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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 1, 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 respondent/cross-appellant (claimant) is entitled to supplemental income benefits (SIBs) for the first quarter from January 31 through April 30, 2020; and (2) the claimant is not entitled to SIBs for the second quarter from May 1 through July 30, 2020.

The appellant/cross-respondent (self-insured) appealed the ALJ’s determination that the claimant is entitled to SIBs for the first quarter, contending that the claimant applied for jobs that he was not qualified for and was not physically able to perform. The appeal file does not contain a response from the claimant to the self-insured’s appeal.

The claimant cross-appealed, disputing the ALJ’s determination that the claimant is not entitled to SIBs for the second quarter. The claimant argued that due to a statewide health disaster, the claimant was not required to perform a job search as of March 13, 2020. The self-insured responded, urging affirmance of the determination disputed by the claimant.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury in the form of a lumbar sprain, left fibular fracture, left tibia fracture, compartment syndrome, lumbar contusion, and left leg pain which resulted in an impairment rating of 15% or greater; (2) the first quarter of SIBs was from January 31 through April 30, 2020, with a corresponding qualifying period from October 19, 2019, through January 17, 2020; (3) the second quarter of SIBs was from May 1 through July 30, 2020, with a corresponding qualifying period from January 18 through April 17, 2020; and (4) the required number of job searches for Travis County, the claimant’s county of residence, is five per week.

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).

Eligibility criteria for SIBs entitlement are set forth in Section 408.142.  Section 408.142 references the requirements of Section 408.1415 regarding work search compliance standards.  Section 408.1415(a) states that the Texas Department of Insurance, Division of Workers’ Compensation (Division) commissioner by rule shall adopt compliance standards for SIBs recipients.  28 TEX. ADMIN. CODE §§ 130.100-130.109 (Rules 130.100-130.109), effective July 1, 2009, govern the eligibility of SIBs.

Rule 130.102(d)(1) provides that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the following work search requirements each week during the entire qualifying period:    

(A)  has returned to work in a position which is commensurate with the injured employee’s ability to work;        

(B)  has actively participated in a vocational rehabilitation program as defined in [Rule] 130.101 of this title (relating to [d]efinitions);        

(C)  has actively participated in work search efforts conducted through the Texas Workforce Commission;        

(D)  has performed active work search efforts documented by job applications; or    

(E)  has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work.

FIRST QUARTER SIBS

The ALJ’s determination that the claimant is entitled to SIBs for the first quarter from January 31 through April 30, 2020, is supported by sufficient evidence and is affirmed.

SECOND QUARTER SIBS

The ALJ noted in the discussion portion of her decision that the claimant filed an Application for [SIBs] (DWC-52) for the second quarter stating that the claimant made the requisite five job searches during each week of the qualifying period for the second quarter. The ALJ further noted that a review of the work search logs indicate that the claimant indicated he only made four work searches during week 13 of the qualifying period for the second quarter. We note that the evidence additionally reflects that the claimant only made four job searches during week 10 of the qualifying period. The ALJ determined that the claimant is not entitled to SIBs for the second quarter because he did not make an active effort to obtain employment in each week of the qualifying period of the second quarter.

On March 27, 2020, the Commissioner of Workers’ Compensation issued Commissioner’s Bulletin # B-0012-20 that noted Governor Greg Abbott declared COVID-19 a statewide public health disaster. The bulletin states that it is in effect for the duration of the governor’s COVID-19 declaration or until further notice from the Division. The bulletin notes that Governor Abbott approved the Division’s request to suspend work search compliance standards for SIBs under Section 408.1415(a) and Rule 130.102(d).

We note that week 10 of the qualifying period of the second quarter of SIBs was from March 21 through March 27, 2020, and week 13 of the qualifying period of the second quarter of SIBs was from April 11 through April 17, 2020. The two weeks of the qualifying period for the second quarter of SIBs that the claimant failed to make five job searches were at a time that the work search compliance standards for SIBs were suspended due to the public health disaster. Accordingly, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the second quarter, May 1 through July 30, 2020, and render a new decision that the claimant is entitled to SIBs for the second quarter, May 1 through July 30, 2020.

SUMMARY

We affirm the ALJ’s determination that the claimant is entitled to SIBs for the first quarter from January 31 through April 30, 2020.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the second quarter, May 1 through July 30, 2020, and render a new decision that the claimant is entitled to SIBs for the second quarter, May 1 through July 30, 2020.

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

HONORABLE JUDGE SAMUEL BISCOE
700 LAVACA, SUITE 2.300
AUSTIN, TEXAS 78701.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
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 September 10, 2019, 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 (claimant) is not entitled to supplemental income benefits (SIBs) for the first quarter, April 4 through July 3, 2018; (2) the claimant is not entitled to SIBs for the second quarter, July 4 through October 2, 2018; (3) the claimant is not entitled to SIBs for the third quarter, October 3, 2018, through January 1, 2019; (4) the claimant is not entitled to SIBs for the fourth quarter, January 2 through April 2, 2019; (5) the claimant is not entitled to SIBs for the fifth quarter, April 3 through July 2, 2019; and (6) the respondent (carrier) is relieved of liability for SIBs for the first through fourth quarters because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for those quarters.

The claimant appealed, disputing the ALJ’s SIBs determinations.  The claimant also disputed the ALJ’s determination that the carrier is relieved of liability for SIBs for the first through fourth quarters because of the claimant’s failure to timely file SIBs applications for those quarters.  The carrier responded, urging affirmance of the disputed determinations.

DECISION

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

The parties stipulated, in part, that:  (1) the claimant sustained a compensable injury on (date of injury), which the Texas Department of Insurance, Division of Workers’ Compensation (Division) determined resulted in an impairment rating of 15% or greater; (2) the qualifying period for the first quarter of SIBs was from December 21, 2017, through March 21, 2018; (3) the qualifying period for the second quarter of SIBs was from March 22 through June 20, 2018; (4) the qualifying period for the third quarter of SIBs was from June 21 through September 19, 2018; (5) the qualifying period for the fourth quarter of SIBs was from September 20 through December 19, 2018; (6) the qualifying period for the fifth quarter of SIBs was from December 20, 2018, through March 20, 2019; and (7) the claimant’s county of residence requires three job searches each week of the qualifying period.  A review of the record reflects that the parties stipulated that on (date of injury), the claimant’s employer provided workers’ compensation insurance with Texas Mutual Insurance Company.  However, the ALJ incorrectly found in Finding of Fact No. 1.C. that on (date of injury), the claimant’s employer provided workers’ compensation insurance as a self-insured.  We reform Finding of Fact No. 1.C. to conform to the actual stipulation of the parties to read as follows:  On (date of injury), the claimant’s employer provided workers’ compensation insurance with Texas Mutual Insurance Company.  The records reflect that the claimant sustained an injury to his right upper extremity when it was caught in a machine used to cut sheet metal.

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).

SIBS

Eligibility criteria for SIBs entitlement are set forth in Section 408.142.  Section 408.142 references the requirements of Section 408.1415 regarding work search compliance standards.  Section 408.1415(a) states that the Division commissioner by rule shall adopt compliance standards for SIBs recipients.  28 TEX. ADMIN. CODE §§ 130.100-130.109 (Rules 130.100-130.109), effective July 1, 2009, govern the eligibility of SIBs.

Rule 130.102(d)(1) provides, in part, that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of specified work search requirements each week during the entire qualifying period, including the following:

(D)  has performed active work search efforts documented by job applications.

The claimant’s theory of entitlement for SIBs for the first through fifth quarters was based on an active work search effort documented by job applications each week during the qualifying period.  We note that in her discussion of the evidence, the ALJ incorrectly stated that the claimant did not provide the business address, phone number or website for any of the contacts listed.  A review of the evidence reflects that the phone numbers for some of the contacts listed were provided.  However, the evidence reflects that the claimant only performed eight job searches for each of the qualifying periods for the first through fifth quarters of SIBs.  The ALJ found that the claimant did not provide documentation of at least three work search contacts each week of the qualifying periods for the first through fifth quarter qualifying periods.  That finding is supported by sufficient evidence.  Accordingly, the ALJ’s determinations that the claimant is not entitled to SIBs for the first, second, third, fourth, or fifth quarter of SIBs is supported by sufficient evidence and is affirmed.

TIMELY FILING OF SIBS APPLICATION

Section 408.143(c) provides that failure to file a statement under that section relieves the insurance carrier of liability for SIBs for the period during which a statement is not filed.  Rule 130.104(c) provides, in part, that except as otherwise provided in that section, a DWC-52 shall be filed no later than 7 days before, and no earlier than 20 days before, the beginning of the quarter for which the injured employee is applying for SIBs.  Rule 130.105(a) provides, in part, that an injured employee who does not timely file a DWC-52 with the insurance carrier shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the insurance carrier.  Rule 130.105(a) does contain some exceptions to the timely filing of the SIBs application, but none of those exceptions were shown to apply in this case.

The disputed issue regarding timely filing before the ALJ was as follows:  Is the carrier relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the first through fifth quarters, and if so, for what period?  The ALJ’s determination that the carrier is relieved of liability for SIBs for the second through fourth quarters because of the claimant’s failure to timely file a DWC-52 for those quarters is supported by sufficient evidence and is affirmed.

Section 408.143(a) provides that after the Division’s initial determination of SIBs, the employee must file a statement.  We note that by its plain language, Section 408.143(c), which provides that the claimant’s failure to timely file a DWC-52 relieves the carrier of liability for the period during which the statement is not filed, does not apply to the first quarter.  See Appeals Panel Decision 030285, decided March 11, 2003.  Therefore, the ALJ improperly determined that the carrier would be relieved of liability for the first quarter because of the claimant’s late filing.  Although it does not change the outcome of this case, we reverse that portion of the decision that the carrier is relieved of liability for SIBs for the first quarter of SIBs and render a new decision that the carrier is not relieved of liability for SIBs for the first quarter.

As previously noted, the issue before the ALJ also included whether the carrier is relieved of liability for SIBs for the fifth quarter.  The ALJ failed to make a determination of whether the carrier is relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file an application for fifth quarter SIBs which was an issue before her to decide.  Accordingly, we reverse the ALJ’s decision as being incomplete.

It was undisputed that the fifth quarter was from April 3 through July 2, 2019.  The ALJ found that the claimant filed a DWC-52 for the first through fifth quarters on April 19, 2019.  That finding is supported by sufficient evidence.  Accordingly, we render a new decision that the carrier is relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file a DWC-52 from April 3 through April 18, 2019, and that the carrier is not relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file a DWC-52 from April 19 through July 2, 2019.  However, as previously noted, the ALJ’s determination that the claimant is not entitled to SIBs for the fifth quarter, April 3 through July 2, 2019, is supported by sufficient evidence and is affirmed.  Further, we note that Section 408.146(c) provides that notwithstanding any other provision of this section, an employee who is not entitled to SIBs for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury.

SUMMARY

We reform Finding of Fact No. 1.C. to read as follows:  On (date of injury), the claimant’s employer provided workers’ compensation insurance with Texas Mutual Insurance Company.

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the first quarter, April 4 through July 3, 2018.

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the second quarter, July 4 through October 2, 2018.

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the third quarter, October 3, 2018, through January 1, 2019.

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the fourth quarter, January 2 through April 2, 2019.

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the fifth quarter, April 3 through July 2, 2019.

We affirm the ALJ’s determination that the carrier is relieved of liability for SIBs for the second through fourth quarters because of the claimant’s failure to timely file a DWC-52 for those quarters.

We reverse that portion of the ALJ’s determination that the carrier is relieved of liability for SIBs for the first quarter of SIBs and render a new decision that the carrier is not relieved of liability for SIBs for the first quarter.

We reverse the ALJ’s determination as being incomplete and render a new decision that the carrier is relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file a DWC-52 from April 3 through April 18, 2019, and that the carrier is not relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file a DWC-52 from April 19 through July 2, 2019.

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

RICHARD GERGASKO, PRESIDENT
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
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 (CCH) was held on March 6, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the second quarter, September 13 through December 12, 2016.

The appellant (carrier) appeals the hearing officer’s determination as being legally in error and contrary to the evidence. The appeal file does not contain a response from the claimant.

DECISION

Reversed and remanded.

The parties stipulated in part that: (1) on (date of injury), the claimant sustained a compensable injury which resulted in an impairment rating (IR) of 15% or higher; (2) the claimant has not commuted any portion of the impairment income benefits; and (3) the minimum number of job applications or work search contacts required pursuant to 28 TEX. ADMIN. CODE § 130.102(f) (Rule 130.102(f)) is three per week. Although no stipulation was obtained from the parties regarding the qualifying period for the second quarter of SIBs, the hearing officer’s finding of fact that the qualifying period for such quarter was from June 1 through August 30, 2016, is undisputed. Additionally, we note that in her Decision and Order, the hearing officer indicates that Claimant’s Exhibits C-1 through C-11 were admitted into evidence when, in fact, Claimant’s Exhibit C-1 lists Exhibit C-6 as “omitted” and, in fact, no Exhibit C-6 is in the record.

No testimony was offered during the CCH. Although it is undisputed that the claimant failed to demonstrate an active effort to obtain employment by meeting at least one or any combination of the work search requirements contained in Rule 130.102(d)(1) each week during the entire qualifying period, the claimant argued his entitlement to SIBs for the second quarter based upon his meeting work search requirements under Rule 130.102(f) during each week of the qualifying period following his receipt from the carrier of a blank Application for [SlBs] (DWC-52) listing the correct dates of the second quarter and the second quarter qualifying period.

On February 12, 2016, the carrier initially mailed to the claimant a blank DWC-52 for the second quarter based upon the Texas Department of Insurance, Division of Workers’ Compensation (Division)-appointed designated doctor certification of maximum medical improvement (MMI) on October 31, 2014, and assignment of an IR of 22%. This initial second quarter DWC-52 listed the dates of the quarter as beginning on May 7, 2016, and ending on August 5, 2016, and the dates of the qualifying period as beginning on January 24, 2016, and ending on April 23, 2016.

Thereafter, on April 20, 2016, a Division hearing officer entered a Decision and Order determining that the correct MMI date was August 3, 2015, and the correct IR was 15% as certified by the carrier’s choice of physician. The carrier, on June 20, 2016, mailed a second DWC-52 to the claimant which listed the correct dates of the second quarter and second quarter qualifying period based upon the hearing officer’s decision dated April 20, 2016. The subsequent DWC-52 for the second quarter was received by the claimant on June 27, 2016, more than three weeks after the beginning of the qualifying period. On September 22, 2016, the claimant filed a copy of the initial DWC-52 with the carrier which reflected that the claimant had performed one work search contact during the initial week of the correct qualifying period (June 1, 2016, through June 7, 2016) and the fourth week of the qualifying period (June 22, 2016, through June 28, 2016) but had performed at least the required number of work search contacts for the remaining weeks of the qualifying period.

Rule 130.104(b) provides, in part, that a carrier is required to send a DWC-52 for a subsequent quarter with either the first payment for a quarter of SIBs to which the claimant is determined to be entitled or with the carrier’s determination of nonentitlement for that quarter. See Appeals Panel Decision (APD) 021776, decided August 28, 2002. The duty of a carrier to send the application arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter.  See APD 020047, decided February 21, 2002. It is undisputed that the Division determined the claimant was not entitled to SIBs for the first quarter. Nevertheless, the hearing officer clearly based her determination that the claimant was entitled to SIBs for the second quarter upon her finding that the carrier failed to comply with its obligation under Rule 130.104(b) to provide the claimant with a DWC-52 containing accurate information regarding the dates of the qualifying period and her further finding that the claimant performed the required number of work search contacts after he received the second DWC-52 on June 27, 2016, containing the correct dates of the qualifying period at issue. We disagree and hold that the hearing officer erred, as a matter of law, in basing her decision on the carrier’s failure to send a DWC-52 form for the second quarter as required by Rule 130.104(b), because no such obligation was triggered under Rule 130.104(b), since the carrier never sent a monthly payment for a SIBs quarter nor did it make a determination of nonentitlement after the Division’s initial nonentitlement determination for the first quarter.

Rule 130.102(d)(2) provides that an injured employee who has not met at least one of the work search requirements in any week during the qualifying period is not entitled to SIBs unless the injured employee can demonstrate that he or she had reasonable grounds for failing to comply with the work search requirements under this section. As mentioned earlier, it is undisputed that the claimant failed to demonstrate an active effort to obtain employment by meeting at least one or any combination of the work search requirements contained in Rule 130.102(d)(1) each week during the entire qualifying period; however, the hearing officer made no finding in her Decision and Order regarding whether the claimant had reasonable grounds under the evidence presented for failing to comply with work search requirements in weeks one and four of the qualifying period for the second quarter.

Accordingly, we reverse the hearing officer’s decision that the claimant is entitled to SIBs for the second quarter, September 13 through December 12, 2016, and we remand the issue of entitlement to SIBs for the second quarter to the hearing officer to consider the evidence, make findings of fact concerning whether the claimant had reasonable grounds for failing to comply with the work search requirements under Rule 130.102 during each week of the qualifying period for the second quarter of SIBs and make a determination concerning whether the claimant is entitled to SIBs for the second quarter.

REMAND INSTRUCTIONS  

On remand the hearing officer is to consider all of the evidence, make findings of fact regarding whether the claimant has demonstrated reasonable grounds for failing to comply with the work search requirements during each week of the qualifying period for the second quarter of SIBs under Rule 130.102, and render conclusions of law and a decision regarding whether the claimant is entitled to SIBs for the second quarter 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 Division 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 APD 060721, decided June 12, 2006.

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

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 4, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the first quarter, sixth quarter, and seventh quarter; (2) the claimant is entitled to SIBs for the second quarter, third quarter, and fifth quarter; (3) the appellant (self-insured) waived its right to contest entitlement to SIBs for the second quarter and third quarter by failing to timely request a benefit review conference (BRC); and (4) the self-insured did not waive its right to contest entitlement to SIBs for the first quarter, fifth quarter, and sixth quarter for failing to timely request a BRC.

The self-insured appealed the hearing officer’s determinations that it waived the right to contest entitlement to second and third quarter SIBs, and that the claimant is entitled to second, third, and fifth quarter SIBs. The self-insured contends that the evidence does not support the appealed determinations. The self-insured also contends that the issue of whether it waived the right to contest entitlement to SIBs for the sixth quarter was not an issue for the hearing officer to determine at the CCH. The claimant responded, urging affirmance of the hearing officer’s determinations appealed by the self-insured.

The hearing officer’s determinations that the claimant is not entitled to first, sixth, and seventh quarter SIBs and that the self-insured did not waive its right to contest entitlement to first and fifth quarter SIBs were not appealed and have become final pursuant to Section 410.169.

DECISION

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

The parties stipulated in part that: the claimant sustained a compensable injury on (date of injury), which resulted in an impairment rating of 15% or greater; the claimant has not commuted any portion of the impairment income benefits; the qualifying periods for the second, third, and fifth quarters of SIBs were from April 22 through July 21, 2015, July 22 through October 20, 2015, and January 20 through April 19, 2016; the claimant’s county of residence, Montgomery County, requires three work searches per week; and the claimant is not entitled to first and seventh quarter SIBs. The evidence established that the claimant was injured by a student.

REFORMED PORTIONS OF DECISION

In Finding of Fact No. 3 the hearing officer found that during the qualifying periods for the second, third, and fifth quarters of SIBs the claimant was unable to perform any type of work in any capacity and her unemployment was a direct result of her impairment from the compensable injury. However, in her discussion the hearing officer specifically stated that the claimant “did not submit sufficient medical documentation to support her claim for total inability to work for the second quarter of SIBs but as [the] [self-insured] has waived its right to contest entitlement to SIBs for the second quarter [the] [c]laimant is entitled to second quarter of (sic) SIBs.” The hearing officer made the same statement regarding the third quarter of SIBs. The evidence established that the claimant did not submit sufficient medical documentation to support her claim for total inability to work for either the second or third quarter of SIBs. Accordingly, we reform Finding of Fact No. 3 to state that during the qualifying periods for the second and third quarters of SIBs the claimant had some ability to work to conform to the evidence and the hearing officer’s discussion.

Additionally, the self-insured contended on appeal that whether it waived the right to contest entitlement of sixth quarter SIBs was not an issue for the hearing officer to determine at the CCH. Waiver of sixth quarter SIBs was not listed on the BRC report, was not added at the CCH, and was not actually litigated at the CCH. The hearing officer exceeded the scope of the issue before her. Accordingly, we reform the hearing officer’s decision by striking the sixth quarter of SIBs from Conclusion of Law No. 6, the Decision, and the Decision and Order paragraph on the first page of the decision.

WAIVER OF RIGHT TO CONTEST ENTITLEMENT TO THIRD QUARTER SIBs

The hearing officer’s determination that the self-insured waived its right to contest entitlement to SIBs for the third quarter is supported by sufficient evidence and is affirmed.

ENTITLEMENT TO THIRD QUARTER SIBs

The hearing officer’s determination that the claimant is entitled to SIBs for the third quarter is supported by sufficient evidence and is affirmed.

WAIVER OF RIGHT TO CONTEST ENTITLEMENT TO SECOND QUARTER SIBs

The hearing officer determined that the self-insured waived its right to contest entitlement to second quarter SIBs. The hearing officer noted in her discussion that the parties stipulated the claimant is not entitled to first quarter SIBs, that the claimant filed her Application for [SIBs] (DWC-52) for the second quarter of SIBs on July 24, 2015, and that the self-insured[1] had 10 days in which to dispute the DWC-52 by filing a Request to Schedule, Reschedule, or Cancel a [BRC] (DWC-45), or until August 3, 2015. The self-insured noted in its appeal that the evidence established that the claimant signed the second quarter DWC-52 on July 24, 2015, but the claimant did not file that DWC-52 with the self-insured until July 28, 2015.

28 TEX. ADMIN. CODE § 130.108(c) (Rule 130.108(c)) provides as follows:

Insurance Carrier Dispute; Subsequent Quarter With Prior Payment.  If an insurance carrier disputes entitlement to a subsequent quarter and the insurance carrier has paid [SIBs] during the quarter immediately preceding the quarter for which the [DWC-52] is filed, the insurance carrier shall dispute entitlement to the subsequent quarter by requesting a [BRC] as provided by [Rule] 141 of this title (relating to Dispute Resolution-[BRC]) within 10 days after receiving the [DWC-52].  An insurance carrier waives the right to contest the entitlement to [SIBs] for the subsequent quarter if the request is not received by the Texas Department of Insurance, Division of Workers’ Compensation within 10 days after the date the insurance carrier received the [DWC-52].  The insurance carrier does not waive the right to contest entitlement to [SIBs] if the insurance carrier has returned the injured employee’s [DWC-52] pursuant to [Rule] 130.104(c) of this title (relating to Determination of Entitlement or Non-entitlement for Subsequent Quarters).

 

Rule 130.108(d) provides as follows:

 

Insurance Carrier Disputes; Subsequent Quarter Without Prior Payment.  If an insurance carrier disputes entitlement to a subsequent quarter and the insurance carrier did not pay [SIBs] during the quarter immediately preceding the quarter for which the [DWC-52] is filed, the insurance carrier shall send the determination to the injured employee within 10 days of the date the form was filed with the insurance carrier and include the reasons for the insurance carrier's finding of non-entitlement and instructions about the procedures for contesting the insurance carrier's determination as provided by subsection (a) of this section.

In evidence is the claimant’s DWC-52 for the second quarter signed by the claimant on July 24, 2015. In Finding of Fact No. 5 the hearing officer found that the self-insured received the claimant’s DWC-52 for the second quarter on July 24, 2015. However, that same document shows that the self-insured actually received the DWC-52 for the second quarter on July 28, 2015. In reviewing a “great weight” challenge, we must examine the entire record to determine if:  (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence.  See Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).  See Appeals Panel Decision (APD) 100267, decided April 19, 2010. The hearing officer’s finding that the self-insured received the DWC-52 for the second quarter on July 24, 2015, is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the hearing officer’s finding that the self-insured received the claimant’s DWC-52 for the second quarter on July 24, 2015.

In evidence is a DWC-45 from the self-insured filed on August 4, 2015, disputing the claimant’s entitlement to second quarter SIBs. Also in evidence is the self-insured’s determination of non-entitlement to second quarter SIBs dated August 4, 2015. As discussed above, the evidence established that the self-insured received the DWC-52 for the second quarter on July 28, 2015. The 10th day after July 28, 2015, is Friday, August 7, 2015. The self-insured in the case met the requirements to timely dispute the claimant’s entitlement to second quarter SIBs. Accordingly, we reverse the hearing officer’s determination that the self-insured waived the right to contest entitlement to second quarter SIBs, and we render a new decision that the self-insured did not waive the right to contest entitlement to second quarter SIBs.

Additionally, we note that the evidence does not establish that quarter one was actively under dispute on the date the self-insured received the claimant’s DWC-52 for the second quarter. Therefore, the self-insured was not required to file a DWC-45 within 10 days of receiving the claimant’s DWC-52 for the second quarter. See APD 051130-s, decided July 12, 2005; APD 032868-s, decided December 11, 2003; APD 080242, decided April 7, 2008; APD 041362, decided July 27, 2004; APD 041726, decided September 2, 2004; and APD 070653, decided May 29, 2007.

CLAIMANT’S ENTITLEMENT TO SECOND QUARTER SIBs

The hearing officer made clear in her decision that she based her determination that the claimant is entitled to second quarter SIBs solely on her determination that the self-insured waived the right to contest second quarter SIBs. However, given that we have reversed the hearing officer’s determination that the self-insured waived the right to contest entitlement to second quarter SIBs and have rendered a new decision that the self-insured did not waive the right to contest entitlement to second quarter SIBs, we also reverse the hearing officer’s determination that the claimant is entitled to second quarter SIBs, and we render a new decision that the claimant is not entitled to second quarter SIBs.

CLAIMANT’S ENTITLEMENT TO FIFTH QUARTER SIBs

The hearing officer found that during the qualifying period for fifth quarter SIBs the claimant was unable to perform any type of work in any capacity, and therefore determined that the claimant is entitled to fifth quarter SIBs. The hearing officer discussed a Work Status Report (DWC-73) from a (Dr. O) taking the claimant off work from March 16 through April 14, 2016, and medical notes from Dr. O.

Rule 130.102(d)(1) provides, in pertinent part, that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the following work search requirements each week during the entire qualifying period:

* * * *

(E) has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work.

In APD 012286, decided November 14, 2001, the Appeals Panel “held that the narrative report from the doctor must specifically explain how the compensable injury causes a total inability to work.”  See also APD 032173, decided October 9, 2003, and APD 111188, decided October 10, 2011.

We note that Dr. O’s records in evidence refer to a work-related injury that occurred on March 28, 2014. There was evidence in the record to show that the claimant sustained a separate work-related injury on March 28, 2014. The date of injury in this case is (date of injury). Even if Dr. O mistakenly referenced an incorrect date of injury, none of her records specifically explain how the compensable injury causes a total inability to work. In a record dated March 17, 2016, Dr. O stated that the claimant was recovering from surgery to the right shoulder and finished chronic pain management program. However, she noted that (Dr. B) thought the claimant could “maybe . . . be back to school soon” and noted that the claimant thought “that maybe she could go back to work if could (sic) go to different classroom.” In a record dated April 14, 2016, Dr. O noted that the claimant thought that “maybe she could go back to work now with progress of shoulder but would not be able to restrain children so wouldn’t be appropriate for her to be in her previous classroom.” In that same record Dr. O recommended that the claimant return to a classroom that would not require her to physically restrain children or have high likelihood of repeat assault by a child. In another record dated May 10, 2016, Dr. O stated that she thinks the claimant is “doing well in getting back to work.” Dr. O did not provide an explanation specifically explaining how the compensable injury causes a total inability to work.

We reverse the hearing officer’s determination that the claimant is entitled to fifth quarter SIBs as being so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.  Because there is no narrative from a doctor that specifically explains how the compensable injury caused a total inability to work in any capacity we reverse the hearing officer’s determination that the claimant is entitled to fifth quarter SIBs, and we render a new decision that the claimant is not entitled to fifth quarter SIBs.

SUMMARY

We affirm the hearing officer’s determination that the self-insured waived its right to contest entitlement to third quarter SIBs.

We affirm the hearing officer’s determination that the claimant is entitled to third quarter SIBs.

We reform Finding of Fact No. 3 to state that during the qualifying periods for the second and third quarters of SIBs the claimant had some ability to work, to conform to the evidence and the hearing officer’s discussion.

We reform the hearing officer’s decision by striking sixth quarter SIBs from Conclusion of Law No. 6, the Decision, and the Decision and Order paragraph on the first page of the decision.

We reverse the hearing officer’s determination that the self-insured waived the right to contest entitlement to second quarter SIBs, and we render a new decision that the self-insured did not waive the right to contest entitlement to second quarter SIBs.

We reverse the hearing officer’s determination that the claimant is entitled to second quarter SIBs, and we render a new decision that the claimant is not entitled to second quarter SIBs.

We reverse the hearing officer’s determination that the claimant is entitled to fifth quarter SIBs, and we render a new decision that the claimant is not entitled to fifth quarter SIBs.

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

DR. DON STOCKTON, SUPERINTENDENT

3205 WEST DAVIS STREET

CONROE, TEXAS 77304-2039.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that the hearing officer refers to the self-insured as a carrier throughout the decision.

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 April 5, 2016, in Lufkin, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) is not entitled to supplemental income benefits for the first and second quarters.

The claimant appealed the hearing officer’s determination based on sufficiency of the evidence. The respondent (self-insured) responded, urging affirmance of the hearing officer’s determination.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record at the CCH.   The appeal file does not contain an audio recording or a transcript of the CCH. Consequently, we reverse and remand this case to the hearing officer who presided over the April 5, 2016, CCH, if possible, for reconstruction of the CCH record.  See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

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 Texas Department of Insurance, Division of Workers’ Compensation, 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 APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is WAL MART ASSOCIATES, INC. (a certified self-insured) 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:

K. Eugene Kraft
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 June 2, 2014, in Lufkin, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the second quarter, from January 14 through April 14, 2014. The claimant appealed, disputing the hearing officer’s determination that he is not entitled to SIBs for the second quarter. The claimant argues that he should be entitled to SIBs in part because incorrect information regarding the number of job searches required for his county of residence was provided for both the first and second quarter SIBs applications.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record at the CCH. The appeal file contains one compact disc (CD). The CD reflects that it is one hour, four minutes and two seconds long but contains no audible arguments or testimony. The file does not contain a transcript or a tape recording of the CCH proceeding. Consequently, we reverse and remand this case to the hearing officer for reconstruction of the CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

As previously noted, the claimant contends on appeal that he was provided incorrect information regarding the number of job searches required to qualify for SIBs. See APD 140039, decided March 3, 2014.

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 Texas Department of Insurance, Division of Workers’ Compensation, 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 APD 060721, decided June 12, 2006.

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

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

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 May 17, 2012, with the record closing on May 31, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant/cross-respondent’s (claimant) impairment rating (IR) is 19%; (2) the IR assigned by [Dr. D] on May 2, 2011, did not become final under 28 TEX. ADMIN. CODE § 130.102(h) (Rule 130.102(h)); (3) the claimant is not entitled to supplemental income benefits (SIBs) for the first quarter, August 3 through November 1, 2011; (4) the claimant is not entitled to SIBs for the second quarter, November 2, 2011, through January 31, 2012; (5) the respondent/cross-appellant (carrier) is not relieved of liability for SIBs because of the claimant’s alleged failure to timely file an Application for SIBs (DWC-52) for the second quarter; (6) the claimant is not entitled to [SIBs] for the third quarter, February 1 through May 1, 2012; and (7) the carrier is not relieved of liability for SIBs because of the claimant’s alleged failure to timely file a DWC-52 for the third quarter.

The claimant appealed, disputing the hearing officer’s determinations of the IR and non-entitlement of SIBs for the first, second, and third quarters. The carrier responded, urging affirmance of those disputed determinations. The carrier cross-appealed, disputing the hearing officer’s determinations that the carrier is not relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the second and third quarters. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.

The hearing officer’s determination that the IR assigned by Dr. D on May 2, 2011, did not become final under Rule 130.102(h) was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered in part and reversed and remanded in part.

The parties stipulated that: (1) the claimant sustained a compensable injury on [date of injury]; (2) the compensable injury of [date of injury], includes a left hand laceration, an abrasion of the ring and middle fingers of the left hand, a bilateral shoulder strain, a lumbar strain, a herniated disc at L3-4, coccydynia, a right sacroiliac joint injury, and a right knee strain; and (3) the claimant reached maximum medical improvement (MMI) on the date of statutory MMI on June 29, 2010. The claimant testified she was injured when a load lock she was installing came undone and hit her, throwing her off balance and causing her to fall.

IR

The claimant contends that her IR should be 30% as certified by [Dr. W], who was initially appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor for MMI and IR. Dr. W certified in a Report of Medical Evaluation (DWC-69) that the claimant reached MMI on June 17, 2010, with a 30% IR. Dr. W examined the claimant on March 9, 2010. A letter of clarification (LOC) was sent to Dr. W which stated that prospective MMI dates are invalid. Dr. W responded, stating as of March 9, 2010, the claimant was not at MMI. Further as previously noted, the parties stipulated that the claimant reached MMI on the date of statutory MMI, June 29, 2010.

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.

Dr. D was subsequently appointed by the Division as the designated doctor for MMI and IR. Dr. D examined the claimant and certified in a DWC-69 that the claimant reached MMI on January 24, 2011, with a 28% IR, using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides).

Dr. D assessed 5% impairment for the lumbar spine, placing the claimant in Diagnosis-Related Estimate Lumbosacral Category II: Minor Impairment. Based on range of motion (ROM) measurements, Dr. D then assessed 24% upper extremity (UE) impairment for loss of ROM of the left shoulder and 20% UE impairment for the right shoulder. Dr. D then converted the UE impairment to whole person (WP) (14% for the left UE and 12% for the right UE) and combined the impairment assessed for the lumbar spine to arrive at the 28% IR assessed in the DWC-69. In response to an LOC, Dr. D subsequently sent a revised DWC-69 which certified that the claimant reached MMI on June 29, 2010 (the stipulated statutory date) with a 28% IR. A subsequent LOC was sent to Dr. D on April 28, 2011, which noted some errors made by Dr. D in applying Figure 44, page 3/45 of the AMA Guides to the ROM figures noted in his examination. In his response to the LOC, Dr. D acknowledged he made errors and amended his certification of IR to 19%. The hearing officer found that the preponderance of the evidence is not contrary to Dr. D’s certification of MMI and determination of the claimant’s IR.

Dr. D’s certifying examination noted the following ROM figures for the loss of ROM of the claimant’s left shoulder: flexion 85°, extension 20°, abduction 70°, adduction 45°, external rotation 60°, and internal rotation 80°. Dr. D applying Figure 38, page 3/43 of the AMA Guides, correctly notes that impairment for flexion and extension would be 9%. We note that the AMA Guides require that the figures be rounded to the nearest 10° and that he rounded the 85° measurement for flexion to 80° for 7% UE impairment and that the 20° measurement for extension results in 2% UE impairment.[1]

Dr. D, applying Figure 41, page 3/44 of the AMA Guides, correctly notes that impairment for abduction and adduction is 5% UE impairment. Impairment for abduction of 70° results in 5% UE impairment and there is no impairment for 45° of adduction.

In his initial report, Dr. D assessed UE impairment of 10% for external and internal rotation, using Figure 44, page 3/45 of the AMA Guides. In his response to the LOC of April 28, 2011, Dr. D acknowledges that he made an error in calculating the impairment for external and internal rotation and stated that the ROM loss for external and internal rotation of the left shoulder totals 2% UE impairment. However, we note that Dr. D in his certifying examination noted the claimant’s ROM for external rotation was 60° which results in 0% impairment and the claimant’s ROM for internal rotation of 80° which also results in 0% impairment.

Dr. D initially assessed 24% UE impairment for the left shoulder and in his response to the LOC assessed 16% UE impairment for the left shoulder. We note that using the ROM measurements from Dr. D’s certifying examination the UE impairment for the left shoulder is 14%.

Dr. D’s certifying examination noted the following ROM figures for the loss of ROM of the claimant’s right shoulder: flexion 100°, extension 60°, abduction 80°, adduction 45°, external rotation 90°, and internal rotation 60°. Dr. D, applying Figure 38, page 3/43 of the AMA Guides, correctly notes that UE impairment for flexion and extension would be 5%. Impairment for 100° of flexion results in 5% UE impairment and there is no impairment for 60° of extension.

Dr. D, applying Figure 41, page 3/44 of the AMA Guides, correctly notes that impairment for abduction and adduction is 5% UE impairment. Impairment for abduction of 8° results in 5% UE impairment and there is no impairment for 45° of adduction.

In his initial report, Dr. D assessed UE impairment of 10% for external and internal rotation, using Figure 44, page 3/45 of the AMA Guides. In his response to the LOC of April 28, 2011, Dr. D acknowledges that he made an error in calculating the impairment for external and internal rotation and stated that the ROM loss for external and internal rotation of the right shoulder totals 0% UE impairment. However, we note that Dr. D in his certifying examination noted the claimant’s ROM for external rotation was 90° which results in 0% impairment but the claimant’s ROM for internal rotation of 60° results in 2% UE impairment.

Dr. D initially assessed 20% UE impairment for the left shoulder and in his response to the LOC assessed 10% UE impairment for the left shoulder. We note that using the ROM measurements from Dr. D’s certifying examination the UE impairment for the left shoulder is 12% UE.

The AMA Guides provide that the impairment values for loss of each shoulder motion are added to determine the impairment of the UE and then Table 3, page 3/20 is used to convert the impairment of the UE to impairment of the WP. The AMA Guides further provide that if both limbs are involved, the WP impairment should be calculated on a separate chart and then combined to arrive at the WP impairment assessed.

In his LOC response, Dr. D determined that after converting the UE impairments for the left and right shoulder to WP (10% and 6% respectively) the claimant would have 15% impairment for both the left and right shoulder, which he then combined with the 5% assessed for the lumbar spine and coccydynia injuries resulting in 19%. Dr. D noted that the right knee strain and left hand injuries had resolved for 0% impairment.

However, as previously discussed, Dr. D erred in applying Figure 44, page 3/45, of the AMA Guides for both the left and right shoulders. Using the ROM measurements obtained in the certifying examination of Dr. D, the UE impairment for the left and right shoulder would be 14% and 12% respectively which would convert to WP impairments of 8% and 7% respectively. The 8% for the left shoulder would then be combined with 7% of the right shoulder which would result in 14% WP impairment rather than the 15% WP impairment stated by Dr. D. Combining 14% WP impairment with the 5% WP impairment for the lumbar spine would result in 18% WP impairment for the claimant not 19% as stated by Dr. D. We note that in evidence is correspondence dated February 21, 2011, in which a peer review doctor sets forth the errors made by Dr. D in his initial narrative report.

We have previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR.  See Appeals Panel Decision (APD) 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011.

Under the guidance of those cases and according to the provisions of the AMA Guides, we note that Dr. D must combine 8% impairment of the WP for the left shoulder with the 7% impairment of the WP for the right shoulder, and 5% WP impairment for the lumbar spine, using the combined values chart which results in 18% impairment of the WP rather than the 19% WP IR assigned by Dr. D.  The hearing officer was persuaded that Dr. D’s certification of MMI and IR was not contrary to the preponderance of the evidence and after mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the hearing officer’s decision that the claimant has a 19% IR and we render a new decision that the claimant’s IR is 18%.

ENTITLEMENT TO SIBS FOR THE FIRST, SECOND, AND THIRD QUARTERS

It is necessary to have a determination of the date of MMI and the IR to calculate the dates of the quarters and qualifying periods. Section 408.142 and Rule 130.101. See APD 052516, decided January 11, 2006. Because a new IR has been rendered, the dates of the qualifying periods and SIBs quarters will change. Given the differences in the dates of the applicable SIBs quarters and qualifying periods, we reverse the hearing officer’s determinations that the claimant is not entitled to SIBs for the first, second, and third quarters and remand the SIBs issues in dispute to the hearing officer to examine the evidence and make a determination regarding entitlement to SIBs based on the correct dates. The hearing officer, at his discretion, may receive additional evidence from the parties on the issues of entitlement to SIBs for the first, second, and third quarters.

CLAIMANT’S TIMELY FILING OF THE SIBS APPLICATIONS FOR SECOND AND THIRD QUARTERS

The carrier correctly notes in its appeal that the hearing officer failed to make any findings of fact with regard to the dates the DWC-52s were filed for the second and third quarters.

We note that under Rule 130.104(b), the carrier is required to send a DWC-52 for a subsequent quarter with either the first payment for a quarter of SIBs to which the claimant is determined to be entitled or with the carrier’s determination of non-entitlement for that quarter. See APD 021776, decided August 28, 2002.  The duty of a carrier to send the application arises only with either the first payment of SIBs or a determination of non-entitlement for any quarter. See APD 020047, decided February 21, 2002. As previously noted, the dates of the applicable SIBs quarters and qualifying periods will change based on the change in the IR. See Rules 130.104 and 130.105.

We reverse the hearing officer’s determinations that the carrier is not relieved of liability for SIBs because of the claimant’s alleged failure to timely file a DWC-52 for the second and third quarters and remand the issues of whether the carrier is relieved of liability because of the claimant’s failure to timely file a DWC-52 for the second and third quarters to the hearing officer to examine the evidence and make a determination regarding these issues based on the correct dates. The hearing officer, at his discretion, may receive additional evidence from the parties on the issues of whether the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file DWC-52s for the second and third quarters.

SUMMARY

We reverse the hearing officer’s decision that the claimant has a 19% IR and we render a new decision that the claimant’s IR is 18%.

We reverse the hearing officer’s determinations that the claimant is not entitled to SIBs for the first, second, and third quarters and remand the issues of SIBs entitlement for the first, second, and third quarters to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determinations that the carrier is not relieved of liability for SIBs because of the claimant’s alleged failure to timely file DWC-52s for the second and third quarters and remand the issues of whether the carrier is relieved of liability for the claimant’s failure to timely file a DWC-52 for the second and third quarters to the hearing officer for further action 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 Division, pursuant to Section 410.202, as amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of time in which a request for appeal or a response must be filed. See APD 060721, decided June 12, 2006.

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

RON O. WRIGHT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

  1. In this case, the WP IR of the claimant using the ROM measurements of Dr. D for both the right and left shoulder would result in 18% whether Dr. D rounded the 85° to 80° or 90°.

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 10, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) is eligible for supplemental income benefits (SIBs) for the second quarter, August 30 through November 28, 2011; (2) the claimant is eligible for SIBs for the third quarter, November 29, 2011, through February 27, 2012; (3) the claimant is entitled to SIBs for the fourth quarter, February 28 through May 28, 2012; and (4) the appellant (carrier) is relieved of liability for SIBs because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for the entire second and third quarters. The carrier appeals the hearing officer’s determinations that the claimant is eligible for second and third quarters SIBs and that the claimant is entitled to SIBs for the fourth quarter. The appeal file does not contain a response from the claimant. The hearing officer’s determination that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the entire second and third quarters was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that the claimant sustained a compensable injury on [date of injury], which resulted in an impairment rating (IR) of 15% or greater; the claimant had not commuted any portion of the impairment income benefits (IIBs); the filing date for the second quarter was August 23, 2011; and the filing date for the third quarter was November 22, 2011. The parties additionally stipulated to the qualifying dates for the second, third, and fourth quarter. However, the hearing officer mistakenly noted that the parties stipulated that the qualifying period for the second quarter of SIBs was from May 8 through August 16, 2011. A review of the record reflects that the parties actually stipulated that the qualifying period for the second quarter of SIBs was from May 18 through August 16, 2011.

The hearing officer’s determination that the claimant is entitled to SIBs for the fourth quarter, February 28 through May 28, 2012, is supported by sufficient evidence and is affirmed. That portion of the hearing officer’s determination that the claimant is eligible for SIBs for the third quarter, November 29, 2011, through February 27, 2012, is supported by sufficient evidence and is affirmed. As previously noted, the hearing officer’s determination that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the entire second and third quarters was not appealed and has become final pursuant to Section 410.169.

ELIGIBILITY FOR SECOND QUARTER SIBS

Section 408.142 as amended by the 79th Legislature, effective September 1, 2005, references the requirements of Section 408.1415 regarding work search compliance standards.  Section 408.1415(a) states that the Texas Department of Insurance, Division of Workers’ Compensation commissioner by rule shall adopt compliance standards for SIBs recipients.  28 TEX. ADMIN. CODE § 130.102(b) (Rule 130.102(b)) sets forth the eligibility criteria for SIBs. Rule 130.102(b) provides that an injured employee who has an IR of 15% or greater, who has not commuted any IIBs, who has not permanently lost entitlement to SIBs and who has completed and filed a DWC-52 in accordance with this subchapter is eligible to receive SIBs if, during the qualifying period, the injured employee: (1) has earned less than 80% of the injured employee’s average weekly wage as a direct result of the impairment from the compensable injury; and (2) has demonstrated an active effort to obtain employment in accordance with Section 408.1415 and this section. The hearing officer found that the claimant did not file a DWC-52 for the second quarter and that finding was not appealed. Filing a DWC-52 is a requirement that has to be met in order to become eligible for SIBs according to Rule 130.102(b). The hearing officer found that the claimant did not file a DWC-52 for the second quarter. Accordingly, the hearing officer erred in determining that the claimant is eligible for SIBs for the second quarter because the claimant did not meet the eligibility criteria set forth in Rule 130.102(b). That portion of the hearing officer’s determination that the claimant is eligible for SIBs for the second quarter, August 30 through November 28, 2011, is reversed and a new decision rendered that the claimant is not eligible for SIBs for the second quarter, August 30 through November 28, 2011.

SUMMARY

We affirm the hearing officer’s determination that the claimant is entitled to SIBs for the fourth quarter, February 28 through May 28, 2012. We affirm that portion of the hearing officer’s determination that the claimant is eligible for SIBs for the third quarter, November 29, 2011, through February 27, 2012. As previously noted, the hearing officer’s determination that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the entire second and third quarters was not appealed and has become final pursuant to Section 410.169.

We reverse that portion of the hearing officer’s determination that the claimant is eligible for SIBs for the second quarter, August 30 through November 28, 2011, and render a new decision that the claimant is not eligible for SIBs for the second quarter, August 30 through November 28, 2011.

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

NATIONAL REGISTERED AGENTS, INC.

16055 SPACE CENTER BOULEVARD, SUITE 235

HOUSTON, TEXAS 77062-6212.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 25, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the second quarter, January 14 through April 13, 2012; and (2) the appellant (self-insured) did not waive the right to dispute entitlement to the claimant’s entitlement to second quarter SIBs by failing to timely request a benefit review conference (BRC). The self-insured appeals the hearing officer’s determination of the claimant’s entitlement to SIBs under a theory of total inability to work. The appeal file does not contain a response from the claimant.

The hearing officer’s determination that the self-insured did not waive the right to dispute entitlement to the claimant’s entitlement to second quarter SIBs by failing to timely request a BRC was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The parties stipulated that: (1) the claimant sustained a compensable injury on [date of injury]; (2) the claimant reached statutory maximum medical improvement from her compensable injury on December 3, 2010, with 15% impairment rating as determined by [Dr. P], a doctor appointed by the treating doctor; (3) the claimant has not commuted any portion of her impairment income benefits; (4) the dates for the second quarter of SIBs are from January 14 through April 13, 2012; (5) the dates for the qualifying period for second quarter SIBs are from October 2 through December 31, 2011; (6) the number of work searches required per week in [County 1] (the applicable county) is five; and (7) there have been no job applications sufficient to meet the requirement for the five applications per week.[1]

Eligibility criteria for SIBs entitlement are set forth in Section 408.142.  Section 408.142 as amended by the 79th Legislature, effective September 1, 2005, references the requirements of Section 408.1415 regarding work search compliance standards. Section 408.1415(a) states that the Texas Department of Insurance, Division of Workers’ Compensation commissioner by rule shall adopt compliance standards for SIBs recipients.  28 TEX. ADMIN. CODE §§ 130.100-130.109 (Rules 130.100-130.109) effective July 1, 2009, govern the eligibility of SIBs.

The claimant’s theory of entitlement to SIBs for the second quarter is based on a total inability to work. There is no evidence regarding work search efforts, return to work efforts, or involvement with vocational rehabilitation programs or the Texas Workforce Commission. Rule 130.102(d)(1) provides, in pertinent part, that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the following work search requirements each week during the entire qualifying period:

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(E)has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work.

The claimant attached to her Application for [SIBs] (DWC-52) for the second quarter, a letter of her treating doctor, [Dr. L], dated March 5, 2012, as the narrative report from a doctor which specifically explains how the compensable injury causes a total inability to work. In that letter, Dr. L states in pertinent:

To Whom It May Concern:

The following includes answers to questions concerning [the claimant’s] inability to work.

  1. 1)How the compensable injury caused total inability to work from [October 2 through December 21, 2011]?

    [The claimant] was suffering from a failed cervical spine fusion that resulted in chronic pain that affected her cognitive abilities as well as perform [sic] in any type of sedentary or physical full or part time employment. [The claimant] was also under the influence of several different prescription medications prescribed by [Dr. V] [sic] [(Dr. V)] that would make her a liability to any employer and possibly a hazard to other employees and to herself unless she was in a controlled environment and at times needing assistance to get around.

The March 5, 2012, letter of Dr. L in evidence addresses the claimant’s claimed inability to work only for the period, October 2 through December 21, 2011, but does not constitute a narrative from a doctor which specifically explains how the compensable injury causes a total inability to work for each week of the qualifying period for the second quarter of SIBs, which includes the period December 22 through December 31, 2011. There is no medical narrative in evidence from Dr. L, or from any other doctor, that addresses the claimant’s claimed total inability to work from December 22 through December 31, 2011 (the ending date of the qualifying period for second quarter SIBs). Therefore, the claimant did not establish entitlement to second quarter SIBs because she failed to meet the requirement of a narrative report from a doctor which specifically explains how the compensable injury causes a total inability to work each week during the entire qualifying period. See Rule 130.102(d)(1)(E).

Accordingly, we hold that the hearing officer’s finding that during the qualifying period for the second quarter of SIBs that the claimant was unable to perform any type of work in any capacity is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.  We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the second quarter of SIBs and render a new decision that the claimant is not entitled to SIBs for the second quarter.

The true corporate name of the insurance carrier is WAL-MART ASSOCIATES, INC. (a certified self-insured) and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that the hearing officer omitted from his decision the stipulation that there have been no job applications although the stipulation is reflected in the recording of the CCH.

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 12, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the two issues before him, the hearing officer determined that: (1) the appellant/cross-respondent (claimant) is entitled to supplemental income benefits (SIBs) for the second quarter, December 8, 2011, through March 7, 2012, but he will only receive SIBs from January 19, 2012, through March 7, 2012, by virtue of his failure to timely file his second quarter Application for [SIBs] (DWC-52); and (2) the respondent/cross-appellant (carrier) is relieved of liability for SIBs because of the claimant’s failure to timely file his DWC-52 for the second quarter from December 8, 2011, through January 18, 2012.

The claimant appealed the hearing officer’s determination that he will only receive SIBs from January 19, 2012, through March 7, 2012, by virtue of his failure to timely file his second quarter DWC-52 and that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the second quarter. The carrier responded, urging affirmance. The carrier also cross-appealed the hearing officer’s determination that the claimant is entitled to SIBs for the second quarter, December 8, 2011, through March 7, 2012. The appeal file does not contain a response to the carrier’s cross-appeal.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that: (1) the claimant sustained a compensable injury on [date of injury], which resulted in an impairment rating of 15% or greater; (2) the claimant has not commuted any portion of the impairment income benefits; (3) the qualifying period for the second quarter of SIBs was from August 26, 2011, through November 24, 2011; and (4) the Texas Workforce Commission Local Workforce Development Board has determined three weekly job searches for the county the claimant lives in, [County 1], are required for unemployment compensation for the qualifying period.

SECOND QUARTER SIBS

That portion of the hearing officer’s determination that the claimant is entitled to SIBs for the second quarter, December 8, 2011, through March 7, 2012, is supported by sufficient evidence and is therefore affirmed.

TIMELINESS OF FILING CLAIMANT’S DWC-52

The claimant’s theory for second quarter SIBs entitlement is work search contacts. In evidence is the claimant’s DWC-52, which reflects the claimant’s DWC-52 for second quarter SIBs was due on December 1, 2011. The evidence reflects that the claimant initially filed his DWC-52 for the second quarter on November 30, 2011. The claimant attached to his DWC-52 dated November 30, 2011, a Detailed Job Search/Employer Contact Log (Contact Log) for weeks 1 through 10 and 12 through 13 of the qualifying period documenting his work searches; however, the claimant’s Contact Log did not include any information regarding week 11 of the qualifying period. The claimant submitted a Contact Log documenting the four job contacts he had made during week 11 of the qualifying period after the December 1, 2011, due date.[1]

The hearing officer noted in the Background Information section of his decision the following:

As for the timeliness of [the] [c]laimant’s [DWC-52], it cannot be considered timely. [The] [c]laimant did not provide evidence of a weekly job search for [week 11] to the [c]arrier until January 18, 2012. Without evidence of job searches for this week [the] [c]laimant would not have been eligible for SIBs for the [second] quarter. [The] [c]arrier would not have to have paid without this information so it cannot be said the [DWC-52] was complete until this information was provided. [The] [c]arrier is not liable for SIBs for the second quarter from December 8, 2011, through January 18, 2012.

The hearing officer found that the carrier received the claimant’s completed second quarter DWC-52 on January 18, 2012, and determined the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the second quarter.

Section 408.143 provides in pertinent part:

After the commissioner’s initial determination of [SIBs], the employee must file a statement with the insurance carrier stating:

* * * *

(3)that the employee has complied with the requirements adopted under Section 408.1415.

(b)The statement required under this section must be filed quarterly on a form and in the manner provided by the commissioner. The commissioner may modify the filing period as appropriate to an individual case.

(c)Failure to file a statement under this section relieves the insurance carrier of liability for [SIBs] for the period during which a statement is not filed.

28 TEX. ADMIN. CODE § 130.101 (Rule 130.101) provides in part that an application for SIBs, required pursuant to Section 408.143(b), contain a statement, with supporting documentation, that the employee has complied with Section 408.1415. Rule 130.102, regarding eligibility for SIBs, requires an injured employee to complete and file an application for SIBs.

In the case on appeal, the claimant initially filed a DWC-52 for the second quarter qualifying period prior to the due date. It is uncontested that while the claimant submitted with his DWC-52 documentation of job search contacts he made during the second qualifying period to show compliance with Section 408.1415, he failed to include any documentation of job search contacts for week 11 of the qualifying period. The question becomes whether or not the claimant’s failure to include a Contact Log or supporting documentation for one week of the qualifying period renders his DWC-52 “incomplete,” and therefore a failure to timely file his DWC-52.

A similar situation was discussed in Appeals Panel Decision (APD) 021719, decided August 26, 2002. In that case, the claimant’s position at the CCH on the good faith job search requirements under the SIBs rules in effect at the time of the qualifying period was that he searched for employment during every week of the qualifying period, and that he also was enrolled in a Texas Rehabilitation Commission-sponsored program. The claimant supplemented his original DWC-52 with additional job contacts at the benefit review conference. The carrier argued that a claimant’s failure to file a complete DWC-52 by the due date constitutes a failure to file at all. We rejected that argument in that case, and stated that the completeness of a DWC-52 goes to the weight it will be given, not to whether that form has been timely filed.

Although APD 021719, supra, was decided prior to the current SIBs rules, we find the holding in that case remains applicable in the case on appeal. Further, we note that nowhere do the Act or Rules specifically explain what constitutes a complete DWC-52, nor do the Act or Rules require an injured employee to provide all evidence regarding SIBs eligibility at the time of filing, and we decline to read into the Act or Rules any such requirement. Therefore, we hold the claimant in this case timely filed his DWC-52 for the second quarter. Accordingly, we reverse that portion of the hearing officer’s SIBs determination that the claimant will only receive SIBs from January 19, 2012, through March 7, 2012, by virtue of his failure to timely file his second quarter DWC-52, by striking that language.

Further, we reverse the hearing officer’s determination that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the second quarter from December 8, 2011, through January 18, 2012, and render a new decision that the carrier is not relieved of liability for SIBs because the claimant timely filed a DWC-52 for the second quarter.

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. RON O. WRIGHT, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that the evidence contains two different dates on which the claimant submitted a Contact Log for week 11 of the qualifying period. The hearing officer found the claimant submitted the Contact Log on January 18, 2012, which was one of the dates found in evidence.

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