This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 29, 2020, with the record closing February 13, 2020, in (city), Texas, with (administrative law judge), presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant’s (claimant) average weekly wage (AWW) is $575.95; (2) benefits began to accrue on May 17, 2016; (3) the claimant had disability from February 8, 2016, through July 20, 2017, but did not have disability from July 21 through December 4, 2017, or from December 5, 2017, through February 20, 2018; (4) the claimant was not a seasonal employee; and (5) the claimant’s injury protection payments under his Collective Bargaining Agreement for the 2016-2017 NFL season do not constitute post-injury earnings.

The claimant appealed the ALJ’s determinations on AWW, benefits accrual date, and the periods of disability that were not favorable to him. The respondent (carrier) responded, urging affirmance. The ALJ’s determinations that the claimant was not a seasonal employee and that the claimant’s injury protection payments under his Collective Bargaining Agreement for the 2016-2017 NFL season do not constitute post-injury earnings were resolved by stipulation of the parties at the CCH, were not appealed, and have become final pursuant to Section 410.169.

DECISION

Affirmed in part, reversed by striking in part, and reversed and rendered in part.

The parties stipulated, in part, that on (date of injury), the claimant was the employee of (employee), and that the claimant sustained a compensable injury on that date. The claimant testified he injured his left knee during training camp.

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

AWW

The ALJ’s determination that the claimant’s AWW is $575.95 is supported by sufficient evidence and is affirmed.

DISABILITY

It was undisputed that prior CCHs in this case with a different ALJ were held on December 4, 2017, and January 30, 2018, with the record closing on February 13, 2018, over the issue of disability, among other issues. The ALJ issued a decision signed on February 20, 2018, in which she determined, in pertinent part, that the claimant did not have disability from (date of injury), through the date of the CCH. The claimant timely appealed the ALJ’s decision to the Appeals Panel. A written decision by the Appeals Panel on the claimant’s appeal was not issued by the 45th day after the response was due or filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division); therefore, the ALJ’s decision that the claimant did not have disability from (date of injury), through the date of the CCH became final and is the final decision of the Appeals Panel pursuant to Section 410.204(c) and 28 TEX. ADMIN. CODE § 143.5(b) (Rule 143.5(b)).

The Appeals Panel decision was then appealed to district court. In evidence is a district court final judgment filed December 5, 2019, in which it was ordered, adjudged, and decreed by the court, in pertinent part, that the claimant had disability from February 8, 2016, through July 20, 2017. The record reflects the carrier has appealed the district court judgment.

Section 410.205(b) provides that the decision of the Appeals Panel regarding benefits is binding during the pendency of an appeal under Subchapter F or G (relating to Judicial Review). In Lopez v. Texas Workers’ Comp. Ins. Fund, 11 S.W.3d 490 (Tex. App.–Austin 2000, pet. denied), the court held that Section 410.205(b) clearly provides that the ultimate administrative ruling, whether granting or denying benefits, remains in effect until overturned by a final and enforceable judicial decision. The claimant in Lopez argued that the decision of the Appeals Panel denying benefits remains in effect only until the district court renders a decision, but that the trial court’s decision awarding benefits then becomes effective without regard to further appellate review. The court disagreed, noting that the text of the Labor Code did not support the claimant’s interpretation. The court noted that the claimant would have the district court’s decision enforced even though it is not yet final and still on appeal, and that “[n]owhere does the statute expressly provide for such an outcome.” The court in Lopez stated “[w]e believe the statute as written reflects the State’s policy that benefits should be payable or not in accordance with the [A]ppeals [P]anel’s decision until a final judicial decision rules otherwise.”

The Appeals Panel’s prior decision that the claimant did not have disability from (date of injury), through the date of the CCH is binding until there is a final, non-appealable judgment in this case. See Appeals Panel Decision 142336, decided December 5, 2014.

In the case on appeal the carrier contended at the CCH that the Appeals Panel’s decision that the claimant did not have disability from (date of injury), through the date of the prior CCH is binding on the ALJ. The carrier is correct. Pursuant to Section 410.205(b), the decision that the claimant did not have disability from (date of injury), through the date of the CCH is binding, and the Division does not have jurisdiction to reconsider the issue of disability from (date of injury), through February 13, 2018, the date the record closed in the prior CCH. Given that the Division does not have jurisdiction to make a new determination on disability from (date of injury), through February 13, 2018, the ALJ erred in making some of his disability determinations.

The ALJ found that pursuant to the judgment in this case, the claimant had disability from February 8, 2016, through July 20, 2017, and therefore determined that the claimant had disability for that period. Because the Division does not have jurisdiction to reconsider this period of disability, we reverse the ALJ’s decision by striking the determination that the claimant had disability from February 8, 2016, through July 20, 2017.

The ALJ also determined that the claimant did not have disability from July 21 through December 4, 2017. Because the Division does not have jurisdiction to reconsider this period of disability, we reverse the ALJ’s decision by striking the determination that the claimant did not have disability from July 21 through December 4, 2017.

The ALJ also determined that the claimant did not have disability from December 5, 2017, through February 20, 2018. The Division does not have jurisdiction to reconsider disability from (date of injury), through February 13, 2018. We therefore reverse the ALJ’s decision by striking that portion of the determination that the claimant did not have disability from December 5, 2017, through February 13, 2018.

Section 410.207 provides that during judicial review of an Appeals Panel decision on any disputed issue relating to a workers’ compensation claim, the Division retains jurisdiction of all other issues related to the claim. The issue of disability from February 14 through February 20, 2018, has not been litigated or determined by the Division prior to this CCH. Therefore, the Division does have jurisdiction to determine disability for that period. That portion of the ALJ’s determination that the claimant did not have disability from February 14 through February 20, 2018, is supported by sufficient evidence and is affirmed.

ACCRUAL DATE

The ALJ found that the claimant’s first day of disability was May 9, 2016, which was the day after his termination, and that the eighth day of disability was May 17, 2016. The ALJ therefore determined that benefits began to accrue on May 17, 2016. We note the evidence reflects the claimant was terminated on May 9, 2016, not May 8, 2016, as indicated by the ALJ in his finding of fact.

Section 408.082(a) provides that income benefits may not be paid for an injury that does not result in disability for at least one week. Rule 124.7(a) provides in part that “accrual date” means the day an injured worker’s income benefits begin to accrue, and that “day of disability” means a day when the worker is unable to obtain and retain employment at wages equivalent to the pre-injury wage because of a compensable injury. Rule 124.7(b) provides that an injured worker’s accrual date is the worker’s eighth day of disability.

The Appeals Panel’s decision that the claimant did not have disability from (date of injury), through February 13, 2018, is binding pursuant to Section 410.205(b), and we have affirmed that portion of the ALJ’s determination that the claimant did not have disability from February 14 through February 20, 2018. The claimant has not sustained disability for at least one week. Pursuant to Section 408.082(a), the claimant is not entitled to be paid temporary income benefits (TIBs) for the compensable injury; therefore, there is no accrual date for TIBs in this case. Accordingly, we reverse the ALJ’s determination that benefits began to accrue on May 17, 2016, and we render a new decision that there is no accrual date for TIBs in this case.

SUMMARY

We affirm the ALJ’s determination that the claimant’s AWW is $575.95.

We reverse the ALJ’s decision by striking the determination that the claimant had disability from February 8, 2016, through July 20, 2017.

We reverse the ALJ’s decision by striking the determination that the claimant did not have disability from July 21 through December 4, 2017.

We reverse the ALJ’s decision by striking that portion of the determination that the claimant did not have disability from December 5, 2017, through February 13, 2018.

We affirm that portion of the ALJ’s determination that the claimant did not have disability from February 14 through February 20, 2018.

We reverse the ALJ’s determination that benefits began to accrue on May 17, 2016, and we render a new decision that there is no accrual date for TIBs in this case.

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

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
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 20, 2017, with the record closing on August 2, 2017, in (city), Texas, with (administrative law judge) presiding as administrative law judge (ALJ). Prior to issuing a Decision and Order in this case, (administrative law judge) ceased to be an ALJ with the Texas Department of Insurance, Division of Workers’ Compensation (Division) and the case was reassigned to another ALJ, (administrative law judge), to listen to the CCH recording, review the evidence, and write a decision to resolve the issues in dispute. ALJ (ALJ) resolved the disputed issues by deciding that: (1) the respondent/cross-appellant (claimant) is a seasonal employee and his adjusted average weekly wage (AWW) is $0.00 from January 4 through April 19; $735.71 from April 20 through June 18; $0.00 from June 19 through July 26; $1,800.00 from July 27, 2015,^[1] through September 6; and $43,823.53 from September 7 through January 3 of the following year; and (2) that the claimant had disability resulting from the compensable injury of (date of injury), for the period beginning on January 11, 2016, and continuing through December 12, 2016.

The appellant/cross-respondent (carrier) appealed the ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), from August 31, 2016, through December 12, 2016, and complains further that the ALJ erred in referencing the year 2015 in Conclusion of Law No. 3 when the year cited in such conclusion of law should, in fact, be 2016. The claimant responded, urging affirmance of the ALJ’s disability determination only.

The claimant appealed the ALJ’s determination that the claimant is a seasonal employee as contrary to the great weight of the evidence. The carrier responded, urging affirmance of that portion of the ALJ’s decision determining that the claimant is a seasonal employee.

DECISION

Affirmed as reformed in part and reversed and rendered in part.

SEASONAL EMPLOYEE

It is undisputed that the claimant sustained injury to his left knee on (date of injury), for which he underwent surgery on (date of surgery), including an anterior cruciate ligament reconstruction, medial meniscus repair and lateral meniscus repair. At the time of his injury, the claimant was employed as a professional football player by the (employer), playing as a member of the (football team). He was employed by contract, the term of which was from March 1, 2015, through February 29, 2016. The claimant had previously been employed by (employer) under a four-year contract beginning March 1, 2011, and continuing through February 28 or 29, 2015. The claimant’s annual salary during the periods he was employed by (employer) was paid in 17 weekly installments during the regular football season. The claimant received additional payments during the offseason for his attendance at team-sponsored “Mini Camps,” offseason workout programs, and training camp.

From a review of the Discussion section of his Decision and Order, it is apparent that the ALJ based his decision that the claimant was a seasonal employee under Section 408.043(d) on his understanding that the claimant played football during the regular football season but was not required to attend mini camps and offseason workout programs, which were voluntary, and “was free to devote his time to non-football related activities outside of training camp and the regular season. . . .”

Section 408.043(d) defines seasonal employee as “an employee who, as a regular course of the employee’s conduct, engages in seasonal or cyclical employment that does not continue throughout the entire year.” 28 TEX. ADMIN. CODE § 128.5(a) (Rule 128.5(a)) defines seasonal employee as "an employee who as a regular course of conduct engages in seasonal or cyclical employment which may or may not be agricultural in nature, that does not continue throughout the year."

The claimant testified that, although mini camps and offseason organized training activities were technically voluntary programs, participation in such programs was vitally important in the competitive atmosphere of professional football. He further testified, and the documentary evidence supported, that his annual contract required, both during the football season and offseason, that he maintain himself in excellent physical condition subject to examination and/or testing at the discretion of the team; that he devote at least four hours of service on the (Web Site) during each month of the contract term; that he provide a minimum of eight charitable or public relations related events, such as speaking engagements and personal appearances, during the year; and that he provide autographed items and memorabilia for charitable or public relations use by the team. The claimant further testified, among other things, that he was not allowed to engage in dangerous activities such as skydiving; that he was not allowed to engage in football related activities not related to the team; that he was required to conduct himself on and off the field with recognition of the fact that the success of professional football depends on public respect; that he was required to cooperate with the news media; and even that he was prohibited from ingesting some legal substances contained in various foods.

We hold under the facts of this case that the claimant was required by his contract to further the business affairs of the employer throughout the term of the contract, which began on March 1, 2015, as well as the previous four-year contract, the term of which began on March 1, 2011. Although the claimant received payment of his annual salary in 17 weekly installments during the football season, the evidence fails to demonstrate a pattern of seasonal, cyclical employment that supports the ALJ’s findings in this regard. The decision of the ALJ that the claimant is a seasonal employee is contrary to the great weight and preponderance of the evidence and, for such reason, no adjustment to the claimant’s AWW should apply. We accordingly reverse the decision of the ALJ that the claimant is a seasonal employee and render a new decision that the claimant is not a seasonal employee. Because we have held that the claimant is not a seasonal employee, we reverse the decision of the ALJ that the claimant’s adjusted AWW is $0.00 from January 4 through April 19; $735.71 from April 20 through June 18; $0.00 from June 19 through July 26; $1,800.00 from July 27, 2015, through September 6; and $43,823.53 from September 7 through January 3 of the following year and render a new decision that because the claimant is not a seasonal employee, his AWW shall not be adjusted.

DISABILITY

An issue regarding disability was certified by the benefit review officer for resolution at the CCH as follows:

Did the [c]laimant have disability resulting from the compensable injury of (date of injury), and if so, for what period(s)?

At the CCH conducted on July 20, 2017, the parties agreed on the record to revise and restate the issue as follows:

Did [the] [c]laimant have disability resulting from the compensable injury of (date of injury), from January 10, 2016, through December 12, 2016?

In his Decision and Order signed on December 19, 2017, the ALJ recites the disability issue as follows:

Did [the] [c]laimant have disability resulting from the compensable injury of (date of injury), from January 11, 2016, through December 12, 2016?

In Finding of Fact No. 7, the ALJ found as follows:

7.As a result of his compensable knee injury, [the] [c]laimant was unable to obtain and retain employment at wages equivalent to his preinjury wage from January 10, 2016, through December 13, 2016.

In Conclusion of Law No. 4, the ALJ found as follows:

4.[The] [c]laimant had disability resulting from the compensable injury of (date of injury), for the period beginning on January 11, 2016, and continuing through December 12, 2016.

The evidence is sufficient to support a determination that the claimant had disability from January 10, 2016, through December 12, 2016, the period of claimed disability agreed upon and included in the issue as amended by the parties at the CCH on July 20, 2017.

Clearly, the ALJ simply failed to include January 10, 2016, as the beginning date of disability as reflected by the evidence and the disability issue agreed upon by the parties in his Conclusion of Law No. 4, Decision, and in the first paragraph of the Decision and Order.  We accordingly reform Conclusion of Law No. 4, the Decision section and the first paragraph of the Decision and Order to provide that the claimant had disability resulting from the compensable injury of (date of injury), for the period beginning on January 10, 2016, and continuing through December 12, 2016, and we affirm the ALJ’s disability determination as reformed.

SUMMARY

We reverse the ALJ’s determination that the claimant is a seasonal employee and render a new decision that the claimant is not a seasonal employee.

We reverse the ALJ’s determination that the claimant’s adjusted AWW is $0.00 from January 4 through April 19; $735.71 from April 20 through June 18; $0.00 from June 19 through July 26; $1,800.00 from July 27, 2015, through September 6; and $43,823.53 from September 7 through January 3 of the following year and we render a new decision that because the claimant is not a seasonal employee, his AWW shall not be adjusted.

We affirm as reformed the ALJ’s disability determination that that the claimant had disability resulting from the compensable injury of (date of injury), for the period beginning on January 10, 2016, and continuing through December 12, 2016.

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

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

1. The reference to the year 2015 is in error. All AWW adjustments determined by the ALJ are for the year 2016, except for the period from January 1 through January 3, 2017.

   ↑

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) on (Docket No. 1) was held on August 20, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. A CCH on (Docket No. 2) and a continuation of Docket No. 1 was held on October 11, 2012, and both dockets were continued on December 7, 2012, February 7, 2013, with the record closing on April 9, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue in Docket No. 1 by deciding that [Dr. Y] was appointed as the designated doctor to examine the appellant (claimant) on September 4, 2012, in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 127.5 (Rule 127.5). The hearing officer resolved the disputed issues in Docket No. 2 by deciding that: (1) the compensable injury of [date of injury], extends to a cervical strain but does not extend to post-traumatic headaches, left thigh strain, post-traumatic neurobehavioral disorder, suboccipital neuritis, cervical sprain, thoracic sprain/strain, lumbar sprain/strain, depression, anxiety, adjustment disorder, syncope, or collapse; (2) the claimant reached maximum medical improvement (MMI) on November 9, 2012; (3) the claimant’s impairment rating (IR) is zero percent; and (4) the claimant’s average weekly wage (AWW) for the purpose of computing temporary income benefits (TIBs) between June 1, 2012, and August 19, 2012, is $0.00 pursuant to Section 408.0446(b) and Rule 128.7(d).

The claimant appealed, disputing the hearing officer’s extent-of-injury determinations that were unfavorable to her. The claimant also appealed the hearing officer’s determinations of MMI and IR. The respondent (self-insured) responded, urging affirmance of the disputed determinations.

The hearing officer’s determination in Docket No. 1, that Dr. Y was appointed as designated doctor to examine the claimant on September 4, 2012, in accordance with Section 408.0041 and Rule 127.5 was not appealed and has become final pursuant to Section 410.169. The hearing officer’s determinations that the compensable injury extends to a cervical strain and that the claimant’s AWW for the purpose of computing TIBs between June 1, 2012, and August 19, 2012, is $0.00 pursuant to Section 408.0446(b) and Rule 128.7(d) were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that: (1) on [date of injury], the claimant sustained a compensable injury; (2) Dr. Y was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine MMI, IR, and extent of the compensable injury; and (3) the compensable injury extends to a head contusion and left thigh contusion.

The claimant alleges in her appeal that it was error for the hearing officer not to send a letter of clarification to Dr. Y on the issue of extent of injury. We find no error in the hearing officer’s decision not to send a letter of clarification to Dr. Y regarding the extent of the injury.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury does not extend to post-traumatic headaches, left thigh strain, post-traumatic neurobehavioral disorder, suboccipital neuritis, cervical sprain, thoracic sprain/strain, lumbar sprain/strain, depression, anxiety, adjustment disorder, syncope, or collapse is supported by sufficient evidence and is affirmed.

MMI/IR

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.”  Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Division shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.  Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  Rule 130.1(c)(3) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

In the Background Information portion of his decision the hearing officer stated that Dr. Y rated the compensable injury and provided a reasonable explanation for the choice of MMI date. The hearing officer found that “Dr. [Y] certified the claimant reached [MMI] on November 9, 2012, with a [zero percent] [IR]; this certification is not contrary to the preponderance of the other medical evidence.” The hearing officer’s finding that the certification from Dr. Y is not contrary to the preponderance of the evidence is supported by sufficient evidence and is affirmed. However, Dr. Y examined the claimant on November 9, 2012, and certified that the claimant reached MMI on June 10, 2011, considering the cervical strain, head contusion and left thigh contusion. The hearing officer mistakenly determined that the claimant reached MMI on the date of the examination, November 9, 2012, from Dr. Y rather that the actual date of MMI certified by Dr. Y, June 10, 2011. There is no certification in evidence with an MMI date of November 9, 2012. Accordingly, we reverse the hearing officer’s determination that the claimant reached MMI on November 9, 2012, and render a new decision that the claimant reached MMI on June 10, 2011, to conform to the evidence. See Appeals Panel Decision (APD) 121042, decided July 26, 2012, and APD 100661, decided July 16, 2010.

The hearing officer’s determination that the claimant’s IR is zero percent is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury does not extend to post-traumatic headaches, left thigh strain, post-traumatic neurobehavioral disorder, suboccipital neuritis, cervical sprain, thoracic sprain/strain, lumbar sprain/strain, depression, anxiety, adjustment disorder, syncope, or collapse.

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

We reverse the hearing officer’s determination that the claimant reached MMI on November 9, 2012, and render a new decision that the claimant reached MMI on June 10, 2011.

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].

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 6, 2004. The hearing officer determined that the respondent (claimant) is not entitled to reimbursement of travel expenses for receiving medical treatment at the direction of Dr. G. The hearing officer also determined that the claimant’s average weekly wage (AWW) for the purpose of computing temporary income benefits (TIBs) between May 27 and August 9, 2004, is $400.00. The nonentitlement to travel expenses for medical treatment was not appealed and has become final pursuant to Section 410.169. The appellant (self-insured) appeals the AWW determination, asserting that the necessary issue of what the claimant’s reasonable expectation of summer earnings was, was not before the hearing officer and that he failed to make a necessary finding of fact. The self-insured also appeals on sufficiency of the evidence grounds. There is no response from the claimant in the file.

DECISION

Affirmed.

The claimant, a school teacher with the self-insured, sustained a compensable injury on ______________. The claimant testified that she has been a teacher for 14 years and has always worked in the summer sessions except for 2001, 2003, and 2004. She had intended to work in 2001 but was injured just prior to the summer session. In 2003, she was transitioning from a different school district to the self-insured. She said that she would have worked the session of 2004 but for her injury. She also testified that the reason that she did not apply for the summer 2004 job was because of her compensable injury and that if she had worked the summer of 2004, she would have earned an AWW of $400.00. Section 408.0446(b) provides:

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]…, the insurance carrier may consider any evidence of the employee’s reasonable expectation of earnings.

In the instant case, the self-insured is arguing that a specific finding of the reasonable expectation of earnings has to be made in order to determine the AWW. The self-insured also argues that because the claimant did not actually apply for summer work, she could not have had any reasonable expectation of earnings.

We previously said in Texas Workers’ Compensation Commission Appeal No. 022860-s, decided January 3, 2003, “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.” In the instant case, the hearing officer, while not making a specific finding of fact concerning reasonable expectation of earnings, clearly performed the indicated analysis in the Background Information portion of his decision. In that section, the hearing officer discussed the claimant’s summer work history and the fact that she did not apply for the summer of 2004 because of her injury. He also quoted an affidavit submitted by the self-insured that the claimant had not met the requirements to work summer school in 2004. Considering all the evidence, he concluded that her AWW for the summer would have been $400.00. 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 self-insured governmental entity) and the name and address of its registered agent for service of process is

SUPERINTENDENT

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Thomas A. Knapp

CONCUR:

Chris Cowan
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 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 was held on September 2, 2003. The hearing officer determined that the respondent (claimant) had a reasonable expectation of working as a schoolteacher during the summer of 2002, and that the claimant’s average weekly wage (AWW) for computing temporary income benefits (TIBs) between June 1 and August 6, 2002, is $942.97.

The appellant (self-insured) appealed, basically on sufficiency of the evidence grounds, contending that the claimant had not worked in the summer of 2001 and had not been offered a summer teaching job for 2002. The file does not contain a response from the claimant.

DECISION

Affirmed.

The claimant, an elementary school teacher, worked during the summer 2000, applied for, and was offered, a summer teaching job in 2001, but declined the offered job when it conflicted with his honeymoon. In dispute is whether the claimant was verbally offered a summer teaching job by Dr. B, an assistant principal in the self-insured’s system, in 2001 or 2002. Dr. B adamantly testified (although not listed as a witness in the hearing officer’s decision) that she offered the claimant a teaching job in March 2001 although there is some evidence it was in spring 2002. There is conflicting evidence regarding who said what to whom and when. The claimant sustained a compensable injury on _____________, and was unable to work the summer of 2002.

The crux of this case is in Section 408.0446(b) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.7(d) (Rule 128.7(d)) which allow the carrier (in this case the self-insured) to adjust a school district employee’s AWW to reflect what the employee could reasonably expect to earn during the period for which TIBs are paid (or in this case the summer session 2002).

The claimant had clearly worked a summer session in the past, had applied and been offered a job in 2001 (which he turned down) and again applied for summer work in March 2002. The hearing officer found that the claimant was injured before he was offered or rejected for the job. Although there was “obvious confusion” regarding the job offers, the hearing officer determined, based on the evidence, that the claimant had a reasonable expectation of working as a schoolteacher during the summer of 2002 and that no adjustment of the AWW was appropriate. Whether the claimant had a reasonable expectation of employment was a factual determination for the hearing officer to resolve and is fact-specific for each case. Therefore, we hold Texas Workers' Compensation Commission Appeal No. 030584, decided April 24, 2003, to be distinguishable from the facts in this case. As the trier of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. The hearing officer’s decision is supported by sufficient evidence and is not 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 hearing officer’s decision and order 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

JG

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Thomas A. Knapp

CONCUR:

Elaine M. Chaney
Appeals Judge

Chris Cowan
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 18, 2003. The hearing officer determined that the respondent (claimant) was not a seasonal employee and the appellant (carrier) is, therefore, not entitled to an adjustment of the average weekly wage (AWW) under Section 408.043. The carrier appeals this determination essentially on sufficiency of the evidence grounds. The claimant did not file a response.

DECISION

Affirmed.

The hearing officer did not err in determining that the claimant was not a seasonal employee and that the carrier is, therefore, not entitled to an adjustment of AWW under Section 408.043. The carrier, who seeks an adjustment of AWW, has the burden to prove that the claimant was a seasonal employee. Texas Workers’ Compensation Commission Appeal No. 002390, decided November 28, 2000. Section 408.043(d) defines a "seasonal employee" as an employee who, as a regular course of the employee's conduct, engages in seasonal or cyclical employment that does not continue throughout the entire year. See also Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 128.5(a) (Rule 128.5(a)). Whether the claimant was seasonal employee is a question of fact for the hearing officer to resolve. Texas Workers’ Compensation Commission Appeal No. 022715, decided December 2, 2002. The hearing officer is the sole judge of the weight and credibility of the evidence and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Section 410.165(a). The hearing officer clearly was not persuaded by the carrier’s evidence and found that the claimant was not a seasonal employee. The hearing officer’s determination 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). Because the claimant is not a seasonal employee, the hearing officer properly concluded that the carrier is not entitled to an adjustment of AWW under Section 408.043.

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).

Edward Vilano

CONCUR:

Chris Cowan
Appeals Judge

Gary L. Kilgore
Appeals Judge

This case returns following our remand in Texas Workers' Compensation Commission Appeal No. 022860-s, decided January 3, 2003, where we remanded for the hearing officer to determine “what, if anything, the claimant could reasonably be expected to have earned during the summer vacation of 2002 if she had not been injured.” In his decision on remand, the hearing officer noted that the parties “agreed no further hearing was necessary and none was held.” Thus, no evidence was presented on the issue for which the case was remanded. The hearing officer determined that based upon the use to the term “may” in Section 408.0446 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.7(d)(3) (Rule 128.7(d)(3)), he would not permit the appellant (self-insured) to adjust the respondent’s (claimant) average weekly wage (AWW) to zero for purposes of calculating temporary income benefits (TIBs) because it “would create a windfall for the Self-Insured and take away TIBs benefits the Claimant rightly deserves under the Act.” In its appeal, the self-insured argues that the hearing officer “failed to properly apply” Rule 128.7(d)(3) “which allows the [AWW] to be adjusted to zero during that period of time when the school district employee reasonably could expect to earn no wages.” In her response to the carrier’s appeal, the claimant urges affirmance.

DECISION

Reversed and rendered.

In Appeal No. 022860-s, we specifically stated that “[i]f the hearing officer determines that the claimant did not reasonably expect to earn wages during the summer of 2002, the self-insured is entitled to adjust the claimant’s AWW to zero pursuant to Rule 128.7 for purposes of payment of TIBs during that time.” From that language, it is apparent that we had determined that the school district was entitled to reduce the claimant’s AWW in the summer in this instance. The case was only remanded to have the hearing officer make a factual determination as to what the claimant could reasonably have earned in the summer of 2002 had she not been injured. As noted above, by agreement of the parties, no hearing on remand was held and, thus, there is no evidence in the record to support a determination of any reasonable expectation of earnings other than zero. As the hearing officer noted, Section 408.0446(b) states that the self-insured “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 addition, Rule 128.7(d)(3) provides that “[f]or a period a school district employee would not have earned wages, the AWW may be adjusted to zero and no minimum benefit payment may be required.” While we agree that both Section 408.0446 and Rule 128.7 use the term “may,” we cannot agree with the hearing officer’s interpretation that the use of that word gives him the discretion not to apply the law in this case. To the extent that the provisions at issue are discretionary, they vest the discretion of whether or not to adjust AWW with the self-insured not the Texas Workers' Compensation Commission. There is no denying that the application of Section 408.0446 and Rule 128.7 yield a harsh result in this case. However, as we noted in Appeal No. 022860-s, the plain language of those provisions “allows the school district to adjust AWW for district employees under certain circumstances, potentially to [zero], depending upon what the employee could reasonably expect to earn.” There is simply no basis for us to ignore the plain language of the statute in order to avoid a harsh result. In this case, there is no dispute that although the claimant’s salary is paid over 12 months in accordance with her contract, she earns her salary over the 187 days of the school year. That is, she has no reasonable expectation of earning any of her salary over the summer. And, the claimant and her attorney put on no evidence either at the initial hearing or on remand of any reasonable expectation of earnings she would have had in the summer of 2002 had she not been injured. Accordingly, we reverse the determination that the self-insured is not entitled to adjust AWW pursuant to Section 408.0446 and Rule 128.7 and render a new determination that the self-insured was permitted to adjust the claimant’s AWW to zero for computing TIBs during the summer of 2002.

We reverse the hearing officer’s determination that the self-insured is not entitled to adjust the claimant’s AWW for computing TIBs and render a new decision that the self-insured is entitled to adjust the claimant’s AWW to zero for computing TIBs during the summer of 2002, when, based upon the record before us, the claimant had no reasonable expectation of earning any wages.

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).

Elaine M. Chaney

CONCUR:

Gary L. Kilgore
Appeals Judge

Michael B. McShane

Appeals Panel

Manager/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 December 5, 2002. The hearing officer determined that the respondent (claimant) is a seasonal employee and that the appellant (self-insured) is entitled to adjust the claimant’s average weekly wage (AWW) for the period beginning June 1 through August 11, 2002, based upon the number of hours that the claimant would have worked as shown by the hours worked by a same or similar employee during that period. The self-insured appeals this decision. The appeal file contains no response from the claimant.

DECISION

Affirmed.

The evidence reflects that the claimant was employed, on a noncontractual basis, by the school district as a bus driver and had worked for approximately seven years prior to her injury on ____________. Due to the injury, the claimant did not return to work during the remaining portion of the school year, which ended on May 31, 2002. Although the evidence reflects that the claimant had worked reduced hours every summer that she had been employed by the school district, during the summer period in question, which was from June 1 through August 11, 2002, the claimant was not able to work due to the compensable injury. The self-insured argued that irrespective of the compensable injury, the claimant would not have been offered employment during the summer in question. For this reason, the self-insured asserts that it should be allowed to adjust the claimant’s AWW to zero.

The hearing officer resolved the issues presented to her by determining that the claimant was a seasonal employee and that the self-insured is entitled to adjust the claimant’s AWW during the summer period in question. 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.]

Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.7 (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.

1. (1)An insurance carrier (carrier) may adjust the AWW based on evidence of earnings.

2. (1)A school district employee may request adjustments by submitting evidence of earnings to the carrier.

3. (1)For a period a school district employee would not have earned wages, the AWW may be adjusted to zero and no minimum benefit payment may be required.

The aforementioned provisions apply specifically to school district employees who sustain compensable injuries on or after December 1, 2001. Prior to the enactment of Section 408.0446, in order to determine if a carrier was entitled to adjust the AWW of a school district employee who sustained an injury prior to December 1, 2001, it was necessary to rely on Section 408.043 and Rule 128.5, which relate to seasonal employees. While it was not necessary to make a determination in this case as to whether the claimant was a seasonal employee, it is clear from the hearing officer’s decision that despite referring to the claimant as a seasonal employee, the hearing officer applied the correct statute and rule relating to school district employees. As such, we perceive no reversible error in the hearing officer’s references to the claimant as a seasonal employee.

With regard to the claimant’s AWW during the summer break, the hearing officer was not persuaded that the claimant would not have been employed by the school district during the summer and determined that the carrier is “entitled to reduce the Claimant’s [AWW], based upon the reduction in her [AWW] that would have occurred during the period beginning June 1, 2002, and ending August 11, 2002,” based upon the number of hours that she would have worked, as shown by the hours worked by a same or similar employee during that period. Section 408.0446(b) provides that when adjusting a school district employee's AWW, the carrier may consider any evidence of the employee's reasonable expectation of earnings. Under the particular facts of this case, we perceive no error in the hearing officer’s determination that the claimant’s AWW for the summer break should be calculated based on the wages of a same or similar employee during the same period. 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 note that in the event that the claimant believes that the AWW computed by the self-insured does not reflect the true AWW, she may request a benefit review conference as provided by Rule 128.7.

The hearing officer’s decision and order is 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

CR

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Chris Cowan
Appeals Judge

CONCUR:

Judy L. S. Barnes
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 October 28, 2002. The following issue was before the hearing officer: Is the respondent (claimant) a seasonal employee, and if so, what is the adjusted average weekly wage (AWW) and effective dates for adjusting temporary income benefits (TIBs)? The hearing officer determined that the claimant is a seasonal employee, the adjusted AWW is $138.04, and the effective dates for adjusting TIBs is from May 23 through August 19, 2002. The hearing officer also found that the claimant had disability from May 23 through August 19, 2002. The appellant (self-insured) appeals the hearing officer’s determination that the adjusted AWW is $138.04 for the period of May 23 through August 19, 2002. The self-insured also asserts that the issue of disability was not before the hearing officer and was improperly decided. The claimant urges affirmance. The hearing officer’s determination that the claimant is a seasonal employee was not appealed and is, therefore, final. Section 410.169.

DECISION

Affirmed in part, reversed and rendered in part.

The self-insured sought to adjust the claimant’s AWW to $0.00 for the period of May 23 through August 19, 2002. The parties stipulated that the claimant worked as a cook in a school cafeteria, when she sustained a compensable injury on October 2, 2001. The claimant’s employment contract, in effect at the time of the compensable injury, was for the term of one school year beginning August 9, 2001, and ending on May 23, 2002. The claimant stated that her salary payments, however, were spread over a 12 month period and, in prior years, she had received payments from the employer during the summer months for work she had done over the course of the previous school year. The claimant testified that she was not employed during the summer months of the prior two school years but had worked for the employer in the summer of 1999. The claimant further testified that she was unable to work during the summer of 2002 due to her injuries and was unsure whether she would have sought summer employment had she been able to return to work. Given this evidence, the hearing officer found that claimant was a seasonal employee, who had a “reasonable expectation that her wages would continue because she, in the past, had been paid her annual salary throughout the summer periods.” The hearing officer, therefore, left unchanged the claimant’s AWW for the period of May 23 through August 19, 2002.

The hearing officer erred in determining that the claimant’s adjusted AWW is $138.04 for the period of May 23 through August 19, 2002. Section 408.043(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.5(c)(Rule 128.5(c)) provide that the AWW of an employee may be adjusted to more accurately reflect the wages the employee could “reasonably have expected to earn during the period that TIBs are paid.” The rule further provides that evidence of reasonably expected earnings should include an employee’s earnings in corresponding time periods of previous years. Rule 128.5(c). In Texas Workers’ Compensation Commission Appeal No. 992829, decided February 2, 2000, we recognized that salary payments made to a school employee during the summer months for work that was done over the course of the previous school year should not be considered for purposes of determining entitlement to an adjustment of AWW. See also Texas Workers’ Compensation Commission Appeal No. 92688, decided February 5, 1993 (holding that a teacher’s salary had accrued on or before the last day of the employment contract and thus did not constitute wages for the period of unemployment); and compare Texas Workers’ Compensation Commission Appeal No. 022860-s, decided January 3, 2003 (applying new Section 408.0446 for compensable injuries that occur on or after December 1, 2001, which provides that a school district employee’s AWW and any subsequent adjustments are computed on the basis of wages earned in a week rather than on the basis of waged paid in a week). Accordingly, the hearing officer’s determination that the claimant’s adjusted AWW is $138.04 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). In view of the claimant’s testimony that she did not work during the two previous summer periods, we reverse the hearing officer’s determination and render a decision that the claimant’s adjusted AWW is $0.00 for the period of May 23 through August 19, 2002.

As indicated above, the self-insured also appeals the hearing officer’s determination that claimant had disability from May 23 through August 19, 2002, due to the compensable injury. Although not certified as an issue, we observe that the matter of disability was actually litigated by the parties. The issue presented a question of fact for the hearing officer to resolve. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). In view of the evidence presented, we cannot conclude that the hearing officer's disability determination is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.

The decision and order of the hearing officer are affirmed with regard to the disability finding and reversed and rendered with regard to the adjustment of AWW for the period of May 23 through August 19, 2002.

The true corporate name of the insurance carrier is, a governmental entity that self-insures, either individually or collectively through the TEXAS ASSOCIATION OF SCHOOL BOARDS RISK MANAGEMENT FUND and the name and address of its registered agent for service of process is

MM

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Edward Vilano

CONCUR:

Thomas A. Knapp
Appeals Judge

Terri Kay Oliver
Appeals Judge