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 20, 2003. With regard to the sole disputed issue, the hearing officer determined that death benefits are payable to the respondent (Subsequent Injury Fund (SIF)) and ordered that the appellant (self-insured) calculate and pay death benefits in a lump sum in accordance with the decision, 1989 Act, and Texas Workers’ Compensation Commission (Commission) rules. The self-insured appeals, seeking a determination of the specific amount owed. The appeal file does not contain a response from the SIF.

DECISION

Affirmed as reformed.

The self-insured does not dispute that death benefits are payable to the SIF. Instead, the carrier complains that the hearing officer erred by failing to determine the specific amount owed pursuant to the version of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 132.10 (Rule 132.10), effective on January 1, 1991. In a recent decision, however, we concluded that the version of Rule 132.10, effective March 13, 2000, was applicable to hearings after its effective date. Texas Workers’ Compensation Commission Appeal No. 031519, decided July 25, 2003. The amended rule does not require a Commission order to specify the amount of death benefits to be paid. See Id. Accordingly, we will not reverse the hearing officer’s decision on this basis.

The self-insured also complains of language in the decision and order which appears to require the payment of interest on accrued benefits, while precluding the applicability of a discount rate. The hearing officer’s decision provides:

DECISION

Death benefits are to be paid in a lump sum to the [SIF]. The payment is based on a weekly payment of $418.40. The interest/discount rate is 4.74%. The entitlement to death benefits began to accrue on November 22, 1996. The amount of the discount continues to diminish until the payment is made.

ORDER

Carrier is ordered to calculate and pay death benefits to the [SIF] in a lump sum in accordance with this decision, the Texas Workers’ Compensation Act and the Commission’s Rules.

In view of our decision above and given the issue presented, we do not believe that the hearing officer was required to decide the amount of interest owed, if any, or the applicability of a discount rate. The hearing officer’s directive that payment to the SIF be made in accordance with the 1989 Act and Commission rules gives the self-insured sufficient instruction to ensure compliance with the order. Accordingly, we reform the hearing officer’s decision and order to state only that the self-insured is required to pay death benefits to the SIF in accordance with the 1989 Act and Commission Rules.

The decision and order of the hearing officer are affirmed.

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

COUNTY JUDGE

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Edward Vilano
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 21, 2003. With regard to the sole disputed issue, the hearing officer determined that the appellant (self-insured) is liable for payment of death benefits to the respondent (Subsequent Injury Fund (SIF)). The hearing officer ordered that death benefits are to be paid in a lump sum to the SIF, and that the self-insured is ordered to calculate and pay death benefits in accordance with the 1989 Act and Texas Workers’ Compensation Commission (Commission) rules. The self-insured appealed. The appeal file does not contain a response from the SIF.

DECISION

Affirmed.

On appeal, the self-insured does not dispute that it owes death benefits to the SIF; rather, it asserts that the case should be remanded to the hearing officer to determine the specific amount it owes pursuant to the version of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 132.10 (Rule 132.10) effective on July 22, 1996. However, the current version of Rule 132.10, amended, effective March 13, 2000, does not require a Commission order to specify the amount of death benefits to be paid. Absent a provision in either version of Rule 132.10 specifying that the appropriate version to be applied is dictated by the date of death, we cannot agree that the hearing officer erred in applying the version of the rule that was effective on the date of the hearing. Accordingly, the hearing officer did not err in failing to specify the amount that the self-insured is required to pay to the SIF.

The self-insured additionally asserts that interest should not accrue prior to the date of the Commission’s order; however, we note that the hearing officer did not order that accrued interest from the date of death be included in the lump sum payment to the SIF. The self-insured also argues that it is entitled to the annually compounded discount rate established under Section 401.023. We do not believe that given the issue presented for resolution, the hearing officer was required to make specific findings relating to the amount of interest. The hearing officer’s directive that payment to the SIF be made in accordance with the 1989 Act and Commission rules gives the self-insured sufficient instruction to ensure compliance with the order.

The decision and order of the hearing officer are affirmed.

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

COUNTY JUDGE

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Chris Cowan

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 (CCH) was held on August 18, 1999. Although the hearing officer's decision does not state the issue, based on the record and appellant's (carrier) appeal, the issue announced was:

What is the correct amount to pay to the Subsequent Injury Fund [SIF] for decedent's death benefits?

After a very brief CCH, the hearing officer determined that the maximum weekly death benefit was $491.00, the discount/interest rate was 4.89% and that "[d]eath benefits began to accrue the day after [d]ecedent's death, (date of injury)." The hearing officer's decision was as follows:

Death benefits are to be paid in a lump sum to the [SIF]. The payment is based on a weekly payment of $311.54. The interest/discount rate is 4.89%. The [SIF] is entitled to receive death benefits beginning June 12, 1999, the day the last beneficiary ceased to be eligible for death benefits. The [SIF] at that time was eligible to received [sic] death benefits for 250 weeks and 1 day. (Benefits were paid to the beneficiaries for 113 weeks and 6 days for the period date of injury through (end of allowed time). As of the date of this hearing $2,110.82 in weekly death benefits and $7.01 in interest had accrued. As of the date of this hearing $58,480.51 had not accrued and remained for future weekly payments. As of the date of this hearing the discounted value of $58,480.51 at a discount rate of 4.89% was $52,100.28. As of the date of this hearing the lump sum owed to the [SIF] was $54,218.11. Interest continues to accrue on both the death benefits due as of the date of this hearing and the death benefits that will accrue until the day payment is made. The amount of the discount continues to diminish until the day payment is made.

Carrier timely appealed that decision, asserting that the hearing officer had failed to credit the carrier for the 104-week death benefit lump sum of $24,299.60 paid by carrier to decedent's spouse pursuant to Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 132.7(b) (Rule 132.7(b)), and that the $58,480.51 "accrued and remained for future weekly payments" amount was incorrect. Carrier requested that we reverse the hearing officer's decision, giving carrier credit for the $24,299.60 paid to the decedent's spouse and render "a decision that correctly computes the amount [carrier] owes the [SIF]."

That appeal, although logged in to the Texas Workers' Compensation Commission (Commission) Hearings Division, was never forwarded to the Appeals Panel for resolution. Instead, the file has what is labeled an "Order on Commission's Motion to Correct Clerical Error," which recites that the original hearing officer had made a "clerical error" and that the "decision does not include the correct amounts payable by the Carrier to the [SIF]." (We also note that the Appeals Panel does not have the "Motion to Correct Clerical Error.") The order then goes on to say that the original "Decision and Order is modified in pertinent part to read as follows":

DECISION

Death benefit[s] are to be paid in a lump sum to the [SIF]. The payment is based on a weekly payment of $311.54. The interest/discount rate is 4.89%. The entitlement to death benefits began to accrue on June 12, 1999. As of the date of this hearing $3115.40 in weekly death benefits and $12.46 in interest had accrued. As of the date of this hearing $74,814.11 had not accrued and remained for future weekly payments. As of the date of this hearing, the discounted value was $66,947.73. As of the date of this hearing, the lump sum owed to the [SIF] was $70,075.59. Interest continues to accrue on both the death benefits due as of the date of this hearing and the death benefit[s] that will accrue until the day payment is made. The amount of the discount continues to diminish until the day payment is made.

The modified order was dated September 24, 1999, effective June 24, 1999, and was signed by the Director, Division of Hearings. The order was receipted for by the carrier on September 28, 1999. An internal memo, dated October 4, 1999 (in the appeal file, but obviously not part of the record), notes that "the computation of the amount paid to the SIF did not take into consideration the fact that the carrier was required to pay the spouse an additional 104 weeks of benefits after the date of the remarriage."

Carrier filed a "Request for Review on Corrected Decision" on October 7, 1999, asserting that the "Corrected Order . . . erroneously changed a factual determination by converting the amount of the average weekly wage into the amount of the weekly death benefit" and that the "Corrected Order" compounded the problem by not using the reduced death benefit amount in calculating the amounts due the SIF; that the corrected order incorrectly counted dates, and still failed to credit carrier with the widow's lump sum payout.

Carrier, in its October 5, 1999, appeal, purported to do the correct calculations; however, we have no record, nor any evidence, to verify the amounts represented by carrier. Carrier further requests that we render a decision that orders the SIF to reimburse overpayments, if any, made by the carrier.

DECISION

We reverse the hearing officer's decision and order, and the corrected order, and remand the case back to the hearing officer to convene a hearing on remand, to receive evidence and documentation of the correct figures to be used, and render a new decision using the correct weekly death benefit amount, calculate and credit carrier for the sums paid the decedent's widow, correctly calculate and reference the amount owed to the SIF, including discount and interest, and determine whether any overpayments have been made. See Sections 408.181 through 408.186 and applicable rules.

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. See Texas Workers' Compensation Commission Appeal No. 92642, decided January 20, 1993.

Thomas A. Knapp
Appeals Judge

CONCUR:

Joe Sebesta
Appeals Judge

Tommy W. Lueders
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 April 19, 1999. The issue involved whether the appellant (carrier), a risk pool for municipal entities through which the self-insured city is insured, shall pay benefits to the respondent (subsequent injury fund (SIF)). The facts were stipulated, and it was undisputed that the deceased, a police officer with the self-insured city, died in the course and scope of employment. It was represented that he had been abandoned by a spouse for more than a year at the time of his death, and that there were no eligible beneficiaries.

The self-insured's sole argument was that the laws and rules requiring it to pay death benefits into the SIF were unconstitutional. The hearing officer held that the Texas Workers' Compensation Commission (Commission) was without authority to declare laws of the state unconstitutional, and rendered an order requiring such payment to the SIF.

The carrier has not appealed the merits of the compensability of the death or the lack of any beneficiaries. Rather, it seeks a declaration from the Appeals Panel that certain statutes and rules are unconstitutional. The SIF responds that the agency is without authority or jurisdiction to render such an order, and the order for payment should therefore be affirmed.

DECISION

The order to pay the SIF is affirmed. The Appeals Panel is without jurisdiction to seek the relief requested by the carrier.

The matter has been ably briefed by both sides. Essentially, the carrier contends that it cannot constitutionally be required to pay monies of a political subdivision into a fund that may result in payment to persons who are not residents or employees of the political subdivision. It argues that Sections 403.007 and 408.162 cannot constitutionally be applied to political subdivisions, as this would violate Article III, ' 52 of the Texas Constitution, and that rules of the Commission that are set forth in 28 TEX. ADMIN. CODE § 132.10, 132.11, and 132.12 cannot constitutionally be applied for similar reasons. The SIF responds that the association that is challenging the order is not a carrier and does not have standing. The SIF further argues that the sections in question are not violated because of another constitutional provision.

An action for declaratory judgment setting forth similar legal arguments was brought in the 53rd District Court, Travis County, by the association for the carrier in this case, and a decision issued on January 6, 1999, finding favorable to the carrier's position. This decision was appealed to the Third Court of Appeals in (City), which last week found that the statutes in question were constitutional, and that the district court erred in finding to the contrary. Texas Workers' Compensation Commission and Subsequent Injury Fund v. Texas Municipal Intergovernmental Risk Pool (Docket No. 03-98-00169-CV), decided June 17, 1999.

We agree with the hearing officer and the SIF that the Commission cannot grant the sole relief requested in this appeal. Accordingly, we affirm the order against the self-insured to pay accrued death benefits to the SIF.

For these reasons, we affirm the hearing officer's decision and order.

Susan M. Kelley
Appeals Judge

CONCUR:

Joe Sebesta
Appeals Judge

Alan C. Ernst
Appeals Judge