of internal rotation for the claimant’s left shoulder. As previously noted, Dr. A’s August 13, 2020, report contains two sets of ROM measurements for the claimant’s right shoulder with different dates. The ALJ is to ask Dr. A to clarify which ROM measurements he is using to assess the claimant’s IR, the date those measurements were taken, and where those measurements were obtained. The ALJ is to request Dr. A to rate the entire compensable injury as of the MMI date of March 18, 2019, considering the medical records, the certifying examination, and rating criteria in the AMA Guides.

If Dr. A is no longer qualified or available, then another designated doctor is to be appointed to determine the claimant’s IR.  The ALJ is to inform the designated doctor that the compensable injury in this case is bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain and that the date of MMI is March 18, 2019.  The ALJ is to request the designated doctor to rate the entire compensable injury in accordance with Rule 130.1(c)(3) based on the claimant’s condition as of the MMI date of March 18, 2019, considering the medical records, the certifying examination, and rating criteria in the AMA Guides.  

The parties are to be provided with the ALJ’s letter of clarification to Dr. A or Presiding Officer’s Directive to Order Designated Doctor Examination if another designated doctor is assigned, as well as the designated doctor’s report.  The ALJ is to give the parties an opportunity to respond prior to closing the record and issuing a decision.  

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.  See APD 060721, decided June 12, 2006.

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

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note that Dr. A states in his report he assigned 2% UE impairment for abduction, not adduction as specified by Dr. L.  Dr. A assigned 0% UE impairment for adduction.  We view Dr. L’s use of adduction versus abduction as a typographical error.  ↑

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 8, 2015, in El Paso, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) did have disability from December 2, 2014, and continuing through September 28, 2015; (2) the claimant reached maximum medical improvement (MMI) on December 1, 2014; (3) the claimant’s impairment rating (IR) is nine percent; and (4) the respondent (carrier) is entitled to reduce the claimant’s impairment income benefits (IIBs) to recoup the previous overpayment of $2,112.86. The claimant appealed, disputing the hearing officer’s determinations of MMI, IR, and recoupment.  The claimant contends that the certification from (Dr. B), the doctor selected to act in place of the treating doctor is the correct certification of MMI/IR. Additionally, the claimant agrees in his appeal that the carrier overpaid him but contends he is still owed $242.86. The carrier responded, urging affirmance of the determinations disputed by the claimant.

The hearing officer’s determination that the claimant did have disability from December 2, 2014, and continuing through September 28, 2015, was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

The parties stipulated that on (date of injury), the claimant sustained a compensable injury in the form of a concussion, lung contusion, laceration to the face, nasal fracture, fractures to the ribs, right arm fracture, and right knee sprain. The claimant testified that he was injured in a motor vehicle accident.

RECOUPMENT

The hearing officer’s determination that the carrier is entitled to reduce the claimant’s IIBs to recoup the previous overpayment of $2,112.86 is supported by sufficient evidence and is affirmed.

MMI/IR

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.”  Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  28 TEX. ADMIN. CODE § 130.1(c)(3) (Rule 130.1(c)(3)) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

The parties stipulated that the Division-selected designated doctor was (Dr. M) and that Dr. M certified that the claimant reached MMI on December 1, 2014, with a nine percent IR. Dr. M examined the claimant on December 1, 2014. Dr. M assessed nine percent impairment 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) for loss of range of motion of the right upper and lower extremities. Dr. M was subsequently sent a letter of clarification to ensure that all of the claimant’s injuries which had been accepted had been considered and rated. Dr. M responded to the letter of clarification noting that the claimant was examined for all his injuries and that there is no further or additional impairment, so no change is needed on the Report of Medical Evaluation (DWC-69).

In her discussion of the evidence the hearing officer stated in part the following: [g]iven the totality of the evidence, the preponderance of the evidence is not contrary to the designated doctor’s certification of [MMI] and [IR]. The hearing officer determined in Conclusion of Law No. 4 that the claimant reached MMI on December 1, 2014. The hearing officer determined in Conclusion of Law No. 5 that the claimant’s IR is nine percent. These determinations are reflected in the hearing officer’s decision. However, in Finding of Fact No. 4, the hearing officer mistakenly stated that the December 1, 2014, date of MMI and nine percent IR certified by the designated doctor is not supported by the preponderance of the evidence. We reform Finding of Fact No. 4 to conform to the hearing officer’s discussion of the evidence, the evidence in the record, conclusions of law, and decision. Finding of Fact No. 4 is reformed as follows: the December 1, 2014, date of MMI and nine percent IR is not contrary to the preponderance of the other medical evidence.

SUMMARY

We affirm the hearing officer’s determination that the carrier is entitled to reduce the claimant’s IIBs to recoup the previous overpayment of $2,112.86.

We affirm the hearing officer’s determination that the claimant reached MMI on December 1, 2014.

We affirm the hearing officer’s determination that the claimant’s IR is nine percent.

We affirm Finding of Fact No. 4 as reformed.

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

CORPORATION SERVICE COMPANY

d/b/a CSC-LAWYERS INCORPORATING SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 28, 2014, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the respondent (carrier) is entitled to reduce the appellant’s (claimant) impairment income benefits (IIBs) to recoup the previous overpayment of $2,699.48.^[1] The claimant appealed, disputing the hearing officer’s determination that the carrier is entitled to reduce IIBs to recoup the previous overpayment of $2,699.48. The claimant contends that the carrier did not meet his burden to prove that an overpayment exists and violated 28 TEX. ADMIN. CODE § 126.16 (Rule 126.16). The carrier responded, urging affirmance of the disputed determination.

DECISION

Reversed and remanded.

The parties stipulated that on [date of injury], the claimant sustained a compensable injury. The evidence reflects that the carrier initially made a reasonable assessment of the claimant’s average weekly wage (AWW) and began the payment of benefits. Subsequently, an Employer’s Wage Statement (DWC-3) was received by the carrier and the AWW was recalculated at a lower amount than that initially assessed. Additionally, in evidence was a Benefit Dispute Agreement (DWC-24) dated November 13, 2013, in which the parties agreed that the AWW was $735.86. The carrier alleges that it has overpaid the claimant benefits based on a recalculation of the AWW. It is undisputed that deductions were made from the claimant’s benefits for attorney’s fees, child support, and repayment of an approved advance order.

Rule 126.16(b)(1) provides in part that if an insurance carrier determines that it has overpaid income benefits to an injured employee, the insurance carrier may recoup the overpayment from future income benefit payments as follows: the insurance carrier must notify the injured employee in writing that it will begin withholding benefits to recoup an overpayment. The notice must also include the reason for the overpayment; the amount of the overpayment to be recouped from future income benefit payments; the date recoupment will begin; and relevant documentation that supports the insurance carrier’s determination of an overpayment, such as a wage statement or a supplemental report of injury.

In Finding of Fact No. 5, the hearing officer found that the claimant was paid $18,320.69 in benefits when only $15,621.21 was owed in benefits resulting in an overpayment of $2,699.48. In evidence is a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) dated November 17, 2012. The PLN-11 states the carrier has identified an overpayment in benefits in the amount of $2,699.48 and identified the amount of benefits owed to date as $15,621.21 and the amount actually paid as $18,320.69. The amounts included in the PLN-11 dated November 17, 2012, are not based on the AWW agreed to by the parties because the agreement of the AWW was not reached until November 13, 2013. The hearing officer did not consider the DWC-24 dated November 13, 2013, entered into by the parties regarding the AWW to determine the disputed recoupment issue. Accordingly, we reverse the hearing officer’s determination that the carrier is entitled to reduce the claimant’s IIBs to recoup the previous overpayment of $2,699.48 and remand this issue to the hearing officer for further action consistent with this decision.

On remand the hearing officer is to make a finding of the AWW that should be used to determine the overpayment made by the carrier, if any, and identify the calculations and relevant time periods utilized to arrive at the amount determined to be overpaid, if any.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.  See APD 060721, decided June 12, 2006.

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

CORPORATION SERVICE COMPANY

d/b/a CSC-LAWYERS INCORPORATING SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

1. We note that the issue initially before the hearing officer was: Is the carrier entitled to reduce the claimant’s IIBs to recoup the previous overpayment of $2,130.15? The hearing officer revised the issue to reflect a different dollar amount, $2,699.48, because she determined that amount was actually litigated.

   ↑

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, 2012, on November 28, 2012, with the record closing on December 5, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the disputed issues, the hearing officer determined that the respondent (claimant) had disability from August 3, 2010, through April 3, 2012, and that “[t]here was no overpayment in the amount of $40,969.00 in [temporary income benefits (TIBs)]; and a [CCH] is not the proper forum to determine if an administrative violation with regard to Section 415.008 [of the 1989 Act] has occurred.”

The appellant (carrier) appealed, contending that the claimant did not have disability and that there was an overpayment of TIBs in the amount of $40,969.00. The claimant responded, urging affirmance.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated that the claimant sustained a compensable injury on [date of injury], and that the claimant’s average weekly wage (AWW) is at least $1,165.00.

The claimant testified that on [date of injury], some panels shifted hitting him on the head and injuring his left shoulder. The evidence reflects that the claimant had left shoulder arthroscopy surgery on January 7, 2011, and a second left shoulder surgery to repair a labrum tear on December 2, 2011. The claimant is seeking disability from August 3, 2010, when he was taken off work until April 3, 2012, when his treating doctor returned him to work full duty.

DISABILITY

The hearing officer’s determination that the claimant had disability from August 3, 2010, through April 3, 2012, is supported by sufficient evidence and is affirmed.

SECTION 415.008

We affirm that portion of the hearing officer’s determination that a CCH is not the proper forum to determine if an administrative violation with regard to Section 415.008 of the 1989 Act has occurred. See Appeals Panel Decision (APD) 020432-s, decided April 10, 2002; and APD 93610, decided September 7, 1993.

SUSPENSION OF TIBS TO RECOUP A PREVIOUS OVERPAYMENT OF $40,969.00

It is undisputed that the claimant began a self-employment enterprise called [RGL] on May 1, 2009. The claimant is the president and the sole owner of RGL. The evidence submitted indicates that RGL had no income or earnings in 2009 or 2010 and first began generating income in 2011. Based on his $1,165.00 AWW, as noted above, the claimant began receiving maximum TIBs in the amount of $773.00 a week beginning August 3, 2010. It is undisputed, based on documents in evidence, that the claimant began receiving some income through RGL beginning in March 2011. In APD 012074-s, decided October 24, 2001, the Appeals Panel held that self-employment income qualifies as wages. 28 TEX. ADMIN. CODE § 129.4(d) (Rule 129.4(d)) provides that if the employee is no longer employed by the employer, the employee is responsible to provide information to the insurance carrier about the existence or amount of any earnings. Evidence was presented at the CCH reflecting that the claimant had unreported earnings from self-employment during some weeks that he was also paid maximum TIBs.

Section 408.103(a)(1) provides in relevant part that the amount of TIBs is equal to 70% of the amount computed “by subtracting the employee’s weekly earnings after the injury from the employee’s [AWW].” Rule 129.2(b) defines “[l]ost wages” as the “difference between the employee’s gross [AWW] and the employee’s gross [p]ost-[i]njury [e]arnings (PIE).” Rule 129.2(c) provides, in pertinent part, that PIE shall include “(1) all pecuniary wages paid to the employee after the date of injury including wages based on work performed while on modified duty. . . .” It is undisputed that the claimant received 53 weeks (August 3, 2010, through August 8, 2011), of maximum TIBs at the rate of $773.00 for a total of $40,969.00. It is also undisputed that the claimant did not report any income or earnings to the carrier.

Based on the documents and evidence (Claimant’s Exhibit No. 30, pages 2 and 3), the hearing officer in the Background Information section of the decision identified that: “1. From March 22, 2011, through March 28, 2011 [the] [c]laimant’s business received $500.00; 2. From May 3, 2011, through May 9, 2011 [the] [c]laimant’s business received $745.00; and 3. From July 19, 2011, through July 25, 2011 [the] [c]laimant’s business received $1,150.00.”

Claimant’s Exhibit No. 31, page 2, entitled Partial TIBs Calculations, shows net PIE of $18.17 for the month of February 2011; $491.00 for the month of March 2011; $684.00 for the month of May 2011; $356.05 for the month of June 2011, and $1,050.76 for the month of July 2011. This exhibit also admits overpayments of $155.49 for March 2011, $290.59 for May 2011, $67.09 for June 2011, and $547.32 for July 2011. The hearing officer, in the Background Information calculated that during the week of March 22, 2011, the claimant’s PIE equaled $491.00, and subtracting that from the claimant’s AWW of $1,165.00 equals $674.00. During the week of May 3, 2011, through May 9, 2011, the claimant’s PIE equaled $684.00, and subtracting that from $1,165.00 equals $481.00. During the week of July 19, 2011, through July 25, 2011, the claimant’s PIE equaled $1,050.76 and subtracting that from $1,165.00 equals $114.24.

The hearing officer, in the Background Information, comments that pursuant to Rule 129.2(a) once TIBs accrue an injured employee is entitled to TIBs to compensate the employee for lost wages due to the compensable injury during a period which the employee has disability and has not reached maximum medical improvement. The hearing officer referenced Rule 129.2(b) which provides that “lost wages” are the difference between the employee’s gross AWW and the employee’s gross PIE. If the employee’s PIE equals or exceeds the employee’s AWW the employee has no lost wages. The hearing officer goes on to comment that in determining PIE, the carrier shall base its calculations on specific wage information reported by the employer and/or the employee. Rule 129.3(d) provides that the carrier shall calculate the employee’s lost wages by subtracting the PIE from the AWW (or AWW - PIE). Rule 129.3(e) provides that the amount of TIBs an employee is entitled to is based on the lost wages. If the employee’s PIE equals or exceeds the employee’s AWW, the employee has no lost wages and the carrier shall not pay TIBs. In this case, there is no evidence that during any of the weeks in question that the claimant’s PIE equaled or exceeded the claimant’s AWW.

The carrier contends that it is entitled to recoup the entire amount of $40,969.00 because the claimant had failed to report any of the PIE that he received through his company, RGL. The hearing officer correctly notes that a CCH is not the proper forum to determine fraudulent intent based upon Section 415.008. See APD 020432-s, supra and APD 93610, supra. However, the hearing officer failed to make findings of fact and conclusions of law regarding any overpayments based on PIE the claimant had received during the period that he was receiving full TIBs payments.

We reverse the hearing officer’s determination that there was no overpayment in the amount of $40,969.00 in TIBs and we remand the issue to the hearing officer for further consideration consistent with this decision and to make findings of fact and conclusions of law regarding any overpayments that the carrier may have made to the claimant while the claimant was receiving TIBs during the period of August 3, 2010, through August 8, 2011. The hearing officer is also to make findings of fact and conclusions of law regarding whether the carrier is entitled to suspend TIBs to recoup any overpayment found.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

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

RON O. WRIGHT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Thomas A. Knapp
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 19, 2011, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the two disputed issues, the hearing officer determined that the date of maximum medical improvement (MMI) is September 5, 2007, and that the appellant/cross-respondent (carrier) “is not entitled to suspend the [respondent/cross-appellant’s (claimant)] [impairment income benefits (IIBs)] to offset the previous overpayment of approximately $5,559.30.”

The carrier appealed, contending that it should be allowed to recharacterize temporary income benefits (TIBs) paid after the MMI date as IIBs. The claimant responded to the carrier’s appeal, contending that the carrier has no statutory authority for recoupment of an overpayment of TIBs. The claimant also cross-appealed, contending that she received medical treatment after the September 5, 2007, the date of MMI certified by the designated doctor and therefore, she should have a later MMI date of June 10, 2009, as certified by another doctor. The carrier responded to the claimant’s cross-appeal asserting the MMI date certified by the designated doctor had presumptive weight and urged affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that the claimant sustained a compensable injury on ______________, that Dr. M, was the Texas Department of Insurance, Division of Workers’ Compensation (Division)-appointed designated doctor to determine MMI, impairment rating (IR) and ability to return to work; and that the claimant has a five percent IR as assigned by Dr. M, the designated doctor, and Dr. F, a referral doctor acting in the place of the treating doctor.

MMI DATE

The hearing officer’s determination that the date of MMI is September 5, 2007, as certified by the designated doctor, Dr. M, is supported by sufficient evidence and is affirmed.

OVERPAYMENT OF TIBS

As previously noted, the parties stipulated that the claimant sustained a compensable injury on ______________. The carrier alleges that it continued to pay TIBs from the date of injury through March 23, 2008. Dr. M had originally certified MMI on September 5, 2007. The carrier now seeks to “redesignate those post-MMI TIBs [TIBs paid after the September 5, 2007, MMI date] as IIBs.”

The hearing officer in her Background Information, commented:

Appeals Panel Decision (APD) 033358-s, decided February 18, 2004, noted that prior to the effective date of 28 TEX. ADMIN. CODE [§] 128.1(e) (Rule 128.1(e)), most of the APD’s concerning recoupment decided on equitable principles and acknowledged that much of the prior precedent on recoupment has been superseded. There is no contention that Rule 128.1(e)(2), which specifically provides for recoupment in situations when [average weekly wage (AWW)] is miscalculated, is applicable.

. . . Carrier has not cited any rule or persuasive authority to allow recoupment of an overpayment in this case. Carrier’s argument is based on equity and is not persuasive.

APD 033358-s, supra, cited by the hearing officer is a situation where a self-insured sought to reduce the injured worker’s IIBs to zero to recoup its overpayment of income benefits under Rule 128.1, which deals with a situation where the claimant’s AWW is different than what was previously determined, and if the carrier finds that it has overpaid benefits to a claimant a recoupment of the overpayment may be made under certain conditions in Rule 128.1(e)(2)(A) through (C). As the carrier argues in this case, this is not a recoupment situation but rather a recharacterization or redesignation of TIBs already paid as IIBs.

The hearing officer, in the Background Information states that the carrier has not cited any rule or persuasive authority to allow “recoupment” of an overpayment. The carrier cites APD 94872, decided August 17, 1994, which is directly on point. In that case the Appeals Panel commented “that all income benefits paid to the claimant after he reached MMI . . . are [IIBs].” The authority for that proposition is found in Sections 408.101(a); 408.102(a); 408.121(a); and Rule 130.8(a).

Section 408.101(a) provides that an employee is entitled to TIBs if the employee has a disability and has not attained MMI. Section 408.102(a) provides that TIBs continue until the employee reaches MMI. Section 408.121(a) provides “[a]n employee’s entitlement to [IIBs] begins on the day after the date the employee reaches [MMI] . . . .” Rule 130.8(a) provides that “[IIBs] accrue on the day after the injured employee reaches [MMI], regardless of whether the employee has suffered seven or more days of disability.” Applying the cited statutes and rule we hold, pursuant to Section 408.121(a), that the claimant, in this case, became entitled to IIBs on September 6, 2007, the day after the claimant reached MMI, by operation of law. Under the specific facts of this case, and the principle cited in APD 94872, supra, where the carrier has paid TIBs to the claimant after what is later determined to be the MMI date, the TIBs payments made after the MMI date are redesignated as IIBs, and the carrier can take credit as IIBs those income benefits it paid to the claimant as TIBs after the MMI date, which in this case was September 5, 2007.

The issue at the CCH is inartfully worded because there will be no suspension of the claimant’s IIBs to offset a previous overpayment. Rather, the parties actually litigated the issue of whether the income benefits paid after the date of MMI could be redesignated as IIBs rather than TIBs. We reverse the hearing officer’s determination that the carrier is not entitled to suspend the claimant’s IIBs to offset the previous overpayment of approximately $5,559.30. We render a new decision that the carrier is entitled, under the facts of this case, to redesignate a payment of TIBs after September 5, 2007, as IIBs by operation of law.

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.

Thomas A. Knapp

CONCUR:

Cynthia A. Brown
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 June 3, 2010. The issues before the hearing officer to be decided were:

1. (1)What is the average weekly wage (AWW)?

2. (2)Did the respondent (claimant) have disability from November 7, 2009, through March 29, 2010, resulting from an injury sustained on ____________?

3. (3)Is the appellant (carrier) entitled to reduce and/or suspend the claimant’s impairment income benefits (IIBs) to recoup previous overpayment of temporary income benefits (TIBs), and if so, in what amount?

The hearing officer determined that:

1. (1)The claimant’s AWW is $1,762.64;

2. (2)The claimant did not have disability from November 7, 2009, through March 29, 2010, resulting from an injury sustained on ____________; and

3. (3)The carrier is entitled to suspend the claimant’s IIBs to recoup its previous overpayment of TIBs in the amount of $10,352.69.

The carrier appealed the hearing officer’s AWW determination, contending that the hearing officer erred in her calculation of AWW based upon multiple employment. The appeal file does not contain a response by the claimant. The hearing officer’s disability determination was not appealed and has become final pursuant to Section 410.169. The hearing officer’s determination that the carrier is entitled to suspend the claimant’s IIBs to recoup its previous overpayment of TIBs in the amount of $10,352.69 was not 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 ____________, while at work for the claim employer.

AWW

In the Background Information section of her decision, the hearing officer stated that:

The [c]laimant proved that her [AWW] is $1,762.64 based on documentary evidence showing she worked for two employers as a nurse for at least [13] weeks preceding ____________, the date she was injured while in the course and scope of employment for [the claim employer]. The [c]laimant’s wages for [the claim employer] totaled $10,681.42 and for the [non-claim employer] totaled $12,232.87.

The claimant asserted that her AWW should include income from her concurrent employment with the non-claim employer and the hearing officer calculated the claimant’s AWW based upon adding together the wages for the claim and non-claim employers. The hearing officer erred in her calculation of AWW as a matter of law. The claimant failed to comply with Section 408.042(d) and 28 TEX. ADMIN. CODE § 128.1(h) (Rule 128.1(h)) amended effective May 16, 2002, and Rule 122.5, effective May 16, 2002.

Section 408.042(d) provides that the commissioner shall:

1. (1)prescribe a form to collect information regarding the wages of employees with multiple employment; and

2. (2)by rule, determine the manner by which the [Texas Department of Insurance, Division of Workers’ Compensation (Division)] collects and distributes wage information to implement this section.

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

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

* * * *

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

Rule 122.5, effective May 16, 2002, states in pertinent part:

(b)For an injury which occurs on or after July 1, 2002, a claimant may file a Multiple Employment Wage Statement for each employer the employee was working for on the date of injury.

(c)If a claimant who is permitted by subsection (b) of this section chooses to file a Multiple Employment Wage Statement, it is the claimant’s responsibility to obtain the required wage information from the Non-Claim Employer(s), providing any necessary corrections to the wage information, and filing the information on the Multiple Employment Wage Statement with the insurance carrier and [Division]. The carrier is not required to make an adjustment to AWW until the employee provides a complete Multiple Employment Wage Statement as described in subsections (d) and (e) of this section.

(d)The Multiple Employment Wage Statement shall include:

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

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

3. (3)the date of injury;

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

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

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

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

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

There is no Multiple Employment Wage Statement filed by the claimant in evidence. The sole documentary evidence submitted by the claimant are copies of her check stubs from the non-claim employer, which do not contain the required information under Rule 122.5(d)(2), (3), (4), and (7). The claimant’s evidence does not comply with the statutory requirements to document and verify wage payments subject to Section 408.042 and Rule 122.5. The hearing officer should have calculated the AWW based solely on the wages of the claim employer. See Appeals Panel Decision 100497, decided July 1, 2010.

In evidence is the wage statement for the claim employer showing that the claimant earned $10,681.42 in wages for the 13 weeks preceding the date of injury. $10,681.42 divided by 13 results is $821.65. Accordingly, we reverse the hearing officer’s determination that the claimant’s AWW is $1,762.64 and we render a new decision that the claimant’s AWW is $821.65.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3232.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 27, 2008. The hearing officer resolved the disputed issues by deciding that the first certification of maximum medical improvement (MMI) and impairment rating (IR) assigned by Dr. G on September 27, 2007, did not become final under Section 408.123 and that the appellant (carrier) is not entitled to reduce the respondent’s (claimant) impairment income benefits (IIBs) to recoup the previous overpayment of $272.58.

The carrier appealed, disputing the hearing officer’s determination that the first certification of MMI and assigned IR by Dr. G on September 27, 2007, did not become final. The claimant responded, urging affirmance. The hearing officer’s determination that the carrier is not entitled to reduce the claimant’s IIBs to recoup the previous overpayment of $272.58 was not 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 ___________, in the form of injury to his bilateral wrists and a right shoulder rotator cuff tear. It was undisputed that Dr. G was the first doctor to certify MMI and assign an IR and that his certification was valid according to 28 TEX. ADMIN. CODE § 130.12(c) (Rule 130.12(c)). The hearing officer’s finding that Dr. G’s IR was provided to the claimant by verifiable means on November 21, 2007, was not appealed.

Section 408.123(e) provides that except as otherwise provided by Section 408.123, an employee’s first valid certification of MMI and first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means. Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means; that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute a certification of MMI or an IR assignment, or both. Section 408.123(f) provides in part that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described in Subsection (e) if: (1) compelling medical evidence exists of: (B) a clearly mistaken diagnosis or a previously undiagnosed medical condition.

It is undisputed that the claimant did not dispute the first certification of MMI and assigned IR within 90 days of its receipt by verifiable means. The claimant argued that the first certification of MMI and assigned IR should not become final because there is compelling medical evidence of a clearly mistaken diagnosis or a previously undiagnosed medical condition. The evidence reflects that the claimant underwent surgery for a right rotator cuff tear on November 3, 2006. The operative report reflects one of the indications for the procedure was an MRI “which showed a tear with retraction.” Dr. G examined the claimant on September 27, 2007, and certified on a DWC-69 that the claimant had reached MMI on that date and assigned an IR of eight percent based on loss of range of motion of the right shoulder and no impairment for the bilateral wrists. Dr. G diagnosed a rotator cuff tear and noted that the claimant had surgery. The claimant was examined by a referral doctor on January 11, 2008, who noted the claimant had chronic postoperative right shoulder pain with severe mobility deficits and weakness. The referral doctor noted that the claimant had major surgery for a full thickness tear, which failed after initial reconditioning. The referral doctor recommended a subacromial injection. The same referral doctor in correspondence dated February 28, 2008, noted that he had been informed that an MRI, performed January 28, 2008, demonstrated a large full thickness rotator cuff tear, presenting the necessity for reoperation. The claimant’s treating doctor performed a second operation to the right rotator cuff on April 30, 2008. In a report dated July 17, 2008, the treating doctor noted that he tried to do “a salvage operation” and was prepared to use a graft, however, there was no tendon available to even graft to “the tuberosity.” He noted that the resulting surgery was a debridement of the rotator cuff tear and reattachment of his deltoid.

The hearing officer found that compelling medical evidence exists of a clearly mistaken diagnosis or a previously undiagnosed medical condition that would render the certification or assignment invalid. In her discussion of the evidence, the hearing officer notes that the claimant’s treating doctor found that the first rotator cuff repair failed and aborted the second repair because there was no cuff present for reattachment. The record clearly indicates that the claimant was diagnosed with a right rotator cuff tear in 2006. His treating doctor noted that an MRI of his right shoulder was performed on August 10, 2006, which showed a full thickness rotator cuff tear with 2 cm of retraction and, as previously noted, surgery to repair the right rotator cuff tear was performed on November 3, 2006. Although the records indicate the claimant had ongoing problems with his shoulder and underwent a subsequent surgery for his right rotator cuff tear, it does not indicate that the claimant was misdiagnosed or had a medical condition that was undiagnosed. The hearing officer’s decision that the first certification of MMI and assigned IR from Dr. G did not become final under Section 408.123 is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust because compelling medical evidence does not exist of a clearly mistaken diagnosis or previously undiagnosed medical condition under the exception to finality in Section 408.123(f)(1)(B).

Accordingly, we reverse the hearing officer’s determination that the first certification of MMI and assigned IR from Dr. G did not become final under Section 408.123 and render a new decision that the first certification of MMI and assigned IR from Dr. G did become final under Section 408.123 because there is no compelling medical evidence under Section 408.123(f)(1)(B) of a clearly mistaken diagnosis or previously undiagnosed medical condition.

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

MR. RUSSELL RAY OLIVER, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 15, 2008. The disputed issues at the CCH were: (1) is the appellant (carrier) entitled to suspend the respondent’s (claimant) income benefits to recoup the previous overpayment; and (2) what is the average weekly wage (AWW). The hearing officer determined that the claimant’s AWW for temporary income benefits (TIBs) is $282.15; that the claimant’s AWW for impairment income benefits (IIBs) is $293.44; and that the carrier is not entitled to suspend the claimant’s income benefits to “recoup the overpayment.”

The carrier appeals, noting a clerical error and asserting that the hearing officer erred in her methodology in calculating the AWW for IIBs, contending that it should be $81.00 by applying 28 TEX. ADMIN. CODE § 128.7(e) (Rule 128.7(e)). The carrier also asserts that it is entitled to recoup a $5,518.68 overpayment. The claimant responds, urging affirmance and noting that she had provided wage information from other employers for whom she had worked in the 12 months immediately preceding the injury in accordance with Rule 128.7(e)(2). The hearing officer’s determination that the claimant’s AWW for TIBs is $282.15 has not been appealed.

DECISION

Reformed and reversed and remanded.

The carrier notes that there are two Findings of Fact No. 5. Clearly the second Finding of Fact No. 5 should in fact be Finding of Fact No. 7. We reform the hearing officer’s decision to consecutively number the Findings of Fact 1 through 7.

The parties stipulated that on ____________, the claimant was an employee of the employer, a school district, and sustained a compensable injury. It is undisputed that the claimant was hired as a custodian by the school district on January 31, 2005. It is also undisputed that the claimant earned $1,692.92 in wages from the school district prior to her injury on ____________. There is evidence that the claimant had been employed by several other employers during 2004 prior to her employment by the school district on January 31, 2005. In evidence were 2004 Form W-2-Wage and Tax Statements (W-2) from the claimant’s other employers in 2004 as well as the claimant’s 2004 1040 U.S. Individual Income Tax Return (2004 tax return) and an amended 2004 tax return.

The methodology for calculating the AWW for IIBs for school district employees injured on or after December 1, 2001, is set out in Section 408.0446 and Rule 128.7. The pertinent portions of Section 408.0446 providing for the calculation of the AWW for IIBs state:

(c)For determining the amount of [IIBs] . . . of a school district employee under Chapter 504, the [AWW] of the employee is computed by dividing the total amount of wages earned by the employee during the 12 months immediately preceding the date of the injury by 50.

1. (d)If the commissioner determines that computing the [AWW] of a school district employee as provided by this section is impractical because the employee did not earn wages during the 12 months immediately preceding the date of the injury, the commissioner shall compute the [AWW] in a manner that is fair and just to both parties.

The pertinent portion of Rule 128.7 providing for the calculation of the AWW for IIBs for school district employees states:

1. (d)For determining the amount of [IIBs] . . . the AWW shall be computed in accordance with this subsection using only pecuniary wages.

2. (1)The carrier shall add together the total wages earned by the school district employee during the 12 months immediately preceding the injury and dividing the result by 50 weeks.

3. (2)If the school district employee provides wage information from other employers for whom the employee worked in the 12 months immediately preceding the injury, these wages shall be included in the calculation of the AWW. Note that for injuries on or after July 1, 2002, the effect of wages from a Non-Claim Employer (as the term is defined in §122.5 of this title (relating to Employee’s Multiple Employment Wage Statement)) on the employee’s AWW is governed by §128.1(h)(2) of this title (relating to [AWW]: General Provisions).

The hearing officer summarized the methodologies used by the parties regarding AWW for IIBs and commented:

I find that neither method suggested by the parties is the most accurate reflection of Claimant’s AWW for IIBs. Based on a fair and reasonable method, I have multiplied Claimant’s average earnings for the six weeks of $282.15 by 52 to find annual expected earnings totaling $14,671.80. Dividing this by 50 as required by Rule 128.7(e), I find Claimant’s AWW for IIBs is 293.44.

We hold that the hearing officer erred in using a “fair and reasonable method” in calculating a school district employee’s AWW to determine the amount of IIBs because the only provision for using a “fair and just” method is in Section 408.0446(d) and it provides for computing the AWW using a fair and just method if it is determined by the commissioner that computing the AWW as provided by Section 408.0446 “is impractical because the employee did not earn wages during the 12 months immediately preceding the date of the injury.”^[1] In this case, the claimant proved she earned wages during the 12 months preceding the date of injury.

The carrier contends that while the claimant offered tax documents (W-2 forms and the 2004 tax returns) from several employers during the year 2004, “there was no way for the [carrier] or the Hearing Officer to determine the wages earned for the 12 months preceding the injury.” The carrier goes on to contend that Rule 128.7(e)(2) “would only apply if the Claimant had earned wages from the non-claim employer(s) for the 12 months preceding the injury and was employed by the non-claim employer at the time of the injury.” (Emphasis in the original.) We disagree. We read Rule 128.7(e)(2) to have two parts. First, the rule states that if the school district employee provides wage information from other employers for whom the employee worked in the 12 months immediately preceding the injury, these wages shall be included in the calculation of the AWW. This provision does not require that the “other employers” be non-claim employers and that the claimant still be employed with them at the time of the injury. The second part of Rule 128.7(e)(2) has a “note” which deals with non-claim employers as defined by Rule 122.5 and provides that the effect of wages from a non-claim employer on the employee’s AWW is governed by Rule 128.1(h)(2).^[2] We also refer to Section 408.0446(c) which provides that for determining the amount of IIBs for a school district employee the AWW “is computed by dividing the total amount of wages earned by the employee during the 12 months immediately preceding the date of the injury by 50.” That provision is consistent with Rule 128.7(e)(1) and (2). We note that the Texas Supreme Court stated in Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958 (Tex. 1999) that “we liberally construe workers’ compensation legislation to carry out its evident purpose of compensating injured workers and their dependents.”

The claimant has submitted wage information from other employers for whom the claimant worked for the entire year of 2004. The hearing officer did not apply the correct provision of Section 408.0446. We reverse the hearing officer’s determination that the claimant’s AWW for IIBs is $293.44 and remand the case for a determination of the AWW for IIBs based on the total wages the claimant earned in the 12 months immediately preceding the date of the injury (i.e. from _________, through ________), divided by 50 weeks, in accordance with Section 408.0446(c) and Rule 128.7(e). Because the AWW for IIBs has been reversed and remanded, and has not been determined, we also remand the case to the hearing officer on the issue of whether the carrier is entitled to suspend the claimant’s income benefits to recoup a previous overpayment.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is (INSURANCE CARRIER) and the name and address of its registered agent for service of process is

MS

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Thomas A. Knapp

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

1. Rule 128.7(f) provides that “[i]n the event the school district employee and/or carrier believes that the AWW computed based on the calculations in this rule does not reflect the true AWW, the employee and carrier may enter into a written agreement regarding the AWW or request a benefit review conference.”

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2. Rule 122.5(a) defines “Non-Claim Employers” as employers other than the claim employer by whom the employee was employed at the time of the on-the-job injury.

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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 4, 2007. The disputed issue was: “Is the self-insured entitled to suspend the claimant's income benefits to recoup the previous overpayment of $2091.18?” The hearing officer resolved the disputed issue by deciding that the respondent (self-insured) may recoup its overpayment of indemnity benefits at a rate of 100% for the final four weeks of impairment income benefits (IIBs). The appellant (claimant) appealed, disputing the recoupment determination. The self-insured responded, urging affirmance.

DECISION

Reversed and remanded.

The parties stipulated that the claimant sustained a compensable injury on ____________. The evidence reflects that the claimant elected to take accrued sick and annual leave for time lost from work due to the compensable injury before receiving workers’ compensation benefits pursuant to Section 501.044. The self-insured argued at the CCH that there was an overpayment due to two different factors. First, the self-insured contends that it was not aware that the claimant elected to use her sick and annual leave and for a period of time the claimant was paid leave from her employer and receiving temporary income benefits (TIBs) from the self-insured at the same time. Second, the self-insured contends that it was misinformed as to whether or not the claimant was provided health insurance by her employer sometime after the date of injury and as a result, the self-insured paid TIBs “at a higher rate,” resulting in an overpayment.

Section 501.044(a), applicable to state employees, provides that if an employee elects to use sick leave, the employee is not entitled to income benefits until the employee has exhausted the employee’s accrued sick leave. Section 501.044(b) provides in part that if an employee elects to use annual leave, the employee is not entitled to income benefits until the elected number of weeks of leave have been exhausted. The claimant acknowledged that she received pay from her employer at the same time she received TIBs from the self-insured. However, the claimant testified that when she returned to work her pay was reduced by her employer because the employer stated she was mistakenly paid for hours of leave she did not have. The claimant’s paychecks for January and June of 2006 are in evidence and reflect the claimant’s pay was docked for a substantial number of hours. The claimant testified that her docked pay for these months represented the hours mistakenly paid by her employer for leave she did not have. The record is not clear regarding whether or not the claimant actually received pay for leave she did have at the same time she received TIBs. A Benefit Review Conference (BRC) agreement regarding some of the dates of the claimant’s disability was entered into evidence at the CCH, however, it was not included in the appeal file. The dates of disability not addressed by the BRC agreement were not stipulated to by the parties nor did the hearing officer make a finding of fact regarding these time periods. The hearing officer noted in his discussion that the parties do not dispute the amounts due and the amounts paid. However, the claimant contended that the employer docked her pay for the leave she did not have and therefore no overpayment of TIBs was made. The claimant argues in her appeal that “[a]s it stands, [she] has had both her salary and her IIBs reduced to recoup the accrued leave her employer paid to her.” The evidence indicates that the claimant was certified to have reached maximum medical improvement (MMI) on February 6, 2006, by her treating doctor, with a 1% impairment rating (IR). Further, the evidence indicates that the claimant was subsequently examined by a designated doctor who certified MMI on May 23, 2006, with a 3% IR. It was undisputed that the self-insured had paid IIBs based on the 1% rating and subsequently paid a portion of the IIBs represented by the 3% IR assessed by the designated doctor. The hearing officer noted in his discussion that the self-insured paid two weeks of IIBs and suspended the payment of the remaining four weeks of IIBs based on an audit that showed the claimant had been overpaid.

We note that the 1989 Act contains specific provisions that allow for recoupment or reimbursement which include the following: Section 415.008, concerning fraudulently obtaining or denying benefits (although a benefit CCH under Chapter 410 of the 1989 Act is not the proper forum to determine an administrative violation, see Appeals Panel Decision (APD) 060318, decided April 12, 2006); Section 408.003, concerning reimbursement of benefit payments either initiated or supplemented by an employer, versus a self-insured; and Section 410.209, which allows reimbursement to the self-insured of benefit payments, via the subsequent injury fund, made pursuant to a Division order which is reversed or modified.  None of the aforementioned sections are applicable to this theory of recoupment advanced by the self-insured.

APD 033358-s, decided February 18, 2004, noted that prior to the effective date of TEX. ADMIN. CODE §128.1(e) (Rule 128.1(e)), most of the APD’s concerning recoupment were decided on equitable principles and acknowledged that much of the prior precedent on recoupment has been superceded. There is no contention that Rule 128.1(e)(2), which specifically provides for recoupment in situations when the AWW is miscalculated, is applicable to the self-insured’s first theory of recoupment argued by the self-insured in the instant case. Rule 128.1(e) will be discussed below regarding the second theory of recoupment advanced by the self-insured. The legislature has in certain sections described the circumstances under which some types of recoupment, reimbursement, or reduction of future benefits can be made. When the legislature has carefully employed a term in one section of a statute, and has excluded it in another, it should not be implied where excluded. See Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1980). No statutory provision or rule was cited as authority for recoupment based on the fact the self-insured may have mistakenly paid income benefits during the time period the employer was paying the claimant for accrued leave, nor have we found one. Therefore, recoupment is not authorized for such mistakenly paid income benefits.

The second theory advanced by the self-insured for recoupment is that the self-insured was misinformed by the employer that it no longer provided the claimant with health insurance and therefore paid TIBs in an amount greater than that owed. The self-insured contends that it overpaid TIBs but that the overpayment was not due to a miscalculation of the AWW. We disagree. Whether or not the AWW was incorrectly calculated due to the inclusion or exclusion of health insurance premiums paid by the employer would affect the amount of the AWW not the rate at which TIBs are calculated. See APD 060272-s, decided April 6, 2006.

Rule 128.1(e) provides in part that if a carrier determines or is notified that the employee’s AWW is different than what the carrier had previously determined, the self-insured shall adjust the AWW. Rule 128.1(e)(2)(A) provides that if as a result of the change in the AWW, the carrier has overpaid benefits to the claimant, and the claimant’s benefits are not concurrently being reduced to pay approved attorney’s fees, the self-insured may recoup the overpayment in an amount not to exceed 25% of the benefits the claimant is entitled to based upon the new AWW. Rule 128.1(e)(2)(B) provides that if as a result of the change in the AWW, the carrier has overpaid benefits to the claimant and the claimant’s benefits are concurrently being reduced to pay approved attorney’s fees, the self-insured may recoup the overpayment in an amount not to exceed 10% of the benefits the claimant is entitled to based upon the new AWW. Rule 128.1(e)(2)(C) provides that the self-insured may request to recoup the overpayment in an amount greater than provided by Rule 128.1(e) and discusses the factors to be considered if such a request is approved. The hearing officer noted in his discussion that any rate lesser than 100% would result in a lower likelihood of the overpayment being recouped and that the 100% rate of recoupment would not be a financial hardship on the claimant.

We reverse the hearing officer’s decision that the self-insured may recoup its overpayment of indemnity benefits at a rate of 100% and remand back to the hearing officer. On remand the hearing officer should: (1) include the BRC agreement admitted into evidence as part of the record; (2) determine whether TIBs were overpaid due to a miscalculation of AWW based on the employer’s contribution for health insurance premiums; (3) determine the amount of overpayment due to the miscalculation of the AWW, if any; and (4) determine the rate of recoupment, if an overpayment is found, under Rule 128.1(e)(2).

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 92642, decided January 20, 1993.

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

For service in person the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR

AUSTIN, TEXAS 78701.

For service by mail the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 5, 2006. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) did not sustain disability from November 30, 2000, through February 13, 2001; that the claimant’s impairment rating (IR) is 30% as certified by the treating doctor; and that the respondent (carrier) is entitled to recoup an overpayment from claimant’s temporary income benefits (TIBs) and impairment income benefits (IIBs). The claimant appealed, disputing the determinations of disability, IR and recoupment. The carrier responded, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that the claimant sustained a compensable injury on August 3, 1999; that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed Dr. S as the designated doctor; that the claimant reached maximum medical improvement (MMI) on February 13, 2001, as certified by both the designated doctor and the treating doctor; and that the claimant’s average weekly wage (AWW) is $591.26. The claimant testified that he was exposed to a toxic chemical while in the course and scope of his employment as a truck driver. The claimant sustained an inhalation and chemical exposure injury.

DISABILITY

There is sufficient evidence to support the hearing officer’s determination regarding disability.

IR

Three certifications of IR were in evidence. The treating doctor in a Report of Medical Evaluation (DWC-69) and narrative dated February 13, 2001, assessed a 30% IR using the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides), placing the claimant in Class 3, respiratory impairment under Table 8, page 117. There were two certifications of IR from the designated doctor, Dr. S. The initial certification by Dr. S was a 50% IR.

A review of the record reflects that neither the DWC-69 nor the accompanying narrative report which certified the 50% IR were signed by Dr. S. The reporting requirements of 28 TEX. ADMIN. CODE § 130.1(d)(1) (Rule 130.1(d)(1)) provide that certification of MMI and assigning IR for the current compensable injury requires “completion, signing and submission of the [DWC-69] and a narrative report.” Rule 130.1(d)(1)(A) states that the DWC-69 “must be signed by the certifying doctor.” That rule goes on to state the signature may be “a rubber stamp signature or an electronic facsimile signature.” See Appeals Panel Decision (APD) 042044-s, decided October 8, 2004, APD 061017, decided July 14, 2006, and APD 931106, decided January 11, 1994. Further, Dr. S noted in his narrative that the assignment of a 50% IR was pending a more recent pulmonary test showing valid reliable effort.

Dr. S provided an amended certification dated March 3, 2003, certifying the claimant’s IR is 25%. However, there is evidence in the record that Dr. S was taken off of the approved designated doctor list on February 25, 2002, and therefore was no longer qualified as a designated doctor at the time he amended the IR to 25%.

For CCH’s which are held on or after September 1, 2005, Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. Rule 130.6(i) provides that the designated doctor’s response to a Division request for clarification is considered to have presumptive weight as it is part of the doctor’s opinion.

The treating doctor certified that the claimant reached MMI on February 13, 2001, with a 30% IR. There is sufficient evidence to support the hearing officer’s determination that the claimant’s IR is 30%.

RECOUPMENT

The hearing officer determined that the carrier is entitled to recoup an overpayment from claimant’s TIBs and IIBs. The carrier, in its response, contends the claimant did not appeal the specific finding of fact or conclusion of law regarding recoupment, but acknowledged the claimant “seems to address the issue in his appeal.” The claimant in his appeal contends the carrier is not entitled to recoupment. This is sufficient to appeal the recoupment issue. Based on the carrier’s position regarding the periods of disability the claimant was entitled to and IIBs based on an IR of 30%, the carrier contended it overpaid the claimant both TIBs and IIBs in the amount of $16,154.51. The hearing officer noted that there was no interlocutory order for payment of benefits or dispute concerning the claimant’s AWW, or contribution.

The 1989 Act contains specific provisions that allow for recoupment or reimbursement which include the following: Section 415.008, concerning fraudulently obtaining or denying benefits (although a benefit CCH under Chapter 410 of the 1989 Act is not the proper forum to determine an administrative violation, see APD 060318, decided April 12, 2006); Section 408.003, concerning reimbursement of benefit payments either initiated or supplemented by an employer, versus a carrier; and Section 410.209, which allows reimbursement to the carrier of benefit payments, via the subsequent injury fund, made pursuant to a Division order which is reversed or modified. None of the aforementioned sections are applicable to the facts of this case.

APD 033358-s, decided February 18, 2004, noted that prior to the effective date of Rule 128.1(e) that most of the Appeals Panel decisions concerning recoupment were decided on equitable principles and acknowledged that much of the prior precedent on recoupment has been superceded. There is no contention that Rule 128.1(e)(2) which specifically provides for recoupment in situations when the AWW is miscalculated is applicable to the instant case. The legislature has in certain sections described the circumstances under which some types of recoupment, reimbursement, or reduction of future benefits can be made. When the legislature has carefully employed a term in one section of a statute, and has excluded it in another, it should not be implied where excluded. See Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1980). No statutory provision or rule was cited as authority for recoupment under the facts as presented in this case, nor have we found one. The hearing officer’s determination that the carrier is entitled to recoup an overpayment from claimant’s TIBs and IIBs is reversed and a new decision rendered that the carrier is not entitled to recoup an overpayment from claimant’s TIBs and IIBs.

We affirm the hearing officer’s determinations that the claimant did not sustain disability from November 30, 2000, through February 13, 2001; and that the claimant’s IR is 30% as certified by the treating doctor.

We reverse the hearing officer’s determination that the carrier is entitled to recoup an overpayment from claimant’s TIBs and IIBs and render a new decision that the carrier is not entitled to recoup an overpayment from claimant’s TIBs and IIBs.

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

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723-1098.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge