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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 1, 2015, with the record closing on July 7, 2015, in Denton, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent’s (claimant) average weekly wage (AWW) is $1,084.28; and (2) the appellant (carrier) is required to pay benefits retroactively due to a change in AWW which is based upon pre-injury wages from a non-claim employer reflected on an Employee’s Multiple Employment Wage Statement (DWC-3ME) which was not submitted to the carrier until after the claimant had reached maximum medical improvement (MMI) and all income benefits which were due had been paid.
The carrier appealed the hearing officer’s determinations, contending that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The claimant responded, urging affirmance of the hearing officer’s determinations.
DECISION
Affirmed.
The parties stipulated in part that the claimant sustained a compensable injury on (date of injury), and the claimant reached MMI on the statutory date of March 15, 2014. Also, the parties stipulated to the amount of the AWW with and without the inclusion of pre-injury wages paid to the claimant by a non-claim employer, Healing Touch Homecare (HTH), as follows: (1) the claimant’s AWW exclusive of wages from the non-claim employer, HTH, is $972.73, and benefits were paid based upon that figure; and (2) the claimant’s AWW including wages from the non-claim employer, HTH, is $1,084.28.
In this case, the evidence reflects that on the date of injury the claimant was employed by a claim employer, and two non-claim employers, Lakes Regional MHMR Center (LR) and HTH, respectively. In evidence is a letter dated February 26, 2015, from the claimant to the carrier requesting that the amount of AWW be re-calculated based on the pre-injury wages from the second non-claim employer.
The carrier states in its appeal that it paid temporary income benefits (TIBS) based upon the pre-injury wages from the claim employer and one non-claim employer, LR. The carrier argues that since the claimant has been paid all income benefits and the claimant’s date of MMI has passed, the claimant is prohibited from requesting an adjustment to her AWW from an additional non-claim employer.
Section 408.042(e) provides:
For an employee with multiple employment, only the employee’s wages that are reportable for federal income tax purposes may be considered. The employee shall document and verify wage payments subject to this section.
28 TEX. ADMIN. CODE § 128.1(h) (Rule 128.1(h)) amended effective May 16, 2002, states in pertinent part:
(h) For employees injured on or after July 1, 2002, who are employed by more than one employer on the date of injury and the employee submits the wage information from the other employer(s) in the form and manner prescribed by [Rule] 122.5 of this title (relating to [DWC-3ME]), the carrier shall calculate the AWW using the wages from all the employers in accordance with this section. The employee’s AWW shall be the sum of the AWWs for each employer.
* * * *
(2) The portion of the employee’s AWW based upon employment with each “Non-Claim Employer” (as the term is defined in [Rule] 122.5 of this title) shall be calculated in accordance with [Rule] 128.3 of this title (relating to [AWW] Calculations for Full-Time Employees, and for [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(f) effective May 16, 2002, states in pertinent part:
(f) Employees who file [DWC-3ME] are required to report all changes in employment status and/or earnings at the Non-Claim Employer to the carrier until the employee reaches [MMI].
(1) The employee shall report all changes in employment status at the Non-Claim Employer including termination or resignation within 7 days of the date the change takes place.
(2) The employee shall report within 7 days of the end of the pay period in which a change in earnings at the Non-Claim Employer related to the compensable injury took place. This would include both reductions and increases in wages as compared to the prior week as long as the difference was caused by the compensable injury such as because the employee's ability to work changed or the employer was more or less able to provide work that met the employee's work restrictions.
The carrier argued that the claimant had waived the right to seek further adjustment of her AWW because of lack of due diligence in obtaining and submitting an updated wage statement from her second non-claim employer, HTH; the claimant violated Rule 122.5(f) when she submitted the DWC-3ME for one non-claim employer, LR, but not for the additional non-claim employer, HTH; and pursuant to Rule 122.5(f) the claimant’s obligation to report changes ceases upon reaching MMI, placing an affirmative duty upon the claimant to submit wage information while benefits are still being paid.
The hearing officer explains in the discussion portion of his decision that in this case Rules 128.1 and 122.5 do not provide an exception where there is a delay in filing the DWC-3ME, whereas the carrier has a duty to adjust the AWW and to make payments based upon the correct AWW. The hearing officer’s determinations that: (1) the claimant’s AWW is $1,084.28; and (2) the carrier is required to pay benefits retroactively due to a change in AWW which is based upon pre-injury wages from a non-claim employer reflected on DWC-3ME which was not submitted to the carrier until after the claimant had reached MMI and all income benefits which were due had been paid, are supported by sufficient evidence and are affirmed.
A written decision is being issued in this case to clarify that Rule 122.5 does not establish a deadline for filing a DWC-3ME. Rule 122.5(f) defines the time period, up to the date the claimant reaches MMI, for which any change in employment status or wages must be reported to the carrier.
The preamble to Rule 122.5 clarifies that there is no deadline for filing a DWC-3ME (27 Tex. Reg. 4032, 2002). The following public comment and Texas Department of Insurance, Division of Workers’ Compensation (Division) response to Rule 122.5 states:
Comment: Commenter was concerned that the rule did not provide a timeframe in which to file a [DWC-3ME] which “will result in continuing uncertainty as to the proper AWW.” The commenter suggested adding a time limit to the rule so that claimants would have 30 days from the date they received the Employer’s Wage Statement to file their own [DWC-3MEs].
[Division] Response: The [Division] disagrees that the employee should have only 30 days to report the multiple employment wages. Employees may have difficulty obtaining wage information from non-claim employers and to put a limit on the amount of time the employee has to submit the information might punish the employee for the inactions of the non-claim employer (who is not required by statute to provide the information). It may turn out that the employee is only able to obtain the information from the Texas Workforce Commission. According to their process, wage reports are filed quarterly and subsequently loaded into database files where wage reports for given individuals are generated. Based on their schedule, a considerable gap in time exists, potentially six months, between the time the wages are earned and the time that a wage report reflecting the needed earning can be generated.
If a carrier receives a late wage statement that proves that the AWW that the carrier has been using to pay benefits is too high, the carrier is not prevented from using this new information even though the employer was in noncompliance by failing to timely file the report. Putting a limit on the amount of time the employee has to report the wages from a non-claim employer while not putting such a limit on a claim employer would result in an unwarranted double standard.
SUMMARY
The hearing officer’s determinations that the claimant’s AWW is $1,084.28, and the carrier is required to pay benefits retroactively due to a change in AWW which is based upon pre-injury wages from a non-claim employer reflected on DWC-3ME which was not submitted to the carrier until after the claimant had reached MMI and all income benefits which were due had been paid are supported by sufficient evidence and 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
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
Veronica L. Ruberto
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 was held on May 12, 2004. The hearing officer determined that appellant (claimant) did not sustain a compensable injury on _____________; that the claimed injury does not extend to a “mass in the tendon sheath of the left middle finger, tenosynovitis, post-traumatic carpal tunnel syndrome, cellulites and gouty arthritis of the left upper extremity”; that claimant does not have disability; and that claimant did have post-injury earnings. Claimant appealed the determinations regarding compensability, extent of injury, and disability on sufficiency grounds. Respondent (carrier) responded that the hearing officer did not err in making her determinations. The determination regarding post-injury earnings was not appealed.
DECISION
We affirm.
We have reviewed the complained-of determinations and conclude that the issues involved fact questions for the hearing officer. The hearing officer reviewed the record and decided what facts were established. We conclude that the hearing officer's determinations are supported by the record and are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
We affirm the hearing officer’s decision and order.
According to information provided by carrier, the true corporate name of the insurance carrier is LUMBERMENS MUTUAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TEXAS 78701.
Judy L. S. Barnes
CONCUR:
Chris Cowan
Appeals Judge
Thomas A. Knapp
Appeals Judge
This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 31, 2004. The hearing officer determined that: (1) the compensable injury of ______________, does extend to and include an injury of depression; (2) the average weekly wage (AWW) for the purpose of computing temporary income benefits (TIBs) between ______________, and the current date, pursuant to Section 408.0446(b) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.7(c)(2) (Rule 128.7(c)(2)), is $336.56, resulting in TIBs in the amount of $235.59 per week; (3) the AWW for the purpose of computing impairment income benefits (IIBs) between ______________, and the current date, pursuant to Section 408.0446(c) and Rule 128.7(e), is $243.51, resulting in IIBs in the amount of $170.46 per week; and (4) the appellant/cross-respondent (self-insured) is entitled to recoup an overpayment of benefits due to a revised AWW. The self-insured appealed the hearing officer’s extent-of-injury determination and the respondent/cross-appellant (claimant) appealed the hearing officer’s recoupment determination. The self-insured responded to the claimant’s cross-appeal and urged affirmance of the hearing officer’s recoupment determination. The hearing officer’s AWW determinations were not appealed and have become final pursuant to Section 410.169.
DECISION
Affirmed, as reformed.
We note that the unappealed Findings of Fact Nos. 5 and 6 contain a typographical error and we reform those findings of fact to correct the typographical error and conform to the hearing officer’s Conclusion of Law No. 5 and the evidence presented at the CCH. Findings of Fact Nos. 5 and 6 are reformed to read $243.51, rather than $242.51.
The parties stipulated that the claimant sustained a compensable injury on ______________. The hearing officer did not err in determining that the claimant’s compensable injury of ______________, extends to include an injury of depression. There was conflicting evidence. The hearing officer reviewed the record and decided what facts were established. The hearing officer was persuaded by the claimant’s testimony and her medical evidence to determine that the claimant’s compensable injury extends to include her depression. We conclude that the hearing officer’s determination is supported by the record and is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The hearing officer did not err in determining that the self-insured is entitled to recoup an overpayment of benefits due to a revised AWW. The unappealed hearing officer’s findings of fact were that: (1) the AWW for the purpose of computing TIBs was $336.56, resulting in TIBs in the amount of $235.59 per week; and (2) the AWW for the purpose of computing IIBs was $243.51, resulting in IIBs in the amount of $170.46 per week. See Rules 128.7(c)(2) and 128.7(e). The claimant argues that the self-insured is not entitled to recoupment because the miscalculation of AWW was based on the self-insured’s own mistake. In Texas Workers’ Compensation Commission Appeal No. 033358-s, decided February 18, 2004, we held that prior precedent decisions concerning recoupment that were based on equitable principles were superseded by Rule 128.1(e). Rule 128.1(e), effective May 16, 2002, provides a way for a carrier to recoup overpayment of TIBs in situations where the AWW is miscalculated. In the present case, the hearing officer could find that Rule 128.1(e) clearly applies and provides the basis for recoupment by the self-insured. We perceive no error.
The hearing officer’s decision and order are affirmed, as reformed.
The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is
SUPERINTENDENT
(ADDRESS)
(CITY), TEXAS (ZIP CODE).
Veronica L. Ruberto
Appeals Judge
CONCUR:
Chris Cowan
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 July 1, 2003. Because hearing officer 1 is no longer employed by the Texas Workers' Compensation Commission (Commission), the parties agreed that instead of conducting a second CCH, (hearing officer 2), would review the file and tape recording of the proceeding and issue a decision and order. Hearing officer 2 resolved the disputed issues by determining that the appellant’s (claimant) average weekly wage (AWW) is $413.50, and that the claimant is not estopped from raising the AWW issue. The hearing officer’s determination on the estoppel issue has not been appealed and has become final pursuant to Section 410.169.
The claimant appeals, contending that a “per diem” payment of $45 a day should be included in the claimant’s AWW pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.1(3)(D) (Rule 126.1(3)(D)). The respondent (carrier) responds, urging affirmance citing Appeals Panel decisions in support of its case.
DECISION
Affirmed.
The claimant, a portrait photographer, traveled to various stores selling packages of photos that he took. The claimant was paid $45 a day (dependent on the one way estimated mileage) for the days the claimant worked away from his home. The claimant testified that he was not required to turn in receipts and that he made some money on the allowance. The time and travel reimbursement report signed by the claimant contains the statement that the employee “did incur food and lodging costs.” The “expensive report” indicates the $45 was for $35 “per diem or Lodging” and $10 for “Meals.” The claimant contends this amount should be included in the AWW pursuant to Rule 126.1(3)(D). The pertinent part of Rule 126.1(3) states:
(3)Pecuniary Wages—Wages paid to an employee in the form of money. Examples of pecuniary wages include, but are not limited to:
* * * *
(D)Any monetary allowance such as for health insurance premiums, vehicle/fuel, food/meals, clothing/uniforms, laundry/cleaning, or lodging/housing/rent; [Emphasis added.]
The carrier contends that the Appeals Panel has generally held such amounts payable for travel expenses were not included in AWW citing Rule 128.1(c)(1). That rule states:
(c)An employee’s wage, for the purpose of calculating the AWW, shall not include:
(1)payments made by an employer to reimburse the employee for the use of the employee’s equipment, for paying helpers, for reimbursing actual expenses related to employment such as travel related expenses (e.g. meals, lodging, transportation, parking, tolls, and porters), or reimbursing mileage up to the state rate for mileage [Emphasis added.]
The claimant counters that Rule 128.1(c)(1) was amended by adding the emphasized portion and that Rules 126.1(3)(D) and 128.1(c)(1) should be read together and if the payments are monetary allowances rather than reimbursement for actual travel expenses incurred by the employee then the monies should be included in the AWW. The claimant stresses the provision in Rule 128.1(c)(1) “reimbursing actual expenses” and that the claimant did not have to submit receipts for lodging and meals.
Rule 128.1(c) was amended effective May 16, 2002 (27 Tex. Req. 4036), to add the emphasized portion of Rule 128.1(c). Our review of the preamble of the amendment (id) indicates that the amendment in subsection (c) was “designed to provide clarification, include a reference to the definition and examples of pecuniary and nonpecuniary wages in § 126.1. . . . examples of exclusions to the AWW related to expenses are provided in Section (c)(1).” A commenter indicated that the subsection needed clarification on the issue of “per diem” compensation and whether it constitutes a component of the AWW. It was noted that most Appeals Panel decisions do not indicate that per diem constitutes a component. Another commenter noted that Section 408.042(e) does not allow wages that are not reportable for federal income tax purpose to be considered in calculating the AWW. The Commission responded:
Regarding the per diem compensation, the commission has modified the rule to specifically exclude reimbursement for employee’s expenses (i.e. meals, lodging, transportation, parking, tolls, porters, etc). These expenses are reimbursement for out-of-pocket expenses related to employment and not wages. (Id at 4039)
The hearing officer’s determination that the per diem payment was a partial reimbursement for lodging, meals, and incidental travel costs is supported by the evidence including the claimant’s clarification on the travel reimbursement report that he did incur food and lodging costs. We believe the Commission’s commentary on the amendment to Rule 128.1(c)(1) makes clear that it intended to exclude such reimbursement expenses from the definition of wages.
For the reasons stated, we affirm the hearing officer’s decision and order.
The true corporate name of the insurance carrier is TEXAS PROPERTY & CASUALTY INSURANCE GUARANTY ASSOCIATION for Reliance Insurance Company, an impaired carrier and the name and address of its registered agent for service of process is
MARVIN KELLEY, EXECUTIVE DIRECTOR
9120 BURNET ROAD
AUSTIN, TEXAS 78758.
Thomas A. Knapp
Appeals Judge
CONCUR:
Judy L. S. Barnes
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 November 29, 2001. In resolving the issues before him, the hearing officer determined that the appellant (claimant) was not entitled to additional temporary income benefits (TIBs) for the period that he received payments from the employer pursuant to its Unavoidable Absence/Occupational Injury and Illness Benefits (UAB) policy. The hearing officer also added a conclusion of law, unattached to a certified issue, which read that the carrier is entitled to a credit against TIBs which it would otherwise be required to pay for the period during which the claimant received payment of such benefits from the employer pursuant to its UAB policy. The claimant, seeking reversal, appeals the determination, and the respondent (carrier) responds, urging affirmance.
DECISION
Reversed and rendered.
The hearing officer erred in determining that the claimant was not entitled to additional TIBs for the period that he received payments from the employer pursuant to its UAB policy. The hearing officer also erred in determining that the carrier is entitled to a credit against TIBs which it would otherwise be required to pay for the period during which the claimant received payment of such benefits from the employer pursuant to its UAB policy. The claimant alleges[1] that he incurred lost wages as a result of his compensable injury from an explosion at the employer’s plant on March 27, 2000. “Lost wages” are defined in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 129.2(b) (Rule 129.2(b)), as “the difference between the employee’s gross average weekly wage (AWW) and the employee’s gross Post-Injury Earnings (PIE).”
In this case, the parties stipulated that the claimant’s AWW was $1,054.41. The hearing officer found that the claimant’s “regular weekly pay,” based on a 40-hour work week as defined in the UAB policy, was $938.80, and that amount[2] was not appealed by the parties. The evidence shows that the UAB policy benefits were a part of the result of a collective bargaining agreement (CBA) between the claimant’s union and the employer.[3] However, the hearing officer erroneously decided that because union and nonunion employees alike received UAB benefits, then the CBA was not one as described in Rule 129.2. It is not in dispute that the claimant received the UAB policy benefits. The UAB policy provided that, in the case of an employee’s “unavoidable absence,” it would pay benefits to the employee, for the first 26 weeks, in an amount up to 100% of his “regular weekly pay,” and that it would pay up to 50% of the employee’s “regular weekly pay” for the next 26 weeks. It is undisputed that the employer paid the claimant a total of $938.80 per week for the first 26 weeks of his “unavoidable absence.” It is further undisputed that the claimant received $469.40 per week from the employer and $61.60 per week from the carrier for the second 26 weeks of his absence from the job.
The dispute in this case is the nature of the payments made by the employer. The carrier claims that the monies paid during the first 26 weeks were $531.00 TIBs and $407.80 UAB benefits per week and that all $531.00 per week during the second 26 weeks were TIBs. The claimant argues that the UAB benefits set out in the policy are to be considered PIE. The hearing officer also erred in finding that any of the monies paid by the employer were TIBs. Under current workers’ compensation law, only the carrier can pay TIBs; the employer may pay additional monetary benefits to an employee, but such benefits are not to be considered TIBs.
According to Rule 129.2(c)(6)(A), PIE shall include, but not be limited to, the documented weekly amount of “a contractual obligation between the employer and the employee including through a collective bargaining agreement.” (Emphasis added). Rule 129.3(f) prescribes that, subject to the maximum ($531.00) and the minimum weekly TIBs rates, the employee is entitled to TIBs to be calculated as the employee’s PIE subtracted from his AWW, multiplied by 70%, or (AWW - PIE) x 70%. Therefore, since the claimant’s AWW has been stipulated to be $1,054.41 and his UAB policy allowed him benefits in the amount of $938.80 per week for the first 26 weeks and $469.40 per week for the second 26 weeks, we order that the $938.80 is claimant’s PIE for the first 26 weeks and $469.40 for the second 26 weeks. PIE should be subtracted from his AWW, which sum should be multiplied by 70% to calculate the TIBs rates.
The carrier argues that the UAB policy allows for the employer to pay what it refers to as “TIBs” in lieu of the carrier, and that it paid the claimant in accordance with workers’ compensation benefits. While Rule 129.2(d)(4) allows that the amounts paid by the employer to the employee in lieu of TIBs may be taken out of the PIE if the employer has or “intends to” seek reimbursement from the carrier, the employer has not filed a form seeking reimbursement from the carrier, nor has it declared its intention to do so. See also, Section 408.003(c) - (h) of the 1989 Act. The carrier then argues that the claimant was nevertheless on notice of the fact that the employer would be paying “TIBs” under the UAB policy. As noted earlier, only the carrier can pay TIBs. The UAB policy benefits as defined therein do not govern the determination of the amount of or eligibility for TIBs to which the claimant is entitled; the UAB policy addresses only when and how much UAB policy benefits will be paid to an employee. TIBs entitlement and the determination of the amount owed to the claimant are governed by the 1989 Act and Texas Workers’ Compensation Commission Rules, as cited herein, and are paid exclusively by the carrier.
We further note for the record that at the date of the expiration of the UAB policy benefits (the date that the employer merged with another company--January 1, 2001), the carrier began paying the claimant $531.00 weekly for TIBs until September 19, 2001, at which time the carrier began paying impairment income benefits to the claimant.
The hearing officer’s decision and order is reversed, and we render a decision that the claimant is entitled to TIBs payments consistent with this decision and to be calculated in accordance with Rule 129.2, along with interest on any unpaid accrued benefits. In addition, we determine that the carrier is not entitled to any credit for UAB policy benefits paid by the employer to the claimant.
The true corporate name of the insurance carrier is PACIFIC EMPLOYERS INSURANCE COMPANY and the name and address of its registered agent for service of process is
MARCUS CHARLES MERRITT
6600 CAMPUS CIRCLE DRIVE EAST
IRVING, TEXAS 75063.
Gary L. Kilgore
Appeals Judge
CONCUR:
Judy L. S. Barnes
Appeals Judge
Terri Kay Oliver
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 November 8, 2001. The hearing officer determined that the appellant (claimant) is not entitled to impairment income benefits (IIBs) after December 22, 2000, the date of expiration of 401 weeks from the date of injury. The claimant appeals, arguing that she is entitled to full IIBs based upon her 28% impairment rating (IR), as the IR was assessed before 401 weeks had expired after the injury. The respondent (self-insured) did not respond to the appeal.
DECISION
Affirmed.
The relevant provision of the 1989 Act is Section 408.083, which provides:
[effective for dates of injury before September 1, 1995.] TERMINATION OF RIGHT TO TEMPORARY INCOME, IMPAIRMENT INCOME, AND SUPPLEMENTAL INCOME BENEFITS. An employee's eligibility for temporary income benefits [TIBs], [IIBs], and supplemental income benefits [SIBs] terminates on the expiration of 401 weeks after the date of injury.
The parties stipulated that December 22, 2000, is 401 weeks following the claimant’s date of injury, _____________. The evidence indicated that Section 503.041 applied to this case, and that the claimant never received any income benefits (in the form of TIBs) because the claimant remained on the payroll, using earned annual and sick leave. The hearing officer determined that income benefits did not accrue to the claimant until October 12, 2000, the date of maximum medical improvement (MMI) certified by the designated doctor. The claimant was entitled to IIBs beginning on the day after the claimant reached MMI, as provided in Section 408.121(a). The claimant argues that she is entitled to the full 84 weeks of IIBs based on her 28% IR because the IR was assessed and she became eligible for IIBs before the expiration of 401 weeks after the injury, and because there are options under Section 408.128 for commutation (payment in a lump sum) and Section 408.129 for acceleration of IIBs payments, which would have allowed her to receive payment for those benefits prior to the expiration of 401 weeks. We do not agree with the claimant’s interpretation. We previously discussed the application of Section 408.083 in Texas Workers’ Compensation Commission Appeal No. 990667, decided May 13, 1999. In that case, we found that the 401-week period ended on December 3, 1998, and we concluded that the claimant was not entitled to SIBs for any portion of the quarter beyond that date. That resulted in a payment of SIBs from November 1 to December 3, 1998, even though the claimant otherwise established her entitlement to SIBs for the entire quarter. The hearing officer made his determination based upon the plain meaning of the 1989 Act and a correct application of our prior decisions.
We affirm the decision and order of the hearing officer.
The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is
JAVIER GARZA, WLI MANAGER
201 WEST 7TH STREET, ASH 414
AUSTIN, TEXAS 78701-2981.
Michael B. McShane
Appeals Judge
CONCUR:
Judy L. S. Barnes
Appeals Judge
Edward Vilano
Appeals Judge
This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 30, 2000. At the CCH, the parties requested that four docket numbers, involving four injuries, multiple issues, and three carriers be heard at the same time in one CCH. All the parties were represented by capable highly competent attorneys. The hearing officer’s decision was only challenged in this case and, therefore, the hearing officer’s decision in the other cases has become final pursuant to Section 410.169. The issues agreed upon in this case were:
1. Can the Carrier [appellant/cross-respondent] take credit against temporary income benefits (TIBs) it would otherwise owe to the Claimant [respondent/cross-appellant] for short-term disability [STD] payments the employer made to the Claimant?
2. As a result of the decision and order of the Benefit Contested Case Hearing (and affirmation by Appeals Panel in Appeal No. 000300 [Texas Workers’ Compensation Commission Appeal No. 000300, decided March 23, 2000], does the Commission [Texas Workers’ Compensation Commission] have jurisdiction to determine compensability of arthritis and damage to joint surfaces of the right knee?
3. Did the Claimant sustain disability from January 13, 2000 to the present?
4. Is the compensable injury of ________ a producing cause of arthritis and damage to joint surfaces of the right knee?
With regard to those issues, the hearing officer determined that (carrier) can take dollar for dollar credit against TIBs it would otherwise owe to the claimant for the STD payments made by the employer "to Claimant after ________ to the extent such disability payments were funded by Employer"; that the Commission has jurisdiction to determine extent of injury of arthritis and joint damage because those issues were not litigated in Appeal No. 000300; that the claimant had disability from January 13, 2000, through the date of the CCH; and that the compensable (right knee strain) injury of ________ is a producing cause of arthritis and damage to the joint surfaces of the right knee.
The carrier appeals the determinations on the jurisdiction, disability, and extent of injury issues. The claimant appeals the set-off for STD issue and responds to the carrier’s appeal.
Affirmed in part as reformed, and reversed and rendered in part.
It is undisputed that the claimant initially sustained a right knee injury in 1993; that the claimant had arthroscopic surgery in April 1994 (reached maximum medical improvement (MMI) with an impairment rating in 1994) and continued to have pain and grinding in her knee in 1995 and 1996; that the claimant had a second knee surgery in November 1996, had another compensable right knee injury in 1997, had a third surgery in October 1997, and a fourth surgery for the removal of a screw in the latter part of 1997. The claimant had another alleged knee injury in 1998 (denied by the carrier) and sustained another knee injury on ________.
The 1999 injury was the subject of Appeal No. 000300, supra, where the Appeals Panel affirmed the determinations of another hearing officer (or unappealed issues became final) that the compensable 1993 injury was a producing cause "of the chrondral defect of the right medial femoral condyle," that the claimant "sustained a compensable injury . . . in the form of a right knee sprain on or about ________" and that the claimant had disability beginning April 12, 1999, "and continuing through the date of this hearing [January 12, 2000]." The parties stipulated that the "Appeals Court [sic Panel] Decision 000300 has been appealed to the District Court in ________ County."
Background information and some medical evidence is recited in Appeal No. 000300 and will not be repeated here. On the STD issue, the evidence was that the employer paid for a STD policy which pays 50% of the wage to any employee that is unable to work, regardless of the cause, as an employee benefit. The employee can elect to pay a small premium and increase the STD plan by 16 2/3% so that the employee would receive 2/3 of the employee’s wage. The carrier is only claiming an off-set for the 50% paid for entirely by the employer. The claimant argues that she should get the 50% of her wage under the STD plan plus the 70% of her wage as TIBs (i.e. a total of 120% of her wage). The carrier argues that the claimant’s argument would allow "double dipping." The parties argued over whether the STD is taxable and what the Legislature intended in Section 408.003 (salary continuation). The hearing officer, in allowing the carrier to take credit for the STD payments against TIBs, cites a provision of the STD plan which provides that "disability benefits are reduced by the amount of other income [the claimant] receive[s] . . . such as . . . Workers’ Compensation . . . benefits." The hearing officer finds that to hold as the claimant contends would allow the claimant to "double dip" and receive benefits which "equal 120% of Claimant’s previous wage." Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 129.2(c) and (d) (Rule 129.2(c) and (d)) specifically provide that Post- Injury Earnings shall include any monies paid to the employee as salary continuation pursuant to an employer policy or agreement and does not include any monies paid to an employee under an indemnity disability program paid for by the employee separate from workers’ compensation. STD payments prior to the effective date of Rule 129.2 would be considered collateral income and not subject to set-off. Rule 129.2 had an effective date of December 26, 1999, and we therefore reform the hearing officer’s decision on this issue to state that the carrier may take credit for STD payments made to the claimant after December 26, 1999 (rather than ________, to the extent such disability payments were funded by the employer. We affirm the hearing officer’s determinations on this issue, as reformed, as not being contrary to law.
As noted in Appeal No. 000300, the hearing officer found that the chondral defect was due to the 1993 injury; that the claimant sustained a compensable knee strain; and that the claimant had disability to January 12, 2000. This hearing officer found that "compensability of arthritis and damage to joint surfaces of the right knee . . . were not litigated in . . . Appeal No. 000300." Although the carrier argues that the chondral defect is just another way of saying that the claimant has degenerative joint disease, we affirm the hearing officer’s findings on this issue as being technically correct subject to our holding on the extent-of-injury issue.
On the disability issue, disability is defined as the inability to obtain and retain employment at the preinjury wage due to the compensable injury. Section 401.011(26). The hearing officer in Appeal No. 000300 found that the claimant had disability from April 12, 1999, to January 12, 2000, with the ending date of disability being the date of the CCH. There is no evidence that the claimant was able to obtain and retain employment the next day and all the medical evidence as well as the claimant’s testimony establishes that the claimant continues to be off work due to her knee injury, the most recent manifestation of which was the compensable knee strain of ________. Consequently, we affirm the hearing officer’s decision continuing disability from January 13, 2000, to the date of the CCH in this case, November 30, 2000.
This hearing officer found that the compensable (knee sprain as found in Appeal No. 000300) injury was a producing cause of arthritis and damage to joint surfaces of the right knee, citing reports from Dr. S and Dr. A. After the January 2000 CCH, the claimant changed treating doctors to Dr. S. In a report dated April 17, 2000, Dr. S states that the claimant "has an end stage arthritis of her knee." Dr. S went on to comment:
Any twisting injury of the knee would not be simply a strain or a sprain of the soft tissues but rather a grinding of two uneven joint surfaces which are markedly abnormal as proven by multiple arthroscopies in the past. In this regard, no, she never really suffered only a knee strain or sprain, and all of her recent twisting injuries are the result of the fact that she has a markedly arthritic joint . . . .
Dr. S went on to conclude that he does "not think [the claimant] suffered a minor knee sprain" in the ________ incident. We do not read Dr. S’s report as saying the compensable knee sprain of ________ was a producing cause of the "arthritis and damage to joint surfaces of the right knee" but rather Dr. S seems to be arguing that the claimant sustained more than a knee sprain, an issue which was resolved in Appeal No. 000300, supra, at least as far as this case is concerned. Dr. A, in a report of May 30, 2000, talks about aggravation and concludes that "the twisting type injury that [the claimant] describes in ________ could definitely exacerbate an underlying problem of moderately severe degenerative arthritis." Dr. A, in essence, says that the ________ twisting injury aggravated the claimant’s arthritis which might be a new injury in its own right but which the hearing officer in Appeal No. 000300 found only resulted in a knee sprain. Further, the carrier points out that degenerative changes were diagnosed as early as 1995, and arthritis was diagnosed in a report by the claimant’s then treating doctor in a report of April 8, 1998. Consequently, it is hard for us to visualize that a compensable knee sprain injury of ________ could have been a producing cause of conditions diagnosed years earlier in 1995 and 1998. While the parties talked about aggravation, the fact is that the attorneys for both sides agreed to the issue as recited, not an issue of whether the ________ compensable injury aggravated a preexisting condition, a matter which seems to have been resolved by the hearing officer in Appeal No. 000300, limiting that injury to a knee sprain. The parties were represented by knowledgeable attorneys and presumably were aware of how the issue was framed.
There was testimony and evidence that the claimant may need yet another knee surgery and/or a total knee replacement. The carrier, at the CCH, represented that it had offered such additional medical benefits but wished to relate that surgery/treatment to the 1997 compensable injury. The claimant declined the surgery, saying that the carrier was seeking to avoid the payment of additional TIBs by relating the surgery to the 1997 injury. We observe that in affirming disability through November 30, 2000, the claimant appears to be only a few months from statutory MMI (Section 401.011(30)(B)) when TIBs would stop in any event. See Section 408.101.
We affirm the hearing officer’s decision and order on the issues of credit for STD payments for the carrier, as reformed, that the Commission has jurisdiction over the extent- of-injury issue and disability. We reverse the hearing officer’s determinations that the claimant’s compensable ________ injury was a producing cause of arthritis and damage to joint surfaces of the right knee (which had previously been diagnosed) and render a new decision that the compensable ________ injury was not a producing cause of conditions previously diagnosed.
Thomas A. Knapp
Appeals Judge
CONCUR:
Elaine M. Chaney
Appeals Judge
Susan M. Kelley
Appeals Judge