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 31, 2005. The hearing officer resolved the disputed issues by deciding that there was an overpayment of temporary income benefits (TIBs) from October 22, 2004, through March 17, 2005, in the amount of $5,487.39; and that the appellant (carrier) is not entitled to reduce the respondent’s (claimant) TIBs and impairment income benefits (IIBs) to recoup a previous overpayment. The carrier appealed, arguing that the hearing officer’s determination that the carrier could not recoup the TIBs overpayment was error. The carrier also appealed the amount of overpayment determined by the hearing officer and asked that the finding that the claimant sustained a compensable repetitive trauma injury on ___, be stricken as unnecessary to the hearing officer’s decision and beyond the issues certified. The appeal file does not contain a response from the claimant.

DECISION

Affirmed in part and reversed and rendered in part.

The issues of compensable injury and disability had been determined at a prior CCH. The hearing officer in the prior CCH determined that the claimant sustained a compensable injury on ___, and had disability from May 11 to May 13, 2004; June 1 to June 3, 2004; August 26 to November 17, 2004; and December 16, 2004, to February 14, 2005 (the date of that CCH). The hearing officer’s determination was appealed but the hearing officer’s decision became final. Both parties represented that these issues are currently pending in district court. Due to the pending district court action, the carrier declined to stipulate at the CCH that the claimant sustained a compensable injury. The carrier requests on appeal that the hearing officer’s finding that the claimant sustained a compensable repetitive trauma injury on ___, be stricken as unnecessary or beyond the issues certified. Section 410.205(b) provides that the decision of the Appeals Panel regarding benefits is binding during the pendency of judicial review. The hearing officer did not err by making a finding that the claimant sustained a compensable injury.

Section 408.103(a) provides that subject to the maximum and minimum weekly benefit amounts, TIBs are equal to 70% of the amount computed by subtracting the employee’s weekly earnings after the injury from the employee’s average weekly wage (AWW). We note that the parties did not stipulate regarding the AWW, nor was any evidence presented regarding the amount of the AWW. The hearing officer noted in her discussion that the carrier calculated the claimant’s TIBs to be $420.65 based on the AWW rate of $600.93. Further, the hearing officer noted that there was no contention or evidence that the computation of the AWW was erroneous. The hearing officer used the TIBs rate of $420.65 and the AWW of $600.93 in her calculations of an overpayment. There is no contention on appeal that the rates applied were incorrect.

The evidence reflected that the claimant quit working for the employer on August 26, 2004. 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, or any offers of employment. Evidence was presented at the CCH that reflected the claimant had earnings from other employers from October 23, 2004, through March 17, 2005. There was some evidence that the claimant’s earnings extended beyond March 17, 2005, but those time periods were not at issue at the CCH. There is sufficient evidence to support the determination that an overpayment of TIBs was made during the time period at issue. During argument at the CCH, the carrier alleged that the overpayment of TIBs from October 22, 2004, through March 17, 2005, was $5,487.39. However, no specific calculations were presented at the CCH except for the representation at the CCH by the carrier’s attorney that the carrier paid a total of $7,140.00 during the period in dispute when only $1,652.61 should have been paid, resulting in an overpayment of $5,487.39. This representation by the carrier differs from the amount in evidence. Correspondence dated June 1, 2005, indicates that the carrier paid $7,090.94 for the time period at issue. The hearing officer examined the evidence and calculated whether or not an overpayment had been made for each week the claimant was shown to have earnings during the period in dispute. The hearing officer calculated the overpayment of TIBs to be $5,714.32, but found the amount of the overpayment to be $5,487.39 stating she deferred to the carrier’s requested amount of overpayment. On appeal, the carrier argues the amount of overpayment should be that calculated by the hearing officer since it has been held that strict pleading requirements do not apply to these proceedings, citing Appeals Panel Decision (APD) 91123, decided February 7, 1992. We agree with the carrier’s contention that strict pleading requirements do not apply. However, the hearing officer’s calculations considered 4 weeks in which the claimant had earnings but for which disability was not found as a result of the prior CCH. During these weeks, TIBs should not have been paid at all and the evidence reflects that for 4 weeks during the period at issue, the carrier did not pay TIBs. It was error for the hearing officer to consider these weeks in determining the amount of overpayment. The actual amount of overpayment excluding the 4 weeks in which there was no disability and TIBs were not paid, is $4,795.14. This calculation is based on 10 weeks in the disputed period in which the claimant’s earnings exceeded the amount of the AWW, therefore causing the overpayment to be the entire TIBs rate of $420.65 (the weeks of 10/30/04; 12/18/04; 01/21/05; 01/28/05; 02/04/05; 02/11/05; 02/18/05; 02/26/05; 03/04/05; and 03/11/05). Additionally there are 3 weeks in which the carrier overpaid TIBs because it was not aware of the claimant’s post-injury earnings ($303.83 for the week of 10/23/04; $60.84 for the week of 11/06/04; and $223.98 for the week of 11/13/04). We reverse the hearing officer’s determination that the amount of the overpayment is $5,487.39 and render a determination that the amount of the overpayment is $4,795.14.

The carrier additionally appeals the determination that it is not entitled to reduce the claimant’s TIBs and IIBs to recoup a previous overpayment. The carrier cites Section 415.008 for statutory authority which allows recoupment under the facts presented. Section 415.008(a) provides that a person commits a violation if the person to obtain or deny a payment of a workers’ compensation benefit or the provision of a benefit for the person or another, knowingly or intentionally makes a false or misleading statement; misrepresents or conceals a material fact; fabricates, alters, conceals or destroys a document; or conspires to commit one of these acts. Section 415.008(c) provides that a person who has obtained an excess payment in violation of this section is liable for full repayment plus interest, and that if the person is an employee or person claiming death benefits, the repayment may be redeemed from future income or death benefits to which the person is otherwise entitled. Section 415.008(b) provides that a violation under this section is a Class B administrative violation. Section 415.031 provides for the initiation of administrative violation proceedings; Section 415.032 provides for the investigation of the violation and notice of the charge and right to request a hearing; and Section 415.034 provides that the hearing shall be conducted in the manner provided for a contested case under the Administrative Procedure Act (APA). The APA does not apply to CCHs with the exception of the enforcement of subpoena provision. Section 410.153, Rule 142.1. Consequently, a CCH is not the proper forum to determine an administrative violation. See APD 93610, decided September 7, 1993, and APD 031781, decided August 26, 2003.

The carrier contends that it was not requesting that the hearing officer determine the claimant committed an administrative violation but was only requesting that the hearing officer determine the carrier is allowed to adjust the claimant’s benefits due to the overpayment. The carrier argues that the hearing officer has authority to make any findings of facts necessary to a determination of the amount of benefits a claimant may be due. The carrier cites APD 040425, decided April 9, 2004, as a case that recognizes “equitable” recoupment. However, in that case the Appeals Panel affirmed the hearing officer’s decision that the carrier is not entitled to reduce the claimant’s income benefits to recoup the previous overpayment. In that case the overpayment was a result of the carrier’s misapplication of the TIBs rate, using 75% rather than 70%. The carrier additionally cites APD 050523-s, decided April 11, 2005, in which the Appeals Panel recognized the right of the carrier to recoup an overpayment of benefits from contribution against supplemental income benefits (SIBs). Section 408.084(a) specifically provides that IIBs and SIBs may be reduced in a proportion equal to the proportion of a documented impairment that resulted from earlier compensable injuries. Section 408.084(a) specifically authorizes the recoupment provided for in APD 050523-s, supra. The carrier also referenced APD 94134, decided March 16, 1994. In APD 94134 the Claimant had returned to work and apparently was not experiencing any continuing effects of the injury. There is also a line of cases that did not allow recoupment when the claimant still had continuing disability. It was not clear in the present case whether or not the claimant had continuing disability although it was clear that during the specific time period in dispute, the claimant had returned to work for different employers and had earnings which were not taken into consideration in the calculation of TIBs for the corresponding period.

The hearing officer correctly noted that APD 033358-s, decided February 18, 2004, stated that much of the prior precedent on recoupment has been superceded by Rule 128.1(e)(2). 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. Although the carrier states it is not asking for a determination of an administrative violation, Section 415.008 is the only statutory authority under which it is entitled to recoupment under the facts at issue. As previously noted, Section 415.008 specifically addresses when an administrative violation occurs. No other statutory provision or rule is cited by the carrier, nor have we found any, which provides for recoupment under the facts as presented in this case. The carrier does have a remedy to seek repayment through another forum as previously discussed. The hearing officer’s determination that the carrier is not entitled to reduce the claimant’s TIBs and IIBs to recoup a previous overpayment is affirmed.

We affirm the determination that there was an overpayment of TIBs from October 22, 2004, through March 17, 2005. We reverse the determination that the amount of the overpayment was $5,487.39 and render a determination that the amount of the overpayment was $4,795.14. We affirm the determination that the carrier is not entitled to reduce the claimant’s TIBs and IIBs to recoup a previous overpayment.

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 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 20, 2003. The hearing officer determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the ninth compensable quarter; that the claimant’s weekly earnings to be used to determine the SIBs rate for the qualifying period corresponding to the ninth quarter cannot be determined; and that the SIBs rate for the ninth quarter cannot be determined. The claimant appeals these determinations. The respondent (carrier) urges affirmance of the hearing officer’s decision.

DECISION

Affirmed.

Section 408.142 provides that an employee continues to be entitled to SIBs after the first compensable quarter if the employee: (1) has not returned to work or has earned less than 80% of the employee's average weekly wage as a direct result of the impairment; and (2) has in good faith sought employment commensurate with her ability to work. Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE §130.102(d)(1) (Rule 130.102(d)(1)), applicable in this case, provides that an injured employee has made a good faith effort to obtain employment commensurate with the employee's ability to work if the employee has returned to work in a position which is relatively equal to the injured employee's ability to work. Whether the claimant satisfied the good faith requirement for SIBs entitlement was a question of fact for the hearing officer to resolve. Section 410.165(a) provides that the contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. The hearing officer noted that the claimant was not forthcoming about matters essential to determining the issues in question and issued a decision adverse to the claimant. Nothing in our review of the record indicates that the hearing officer’s decision is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The decision and order of the hearing officer are affirmed.

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

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701.

Chris Cowan
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Gary L. Kilgore
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 27, 2003. The hearing officer resolved the disputed issue by deciding that the appellant (self-insured) is entitled to adjust the respondent’s (claimant) average weekly wage (AWW) to reflect the seasonal nature of the claimant’s employment from May 23 through August 25, 2002, to $330.66. The self-insured appealed, arguing that the hearing officer’s determination is error as a matter of law. The claimant responded, urging affirmance.

DECISION

Affirmed.

The facts of this case are largely undisputed. The claimant was employed, on a noncontractual basis, as a bus driver for the self-insured on the date of her compensable injury, which was _____________. The evidence reflected that the claimant chose to spread her paychecks over a 10-month period rather than a 12-month period. The claimant testified that she had worked for other school districts in previous years driving a bus and had always worked during the summer months. The evidence reflected that the claimant signed up to work during the summer months for the self-insured, but was not hired to do so.

At issue was whether the self-insured could adjust the AWW for the summer period from May 23 through August 25, 2002. The self-insured argues that the hearing officer’s reliance on Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.5(c) (Rule 128.5(c)), applicable only to seasonal employees, constitutes error as a matter of law. The self-insured argues that Rule 128.5(c) is in conflict with the clear meaning of Section 408.0446(b) and Rule 128.7(d).

Section 408.0446, effective December 1, 2001, provides that for injuries sustained by school district employees on or after the effective date, the AWW will be computed as follows:

(a)For determining the amount of temporary income benefits [TIBs] of a school district employee under Chapter 504, the [AWW] is computed on the basis of wages earned in a week rather than on the basis of wages paid in a week. The wages earned in any given week are equal to the amount that would be deducted from an employee's salary if the employee were absent from work for one week and the employee did not have personal leave available to compensate the employee for lost wages for that week.

(b)An insurance carrier may adjust a school district employee's [AWW] as often as necessary to reflect the wages the employee reasonably could expect to earn during the period for which [TIBs] are paid. In adjusting a school district employee's [AWW] under this subsection, the insurance carrier may consider any evidence of the employee's reasonable expectation of earnings. [Emphasis added.]

Rule 128.7, effective May 16, 2002, provides that for injuries sustained by school district employees on or after December 1, 2001:

(d)The AWW for computing [TIBs] may be increased or decreased to more accurately reflect wages the school district employee reasonably could expect to earn during the period for which [TIBs] are paid.

We cannot agree that the hearing officer’s discussion of Rule 128.5 in the Statement of the Evidence portion of the Decision and Order indicates that she relied on Rule 128.5, rather than Rule 128.7 and Section 408.0446 in making her determination. The discussion clearly indicates that the hearing officer applied the correct statute and rule relating to school district employees but simply discussed Rule 128.5 by analogy to determine what evidence to consider in determining the wages the claimant could reasonably expect to earn for the time period at issue. In Texas Workers’ Compensation Commission Appeal No. 022860-s, decided January 3, 2003, Section 408.0446 and Rule 128.7 were the applicable provisions at issue. In Appeal No. 022860-s, the case was remanded for a determination of what the claimant could reasonably have been expected to earn during the summer vacation if she had not been injured and it was held that “an analysis of what a school district employee could reasonably expect to earn over the summer should be made with reference to the work history of that employee and not with reference to the expectation of payment from the school district over a 12-month period.” There was evidence that the claimant’s work history included work during the summer months in previous years. Additionally, the claimant testified that if not for her injury, if she had not been chosen to drive the school bus for the summer for the self-insured that she would have looked for other work during the summer months. The hearing officer was persuaded that the claimant had a reasonable expectation of earning $4,629.28 from May 23 through August 25, 2002. There is sufficient evidence in the record to support that finding. Nothing in our review of the record indicates that the hearing officer’s decision is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is a governmental entity self-insured either individually or collectively through DEEP EAST TEXAS SELF INSURANCE FUND and the name and address of its registered agent for service of process is

TL

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Margaret L. Turner

CONCUR:

Elaine M. Chaney
Appeals Judge

Robert W. Potts
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on February 26, 2001. The hearing officer determined that the supplemental income benefits (SIBs) rate for respondent (claimant) is $907.45. Appellant (carrier) appealed this determination on sufficiency grounds. Claimant responded that the Appeals Panel should affirm the hearing officer’s decision and order.

DECISION

We affirm.

There is no issue of SIBs entitlement in this case. The issue in this case is the SIBs rate. Carrier contends the hearing officer erred in determining that the SIBs rate in this case is $907.45. Carrier first asserts that claimant did not prove her “true earnings” by producing a document called an "agent summary." Section 408.144(b) states that SIBs are to be calculated by "subtracting the weekly wage the employee earned during the reporting period . . . ." Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE §§ 130.101 and 130.102 (Rules 130.101 and 130.102) indicate that SIBs are to be calculated by adding actual and offered wages for each week of the filing period. "Actual wages" is not defined. Rule 130.101(9) defines “wages” to include, "[a]ll forms of remuneration payable for personal services rendered during the qualifying period as defined in Texas Labor Code, § 401.011(43), including the wages of a bona fide offer of employment which was not accepted." Section 401.011(43) states that “wages" includes “all forms of remuneration payable for a given period to an employee for personal services. The term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee's remuneration.” We have said that, in calculating a self-employed claimant’s wages during the filing period, business expenses may be deducted to arrive at the earnings. Texas Workers’ Compensation Commission Appeal No. 990372, decided April 5, 1999 (Unpublished).

Claimant testified that she works as an independent contractor for (CS Company) and that she is in sales. She said she is paid advances against commissions. Claimant testified that she is paid 60% of the commissions she earns and 40% is held in a “bonus account,” and cannot be paid to her until the policy she sold is retained for one year. Claimant testified that there were times when the account “flipped” and was in negative numbers because of lack of retention. She said she has not been paid any amounts from the bonus account. Claimant did not attach the agent summary to her Application for [SIBs] (TWCC-52), but she did offer check stubs showing amounts paid to her for advance commissions. The hearing officer indicated that there was nothing that made him doubt claimant’s veracity about the amounts paid to her by CS Company. We note that there is no issue before us regarding discovery, denial of subpoena, or denial of a continuance. The issue before us on appeal is adequacy of evidence to prove earnings and expenses. We have reviewed the evidence and we conclude that the hearing officer could find from the evidence that claimant’s income from CS Company were as shown by the check stubs included in the record.

Carrier next contends that the hearing officer erred in permitting the deduction of expenses for claimant’s cellular telephone, automobile, and pager. Carrier asserts that claimant may have used them for personal use. Claimant testified that she did not have a cellular telephone or pager before this job, that she does not use them for personal use, she does not have any children she calls, and that her husband is her boss and her calls to him involve work. Claimant said she keeps a business mileage diary to log her miles for business use. The hearing officer apparently believed claimant’s testimony regarding personal use to be credible. We perceive no error.

Carrier contends the hearing officer erred in permitting claimant to deduct expenses of $30 per month for premiums for "errors and omissions coverage." Claimant said she did actually pay the premiums and she produced a letter from CS Company that says is it "required" that she carry it. We perceive no error.

Carrier contends the hearing officer erred in permitting the deduction of automobile expenses based on a rate of 28 cents per mile. Carrier asserts that the hearing officer should have required that claimant prove her exact expenses for the automobile she used in her business, rather than permitting a standard 28 cents per mile deduction. Carrier also asserts that no deduction should be permitted for depreciation, which is included in the 28 cents per mile deduction. Claimant said she kept a mileage diary to document her business mileage and that she takes an IRS deduction on her taxes for this mileage. Claimant said she did not claim expenses for gasoline or other automobile expenses, but used this standard 28 cents per mile deduction instead. In a January 24, 2001, letter, Mr. G, a certified public accountant, stated that claimant’s expenses are normal for her line of work. We note that carrier cited Texas Worker’s Compensation Commission Appeal No. 001131, decided June 28, 2000, in support of its contentions in this regard. However, we conclude that, under the facts of this case, the hearing officer could determine that the standard deduction of 28 cents per mile for automobile expenses constitutes a valid expense that can be deducted to determine claimant’s wages earned during the qualifying period. We perceive no error in the hearing officer’s determination of expenses for claimant’s automobile.

We have reviewed the complained-of determinations and we conclude that the hearing officer’s determinations are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

We affirm the hearing officer’s decision and order.

Judy L. Barnes
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Philip F. O’Neill
Appeals Judge