This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 8, 2002. In Texas Workers’ Compensation Commission Appeal No. 021162-s, decided June 27, 2002, the hearing officer’s decision that the respondent (self-insured) is entitled to reimbursement of salary supplementation payments paid to the appellant (claimant) during his entitlement to temporary income benefits (TIBs) from the claimant’s impairment income benefits (IIBs) was reversed and remanded for further consideration as to whether Section 504.001 et seq., relating to self-insured political subdivisions and Section 143.073 of the Local Government Code apply to the facts of this case. A hearing on remand was held on October 21, 2002, and the hearing officer reached the same decision. The claimant appealed, and the file does not contain a response from the self-insured.

DECISION

Affirmed.

The facts of this case are fully set out in Appeal No. 021162-s, supra, and will not be repeated herein. It is undisputed that the claimant was employed as a police officer for the self-insured when he sustained a compensable injury on _____________. The sole issue to be decided is whether the self-insured is entitled to reimbursement for salary supplementation payments paid to the claimant by the self-insured while he was entitled to TIBs, from his IIBs. The claimant argues that because he is a police officer he is a member of a special class. Section 504.051 provides that benefits provided under this chapter shall be offset to the extent applicable, for any incapacity received as provided by Chapter 143, Local Government Code. Section 143.073 of the Local Government Code provides, in part, that a municipality shall provide to a fire fighter or police officer a leave of absence for an illness or injury related to the person’s line of duty. The leave is with full pay for a period commensurate with the nature of the line of duty illness or injury. If necessary, the leave shall continue for at least one year. Section 143.002 of the Local Government Code states:

This chapter applies only to a municipality:

1. (1)That:

   1. (A)has a population of 10,000 or more;

   2. (B)has a paid fire department and police department; and

   3. (C)has voted to adopt this chapter or the law codified by this chapter.

At the hearing on remand, the self-insured’s assistant city attorney presented argument and authority to show that Chapter 143 of the Local Government Code does not apply to this case because the self-insured is a home rule city and has never adopted the chapter or the law codified therein. The claimant presented no evidence to contradict the self-insured’s position on this issue. We find the hearing officer correctly determined that Section 143.073 of the Local Government Code does not apply to the facts of this case.

The claimant argues that the hearing officer erred in determining that the payments made to the claimant were in the form of salary supplementation. Instead, the claimant argues, these payments were salary continuation as defined by Section 408.003(g). The claimant complains that the hearing officer improperly limited his consideration at the remand hearing to the applicability of Section 143.073. We find no merit in these assertions. First, the hearing officer’s determination that the payments made to the claimant were salary supplementation was not reversed in Appeal No. 021162-s, supra. The characterization of these payments presented a question of fact for the hearing officer to resolve. We find sufficient evidence in the record to support the hearing officer’s determination that the payments made to the claimant were in the form of salary supplementation. Second, the hearing officer made it clear at the beginning of the hearing on remand that the sole issue to be decided was the applicability of Section 143.073 of the Local Government Code, and neither party objected.

We likewise find no merit in the claimant’s assertion that the “carrier” never remitted the amount of the reduction to the employer as required by Section 408.127(b). In the instant case, the “carrier” and the employer are one and the same since the employer is a self-insured governmental entity.

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

SA

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Daniel R. Barry
Appeals Judge

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 was opened on May 17, 2002, and closed on June 13, 2002, in (City 1). The hearing officer determined that respondent 1 (claimant) is an employee entitled to Texas workers’ compensation benefits for her injury of __________; that the claimant is a covered employee under a policy issued by the appellant (carrier) to respondent 2 (the employer, hereafter referred to as subclaimant) for her injury of __________; and that the subclaimant is entitled to reimbursement of indemnity benefits paid to or for the claimant for her injury of __________. The carrier appeals, asserting that the claimant does not meet the requirements of Section 406.071 for coverage of her injury, which occurred in another state, because she was not recruited or hired in Texas. The carrier seeks reversal of the finding that coverage exists for the claimant and that the subclaimant is entitled to reimbursement. The claimant responds, urging affirmance. The subclaimant also responds.

DECISION

Affirmed.

In this extraterritorial coverage case, the facts are largely undisputed, and the decision turns on the sufficiency of the evidence to support the hearing officer's findings. Section 406.071(a) provides, in part, that an employee who is injured while working in another jurisdiction is entitled to all rights and remedies under this subtitle if (1) the injury would be compensable if it had occurred in this state; and (2) the employee has significant contacts with this state or the employment is principally located in this state. Section 406.071(b) provides that an employee has significant contacts with this state if the employee was hired or recruited in this state and the employee (1) was injured not later than one year after the date of hire or (2) has worked in this state for at least 10 working days during the 12 months preceding the date of injury.

The evidence established that the subclaimant wanted to bring the production “Annie, Get Your Gun,” to City 1. There are two ways to make that happen. The first is for a sponsor to contact someone who is producing that production and ask them to bring it to the city; the sponsor serves as the presenter of the production. The second way is for the sponsor to actually produce the production, which entails hiring the cast members, rehearsals, and then having the production performed, usually at multiple locations over a several-month period. Since the subclaimant could not find an existing production which could come to City 1 to present the production, it was decided that the subclaimant would produce the production, with the opening run of two weeks in City 1, followed by approximately two months on tour to other cities around the country. A co-producer was found to continue sponsorship of the production for an additional three months at several other locations throughout the United States. The subclaimant, working out of its only office location (in City 1), advertised in trade publications, announcing auditions to be held in City 1 and in (City 2). The claimant and several other individuals residing in the City 2 area, as well as from other locations, were hired, signed contracts in City 2, and rehearsed for four weeks in and near City 2. We note that the contract between the claimant and the subclaimant incorporated the Actor’s Equity Association Rules, which required the subclaimant to obtain and maintain workers’ compensation insurance. All individuals associated with the production were paid by the subclaimant’s office in City 1. The rehearsals moved to City 1 about one week before opening, and the two-week run (16 performances) in City 1 followed. The production moved on to additional cities, and had been out of the state for nearly four weeks when the claimant sustained an injury to her left knee in (City 3). The evidence supports the finding of the hearing officer that the claimant’s injury would be compensable if it had happened in Texas, that the injury occurred within one year of the claimant’s date of hire, and that she had worked in the state of Texas for more than 10 working days before the injury. The evidence also supports the findings that the claimant temporarily resided in Texas while working for the subclaimant, and that she spent a substantial part of her working time in the state of Texas.

The carrier’s principal argument is that the claimant does not have “significant contacts with this state” because she was not hired or recruited in the state, and therefore is not covered for Texas workers’ compensation benefits. That argument ignores the other half of Section 406.071(a)(2), “or the employment is principally located in this state,” which the hearing officer specifically relies upon in his Finding of Fact No. 9. There was conflicting evidence presented in this case, and the arguments for both positions were fully developed. Section 410.165(a) provides that the 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. When reviewing a hearing officer's decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to 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); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard, we find no grounds to reverse the factual findings of the hearing officer. Pursuant to Section 406.071, the hearing officer's factual findings are sufficient to support his conclusion that the claimant is entitled to benefits under the 1989 Act. The evidence likewise supports the conclusion that the subclaimant is entitled to reimbursement of indemnity and medical benefits from the carrier.

The decision and order of the hearing officer are affirmed.

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 R. OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701.

Michael B. McShane

CONCUR:

Daniel R. Barry
Appeals Judge

Philip F. O’Neill
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). Following a contested case hearing held on April 8, 2002, the hearing officer resolved the first disputed issue by finding that the appellant (claimant) requested and was paid salary supplementation, as defined in the 1989 Act, during his period of entitlement to temporary income benefits (TIBs) and concluded that “[t]he Employer is entitled to reimbursement of salary supplementation payments, to wit [sic] the money paid Claimant during his period of entitlement to [TIBs] in addition to the [TIBs] owed, from the Claimant’s impairment income benefits [IIBs].” The hearing officer resolved the second disputed issue by finding that the claimant later received a 12% impairment rating (IR) for his compensable injury of ______________, and concluding that the respondent ((self-insured) employer) is not entitled to a reduction of the claimant’s IIBs based on contribution from an earlier compensable injury. The claimant has appealed the employer reimbursement issue, contending that the hearing officer’s determination of this issue is against the great weight of the evidence. The (self-insured) employer has filed a response, urging that the hearing officer has correctly resolved this issue. The hearing officer’s determination of the contribution issue has not been appealed and thus has become final. Section 410.169.

DECISION

Reversed and remanded.

The facts pertinent to the resolution of the appealed issue are, for the most part, not in dispute and the resolution of this appeal centers on the hearing officer’s application of certain statutory provisions and rules of the Texas Workers' Compensation Commission (Commission). The claimant, a police officer employed by the (self-insured) employer, testified that his back was injured on ______________, in a “slight tussle” while making an arrest; that on February 21, 2000, his supervisor asked him if he wanted to continue to receive his paycheck and he responded affirmatively; and that he signed the form presented to him by the supervisor without reading it. He said no mention was made of his IIBs being reduced as a consequence of his signing the form and that he did not know he had the option of using sick leave instead of requesting the (self-insured) employer’s “salary continuation” plan. In his answers to the (self-insured) employer’s interrogatories, the claimant stated that “it is [his] position that he did not make an election”; that he “was paid his salary under a contractual obligation between the employer and employee, specifically a written agreement or policy and not from a ‘collective bargaining agreement,’ as stated in the benefit review officer’s report”; and that the (self-insured) employer “is not entitled to reimbursement from the [IIBs].”

The parties stipulated that “[o]n ______________, the claimant was employed by the [(self-insured) employer], which had workers’ compensation insurance through self-insurance.” In evidence is the (self-insured) employer’s “Administrative Directive 3-53, Subject: Salary Continuation Plan [the Plan],” which states that its “Purpose” is “to establish a policy of supplementing state mandated Workers’ Compensation weekly indemnity payments with permanent employees who are found to have been injured in the course and scope of employment” and that “[t]he purpose of salary continuation is to ensure workers who sustain bonafide [sic] on-the-job injuries receive approximately the same take-home pay subject to the procedures and limitations described.” The Plan provides in Paragraph 5.3, in part, that “[a]n injured employee who is approved for weekly compensation payments if the disability continued for a period of more than 7 full calendar days may receive salary continuation payments, if eligible, separate and distinct from and in addition to the weekly workers compensation payments.” The Plan contains an Exhibit B-1 entitled “Initiation of Salary Continuation,” which restates that the Plan supplements workers’ compensation weekly indemnity payments and that the purpose is to ensure that employees with compensable injuries receive approximately the same take-home pay. Exhibit B-1 states the following in bold faced, underlined capital letters: “NOTE: THE CITY WILL RECEIVE CREDIT FOR ALL SALARY CONTINUATION PAYMENTS WHEN IMPAIRMENT BENEFITS ARE DETERMINED.”

Below this statement are lines for the employee to check whether he or she elects or does not elect to receive salary continuation. In evidence is a copy of this exhibit signed by the claimant and his supervisor on February 21, 2000, stating that the claimant “elect[s] to receive salary continuation.” The claimant testified that he received payments from the Plan following a compensable low back injury in October 1995 and that the (self-insured) employer did not take reimbursement from his IIBs.

In evidence is a June 27, 2001, Notification Regarding Maximum Medical Improvement [MMI] and/or [IR] (TWCC-28) to the claimant from Ward North America, Inc., referred to by the parties as the “insurance carrier.” Given that the parties stipulated that the employer is (self-insured), we assume that this entity is the (self-insured) employer’s third-party administrator. This document advises the claimant that Dr. B determined that the claimant had reached MMI with an IR of 13% and that unless he disputes this determination, he will receive 39 weeks of IIBs at the rate of $372.00. The following is handwritten on this notice: “Less Credit For WSP [wage supplementation paid] and TIBs overpayment.” Also in evidence are a Notice of IIBs Payment Due and a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21), dated June 27 and 28, 2001, respectively. These documents reflect that the total amount of IIBs due the claimant is $14,508.00, less “WSP in the amount of $14,606.16, less overpayment of TIBs in the amount of $840.00, leaving a negative IIBs balance of minus $938.16.” The evidence reflects that the IR was reduced to 12% based on the report of a designated doctor. Also in evidence are numerous Employer's Report for Reimbursement of Voluntary Payment (TWCC-2) forms, completed weekly, stating, in part, that “This Payment: . . . Supplements Injured Employee’s Income.” Ms. T, employed in the (self-insured) employer’s risk management/workers’ compensation department, testified that the Plan, despite its title, is one of “wage supplementation,” not “wage continuation.”

Section 408.105 contains provisions for salary continuation by the employer “[i]n lieu of payment of [TIBs],” which does not appear applicable here. Section 408.003(a) provides, in part, that after an injury, an employer may initiate benefit payments or, on the written request of the employee, supplement income benefits paid by the insurance carrier. Section 408.003(b) provides that “[i]f an injury is found to be compensable and an insurance carrier initiates compensation, the insurance carrier shall reimburse the employer for the amount of benefits paid by the employer to which the employee was entitled under this subtitle” and that “[p]ayments that are not reimbursed or reimbursable under this section may be reimbursed under Section 408.127.” Section 408.127(a) provides that “[a]n insurance carrier shall reduce [IIBs] to an employee by an amount equal to employer payments made under Section 408.003 that are not reimbursed or reimbursable under that section.” Section 408.127(b) provides that “[t]he insurance carrier shall remit the amount of a reduction under this section to the employer who made the payments.”

Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 129.1 (Rule 129.1) defines “salary continuation” as monies paid by the employer to compensate the injured employee for wages lost as a result of a compensable injury and “salary supplementation” as monies paid by the employer to supplement the amount of income benefits an insurance carrier pays to an injured employee. This rule’s title qualifies these definitions by the phrase “unless the context clearly indicates otherwise.” Rule 129.7(a), Non-Reimbursable Employer Payments, provides that an employer “who pays an injured [worker] salary continuation is not entitled to and shall not seek reimbursement from the employee or the insurance carrier” and Rule 129.7(b) provides that an employer “who pays an employee salary supplementation to supplement income benefits paid by the carrier is not entitled to and shall not seek reimbursement from the employee or the carrier.”

In construing these statutes and rules, the hearing officer determined that the (self-insured) employer’s payments to the claimant were “salary supplementation” and reimbursable from IIBs under Section 408.127. Addressing what the hearing officer perceived as an apparent conflict between Section 408.127 and Rule 129.7(b), the hearing officer posits that these apparently conflicting provisions can be reconciled if Rule 129.7 is understood to be referencing reimbursement from TIBs since the employer is not entitled to reimbursement of salary supplementation from TIBs.

We find that the hearing officer has committed legal error in failing to consider and apply certain other statutory provisions. In Texas Workers' Compensation Commission Appeal No. 931084, decided January 12, 1994, a case involving a work-related injury to a fireman employed by another city, the hearing officer determined that the (self-insured) city had not proven a basis for reducing the fireman’s IIBs for any amount by which it had supplemented his TIBs and that the fireman had not requested a salary supplement nor entered into an agreement to authorize a reduction of his IIBs. In affirming this determination, however, the Appeals Panel noted that the (self-insured) city did not even mention the statute directly applicable, namely, Section 504.001 et seq., relating to (self-insured) political subdivisions; and that, notwithstanding that Section 504.002 incorporates Sections 408.003 and 408.127, Section 504.051(a)(1)(A) provides as follows:

504.051.OFFSET AGAINST PAYMENTS FOR INCAPACITY.

1. (a)Benefits provided under this chapter shall be offset:

   (1)to the extent applicable, by any amount for incapacity received as provided by:

   (A)Chapter 143, Local Government Code . . . 

V. T. C. A., Local Government Code, Section 143.073 provides, in part, as follows:

A municipality shall provide to a fire fighter or police officer a leave of absence for an illness or injury related to the person’s line of duty. The leave is with full pay for a period commensurate with the nature of the line of duty illness or injury. If necessary, the leave shall continue for at least one year.

Our decision in Appeal No. 931084 stated the following:

In short, the legislature expressly noted its awareness of special provisions relating to police officers and fire fighters, and expressly directed how offsets and credits, if any, would be handled in such a situation. We believe these specific provisions prevail over any general and inconsistent provisions in [Section] 408.003. There is certainly no reason to imply a purpose contrary to express language in Sections 408.003 and 408.127 that allows for IIBs reduction only if there is a written agreement or request from the employee to supplement.

Section 504.051(a)(1)(A) makes clear, in our opinion, that the two classes of employees injured in the line of duty who are entitled to paid leave under Section 143.073 of the Local Government Code may not “double dip” and receive full pay plus full workers’ compensation income benefits for the period of leave. Whatever is paid out of the municipality’s accounts for both civil service leave and workers’ compensation income benefits may not exceed the pre-injury weekly wage, and it is the amount paid under Chapter 143 of the Local Government Code which is reduced, not the workers’ compensation benefits. See Angelina County v. Modisette, 667 S.W.2d 881 (Tex. App.-Beaumont 1984, no writ). The offset provision in the workers’ compensation law applicable to political subdivisions was added in 1975, as Section 5(a) to TEX. REV. CIV. STAT. ANN. Article 8309(h), and changed what had been previously the law, that payment could be received under both the workers’ compensation laws and civil service laws with no offset against either. Note City of Corpus Christi v. Herschbach, 536 S.W.2d 653, 657 (Tex. Civ. App.-Corpus Christi 1976, writ ref’d n.r.e.) [giving prospective effect only to offset provision of Article 8309(h)]. We find no authorization in the statutes cited above, as a whole, for the carrier to obtain a double offset by reducing the amount of IIBs paid after the leave period ends. To allow this would go beyond the offset expressly authorized by Section 504.051, and could effectively read the full leave pay accorded to police officers and fire fighters in Section 143.073 of the Local Government Code out of existence.

Section 143.073(a) of the Local Government Code was considered in Texas Attorney General Opinion No. JC-0144, dated November 16, 1999 (the Opinion), in the context of a dispute between a certain Texas city and a member of its police force injured in the line of duty, who was off duty for nine weeks and who received both his regular paycheck and, though not his fault, a workers’ compensation income benefits check to which he was not entitled and which he returned. The city’s view was that if the payment of the officer’s salary could be construed as, in some measure, nontaxable workers’ compensation benefits, it could save the tax on that portion of the payment and it sought to recoup such tax benefits from the police officer. The Opinion, commenting that the city has misconstrued the statutory framework involved, stated that “[t]he statutes which must be read together to resolve the issue in this case are not sections 143.073(a) of the Local Government Code and 408.003(a)(2) of the Labor Code, but rather section 143.073(a) and section 504.051(a)(1)(A) of the Labor Code.” The Opinion also stated the following:

We note first that any such construction of the payments, even could it have been effective, would have required the consent of the officer, as the supplemental benefits provision requires “the written request or agreement of the employee.” Id. § 408.003(a)(2). However, we do not believe such a construction is possible, because any workers’ compensation payments to which the officer might have been entitled would already have been offset by section 504.051 of the Labor Code, which provides in relevant part that:

1. (a)Benefits provided under this chapter shall be offset:

2. (1)to the extent applicable, by any amount for incapacity received as provided by:

(A)Chapter 143, Local Government Code; . . .

. . . ; and

(2)by any amount paid under Article III, Section 52e, of the Texas Constitution, as added in 1967.

Id. § 504.051 (emphasis added). Chapter 143, and specifically section 143.073(a), governs payments to municipal fire and police employees injured in the line of duty. Article III, section 52e “as added in 1967”-–a phrase intended to distinguish this section from another so designated which concerns the issuance of road bonds by Dallas County—provides that any county or precinct law enforcement official who is injured in the line of duty is to be paid “his maximum salary” while hospitalized or incapacitated. TEX. CONST. art. III, § 52e. The section is thus parallel to section 143.073 of the Local Government Code.

See also, OP. Atty. Gen. 1999, No. JC-0040 regarding use of annual leave by state employees receiving workers’ compensation benefits and Tex. Atty. Gen. LO-93-62 discussing adoption of offset provision now codified as Section 504.051(a)(2).

The decision and order of the hearing officer are reversed and the case is remanded for further consideration and for such additional factual findings and legal conclusions as may be appropriate and consistent with this 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 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 Commission's Division of Hearings, pursuant to Section 410.202, which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See Texas Workers' Compensation Commission Appeal No. 92642, decided January 20, 1993.

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

SA

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Philip F. O'Neill

CONCUR:

Daniel R. Barry
Appeals Judge

Thomas A. Knapp
Appeals Judge

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

DECISION

Affirmed in part, reversed and rendered in part.

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

ENTITLEMENT TO REIMBURSEMENT UNDER

SECTION 408.003

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

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

After an injury, an employer may:

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

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

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

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

(d)Employer payments made under this section:

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

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

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

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

ENTITLEMENT TO FILE A CLAIM AS SUB-CLAIMANT

UNDER SECTION 409.009

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

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

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

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

Kenneth A. Huchton
Appeals Judge

Concur:

Elaine M. Chaney
Appeals Judge

Robert W. Potts
Appeals Judge