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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 consolidated contested case hearing (CCH) was held on July 9, 2020, in (city), Texas, with (administrative law judge) as the administrative law judge (ALJ). The ALJ decided in (Docket No. 1) that the appellant/cross-respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the third quarter, December 11, 2019, through March 10, 2020. The ALJ decided in (Docket No. 2) that the claimant is entitled to SIBs for the fourth quarter, March 11 through June 9, 2020.

The claimant appealed the ALJ’s determination that she was not entitled to SIBs for the third quarter. The claimant argues that she did not understand the proper way to conduct job searches for SIBs. The respondent/cross-appellant (carrier) appealed the ALJ’s determination that the claimant is entitled to SIBs for the fourth quarter, March 11 through June 9, 2020. The carrier also appealed arguing the ALJ failed to make a finding regarding direct result for the qualifying period of the fourth quarter. Neither party responded to the other’s appeal.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that: (1) the claimant sustained a compensable 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 third quarter of SIBs was from August 29 through November 27, 2019; (3) the qualifying period for the fourth quarter of SIBs was from November 28, 2019 through February 26, 2020; and (4) the claimant’s county of residence, (County), requires three job searches each week of the qualifying period.

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 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(c) provides that an “injured employee has earned less than 80% of the employee’s average weekly wage (AWW) as a direct result of the impairment from the compensable injury if the impairment from the compensable injury is a cause of the reduced earnings.”

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 both the third and fourth quarter of SIBs was based on an active work search effort documented by job applications each week during the qualifying periods. 

THIRD QUARTER SIBS

The evidence reflects that the claimant did not perform three job searches in each week of the qualifying period for the third quarter of SIBs. The parties stipulated that for the claimant’s county of residence, three job searches are required in each week of the qualifying period. The claimant acknowledged in her appeal that she only performed two searches for two weeks (weeks four and eleven) of the qualifying period for the third quarter but argues she did not understand the proper way to conduct job searches.

The ALJ found that during the qualifying period for the third quarter, the claimant was unemployed, had some ability to work, and did not demonstrate an active effort to obtain employment by making the requisite number of job search contacts during each week of the qualifying period. The ALJ did not make a finding of fact regarding direct result for the third quarter of SIBs.

However, as previously noted, the claimant failed to make the requisite number of job searches in each week of the qualifying period for the third quarter of SIBs. Although the ALJ did not make a finding of fact regarding direct result for the qualifying period of the third quarter of SIBs, we are affirming the ALJ’s decision on the basis of the claimant’s failure to meet the active effort to obtain employment criterion.

The ALJ’s determination that the claimant is not entitled to SIBs for the third quarter is supported by sufficient evidence and is affirmed.

FOURTH QUARTER SIBS

The claimant’s application for SIBs in evidence for the fourth quarter reflects that the claimant conducted three job searches in each week of the qualifying period.

The carrier argued at the CCH that the compensable injury was limited to a fracture of the left big toe, bilateral knee contusions, and a right wrist sprain and that the claimant’s unemployment was not a direct result of the compensable injury. The carrier contends in its appeal of the fourth quarter of SIBs that the ALJ failed to make a determination on whether the claimant’s unemployment was a direct result of the compensable injury. The Appeals Panel has held that the “direct result” criteria may be established by evidence that an injured employee sustained an injury with lasting effects and could not reasonably perform the preinjury employment.  Appeals Panel Decision (APD) 030553, decided April 24, 2003.  We have also held that to meet the direct result requirement, one only need prove that the unemployment was a direct result of the compensable injury.  See APD 001786, decided September 13, 2000.

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due.    

The ALJ found that during the qualifying period for the fourth quarter, the claimant was unemployed, had some ability to work, and demonstrated an active effort to obtain employment by making the requisite number of job search contacts during each week of the qualifying period. The carrier specifically argued at the CCH that the claimant could not meet the direct result criterion for SIBs. The ALJ’s failure to make a finding of direct result was appealed by the carrier for the fourth quarter of SIBs. The ALJ failed to make a finding of direct result, which is a necessary element for SIBs entitlement. Accordingly, we reverse the ALJ’s determination that the claimant is entitled to SIBs for the fourth quarter and remand the issue of SIBs entitlement for the fourth quarter to the ALJ for further action consistent with this decision.  See APD 132339, decided December 12, 2013.

SUMMARY

The ALJ’s determination that the claimant is not entitled to SIBs for the third quarter is affirmed.

The ALJ’s determination that the claimant is entitled to SIBs for the fourth quarter is reversed and remanded to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make a specific finding whether the claimant has earned less than 80% of the claimant’s AWW as a direct result of the impairment from the compensable injury for the qualifying period of the fourth quarter of SIBs and then make a determination of entitlement to SIBs for the fourth quarter.

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 ALJ, 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 MARKEL 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.

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 February 12, 2019, with the record closing on February 27, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the respondent (claimant) is entitled to the third quarter of supplemental income benefits (SIBs). The appellant (carrier) appeals the ALJ’s determination of the claimant’s entitlement to third quarter SIBs. The claimant responds, urging affirmance of the ALJ’s determination of entitlement to SIBs for the third quarter.

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 of 15% or greater; (2) the qualifying period for the third quarter was from July 28 through October 26, 2018; and (3) during the qualifying period for the third quarter, the claimant was the resident of (city), (state), (County).

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) 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.

The claimant’s theory of entitlement to SIBs for the third quarter was that he performed the requisite number of work search efforts required for his county of residence in each week of the qualifying period. No evidence was presented that the claimant had returned to work in any capacity during the qualifying period. The ALJ made a finding of fact that during the qualifying period for the third quarter, the claimant demonstrated an active effort to obtain employment each week during the qualifying period by returning to work in a position commensurate with his ability to work. That finding is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. The ALJ failed to make a finding regarding the work search efforts documented by job applications, which was the theory of entitlement the claimant argued at the CCH. Accordingly, we reverse the ALJ’s determination that the claimant is entitled to SIBs for the third quarter and remand the issue of entitlement to third quarter SIBs to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

The ALJ shall consider all of the evidence and make a finding regarding whether the claimant demonstrated an active effort to obtain employment by performing active work search efforts as documented by job applications. The ALJ shall then make a determination of whether the claimant is entitled to SIBs for the third quarter that is supported by the evidence.

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 ALJ, 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 Appeals Panel Decision 060721, decided June 12, 2006.

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

ROBIN MILLER

5221 NORTH O’CONNOR BOULEVARD, SUITE 400

IRVING, TEXAS 75039-3711.

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 October 2, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the third quarter, March 15 through June 13, 2017.

The claimant appealed the ALJ’s determination of non-entitlement to the third quarter of SIBs arguing that the evidence established that he demonstrated an active effort to obtain employment during each week of the qualifying period for the third quarter. The respondent (carrier) responded, urging affirmance.

DECISION

Reversed and rendered.

The parties stipulated, in part, that:

(1) the claimant sustained a compensable injury on (date of injury), which resulted in an impairment rating (IR) of 15% or greater;

(2) the claimant has not commuted any portion of the impairment income benefits; and

(3) during the qualifying period for the third quarter of SIBs, the minimum number of job applications or work search contacts required for (county), the county of the claimant’s residence, was five contacts per week.

We note that the ALJ, in her Decision and Order, incorrectly stated in Finding of Fact No. 1.A. that the parties stipulated that venue is proper in the (city) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation (Division). We accordingly reform Finding of Fact No. 1.A. to conform to the stipulation actually made by the parties on the record as follows:

A. Venue is proper in the (city) Field Office of the [Division].

We note further that the ALJ incorrectly stated in Finding of Fact No. 1.F. that the parties stipulated that the qualifying period for the third quarter of SIBs is from September 1 through November 30, 2016. We reform Finding of Fact No. 1.F. to conform to the stipulation actually made by the parties on the record as follows:

F. The qualifying period for the third quarter of [SIBs] is from December 1, 2016, through March 1, 2017.

It is undisputed that the claimant sustained a compensable injury on (date of injury), when the tractor-trailer he was driving was involved in a motor vehicle accident in which the driver of the other vehicle was killed. The claimant reached maximum medical improvement (MMI) on January 13, 2015, with regard to the compensable conditions of cervical strain, right shoulder strain, right hip strain and post-traumatic stress disorder and was assigned an IR of 29%. The claimant filed an Application for [SIBs] (DWC-52) on March 13, 2017, reflecting that he had made six job search contacts during each week of the qualifying period. The carrier disputed entitlement to SIBs for the third quarter on the grounds that the claimant’s unemployment/underemployment was not a direct result of his impairment from the compensable injury.

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) provides that the Division commissioner by rule shall adopt compliance standards that require each SIBs recipient to demonstrate an active effort to obtain employment. 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 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:

(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 (TWC);

(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.

In her Finding of Fact No. 3.B., the ALJ stated:

B. [The] [c]laimant did not demonstrate an active effort to obtain employment each week during the entire qualifying period by returning to work in a position commensurate with his ability to work.

We note from the record, however, that the claimant was unemployed during the qualifying period at issue and that his theory of entitlement to SIBs for the third quarter was not that he had returned to work in a position commensurate with his ability to work pursuant to Rule 130.102(d)(1)(A) but rather that he had performed work search efforts each week during the qualifying period in dispute pursuant to Rule 130.102(d)(1)(D). In the discussion section of her Decision and Order, the ALJ indicated that she actually based her decision that the claimant is not entitled to SIBs for the quarter at issue on her belief that the claimant conducted work search efforts for positions that were not within his work restrictions and that he was not capable of performing. Her basis for this finding is the July 25, 2017, report of (Dr. W), appointed by the Division as designated doctor for the purpose of determining the claimant’s ability to return to work during the qualifying period for the third quarter of SIBs. In his report, Dr. W stated that the claimant could return to work and wrote further that “[t]he only [restriction] I would put is that the [claimant] cannot drive a commercial vehicle in his current state as he states he is a danger to other people.” However, Dr. W provided no explanation regarding what he meant by the term “commercial vehicle.” The claimant testified that he drives his personal pick-up truck around town and also drove himself 50 miles in order to attend the CCH but that he no longer possesses a commercial driver’s license.

A review of the claimant’s DWC-52 for the third quarter reveals that during the fifth week of the qualifying period (December 29, 2016, through January 4, 2017) he made six job search contacts, four of which contacts were for positions described as a warehouse delivery driver, a beverage company driver, a local pickup and delivery driver, and a commercial driver’s license (CDL) driver. No evidence was offered regarding whether any of the vehicles which the claimant would have driven in performing the duties of the positions listed above would be considered a “commercial vehicle” or whether a CDL would be required to operate any of such vehicles. However, even if one were to assume that the position listed as CDL driver required operation of a “commercial vehicle” or possession of a commercial driver’s license and discounted that work search contact, the claimant still documented the required number of job search contacts during the fifth week of the qualifying period. We hold that the ALJ erred in determining that the claimant documented only two work search efforts during the fifth week of the qualifying period which were within his work restrictions.

The ALJ’s finding that the claimant did not demonstrate an active effort to obtain employment each week during the entire qualifying period for the third quarter of SIBs is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the third quarter, March 15 through June 13, 2017, and render a new decision that the claimant is entitled to SIBs for the third quarter, March 15 through June 13, 2017.

SUMMARY

We reform Finding of Fact No. 1.A. to state that venue is proper in the (city) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

We reform Finding of Fact No. 1.F. to state that the qualifying period for the third quarter of SIBs is from December 1, 2016, through March 1, 2017.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the third quarter, March 15 through June 13, 2017, and render a new decision that the claimant is entitled to SIBs for the third quarter, March 15 through June 13, 2017.

The true corporate name of the insurance carrier is GREAT MIDWEST INSURANCE COMPANY and the name and address of its registered agent for service of process is1

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701
.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

1 We note that the ALJ’s decision recites an incorrect name and address of the registered agent for service. The insurance carrier information sheet in evidence contains the name and address listed above.

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 October 2, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the third quarter, March 15 through June 13, 2017.

The claimant appealed the ALJ’s determination of non-entitlement to the third quarter of SIBs arguing that the evidence established that he demonstrated an active effort to obtain employment during each week of the qualifying period for the third quarter. The respondent (carrier) responded, urging affirmance.

DECISION

Reversed and rendered.

The parties stipulated, in part, that: (1) the claimant sustained a compensable injury on (date of injury), which resulted in an impairment rating (IR) of 15% or greater; (2) the claimant has not commuted any portion of the impairment income benefits; and (3) during the qualifying period for the third quarter of SIBs, the minimum number of job applications or work search contacts required for (County), the county of the claimant’s residence, was five contacts per week.

We note that the ALJ, in her Decision and Order, incorrectly stated in Finding of Fact No. 1.A. that the parties stipulated that venue is proper in the (city) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation (Division). We accordingly reform Finding of Fact No. 1.A. to conform to the stipulation actually made by the parties on the record as follows:

A.Venue is proper in the (city) Field Office of the [Division].

We note further that the ALJ incorrectly stated in Finding of Fact No. 1.F. that the parties stipulated that the qualifying period for the third quarter of SIBs is from September 1 through November 30, 2016. We reform Finding of Fact No. 1.F. to conform to the stipulation actually made by the parties on the record as follows:

F.The qualifying period for the third quarter of [SIBs] is from December 1, 2016, through March 1, 2017.

It is undisputed that the claimant sustained a compensable injury on (date of injury), when the tractor-trailer he was driving was involved in a motor vehicle accident in which the driver of the other vehicle was killed. The claimant reached maximum medical improvement (MMI) on January 13, 2015, with regard to the compensable conditions of cervical strain, right shoulder strain, right hip strain and post-traumatic stress disorder and was assigned an IR of 29%. The claimant filed an Application for [SIBs] (DWC-52) on March 13, 2017, reflecting that he had made six job search contacts during each week of the qualifying period. The carrier disputed entitlement to SIBs for the third quarter on the grounds that the claimant’s unemployment/underemployment was not a direct result of his impairment from the compensable injury.

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) provides that the Division commissioner by rule shall adopt compliance standards that require each SIBs recipient to demonstrate an active effort to obtain employment. 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 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:

(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 (TWC);

 

(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.

In her Finding of Fact No. 3.B., the ALJ stated:

B.[The] [c]laimant did not demonstrate an active effort to obtain employment each week during the entire qualifying period by returning to work in a position commensurate with his ability to work.

We note from the record, however, that the claimant was unemployed during the qualifying period at issue and that his theory of entitlement to SIBs for the third quarter was not that he had returned to work in a position commensurate with his ability to work pursuant to Rule 130.102(d)(1)(A) but rather that he had performed work search efforts each week during the qualifying period in dispute pursuant to Rule 130.102(d)(1)(D). In the discussion section of her Decision and Order, the ALJ indicated that she actually based her decision that the claimant is not entitled to SIBs for the quarter at issue on her belief that the claimant conducted work search efforts for positions that were not within his work restrictions and that he was not capable of performing. Her basis for this finding is the July 25, 2017, report of (Dr. W), appointed by the Division as designated doctor for the purpose of determining the claimant’s ability to return to work during the qualifying period for the third quarter of SIBs. In his report, Dr. W stated that the claimant could return to work and wrote further that “[t]he only [restriction] I would put is that the [claimant] cannot drive a commercial vehicle in his current state as he states he is a danger to other people.” However, Dr. W provided no explanation regarding what he meant by the term “commercial vehicle.” The claimant testified that he drives his personal pick-up truck around town and also drove himself 50 miles in order to attend the CCH but that he no longer possesses a commercial driver’s license.

A review of the claimant’s DWC-52 for the third quarter reveals that during the fifth week of the qualifying period (December 29, 2016, through January 4, 2017) he made six job search contacts, four of which contacts were for positions described as a warehouse delivery driver, a beverage company driver, a local pickup and delivery driver, and a commercial driver’s license (CDL) driver. No evidence was offered regarding whether any of the vehicles which the claimant would have driven in performing the duties of the positions listed above would be considered a “commercial vehicle” or whether a CDL would be required to operate any of such vehicles. However, even if one were to assume that the position listed as CDL driver required operation of a “commercial vehicle” or possession of a commercial driver’s license and discounted that work search contact, the claimant still documented the required number of job search contacts during the fifth week of the qualifying period. We hold that the ALJ erred in determining that the claimant documented only two work search efforts during the fifth week of the qualifying period which were within his work restrictions.

The ALJ’s finding that the claimant did not demonstrate an active effort to obtain employment each week during the entire qualifying period for the third quarter of SIBs is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.  Accordingly, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the third quarter, March 15 through June 13, 2017, and render a new decision that the claimant is entitled to SIBs for the third quarter, March 15 through June 13, 2017.

SUMMARY

We reform Finding of Fact No. 1.A. to state that venue is proper in the (city) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

We reform Finding of Fact No. 1.F. to state that the qualifying period for the third quarter of SIBs is from December 1, 2016, through March 1, 2017.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the third quarter, March 15 through June 13, 2017, and render a new decision that the claimant is entitled to SIBs for the third quarter, March 15 through June 13, 2017.

The true corporate name of the insurance carrier is GREAT MIDWEST INSURANCE COMPANY and the name and address of its registered agent for service of process is[1]

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that the ALJ’s decision recites an incorrect name and address of the registered agent for service.  The insurance carrier information sheet in evidence contains the name and address listed above.

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 29, 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 entitled to supplemental income benefits (SIBs) for the third quarter, November 24, 2016, through February 22, 2017; (2) the appellant (carrier) waived its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a benefit review conference (BRC); and (3) the Request to Schedule, Reschedule, or Cancel a [BRC] (DWC-45) received on November 28, 2016, did not meet the requirements of 28 TEX. ADMIN. CODE § 141.1(d) (Rule 141.1(d)), and good cause did not exist for failing to meet these requirements.

The carrier appealed all of the hearing officer’s determinations, contending that the hearing officer’s determinations are erroneous as a matter of law and not supported by the evidence. The appeal file did not contain a response from the claimant to the carrier’s appeal.

DECISION

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 period for the third quarter of SIBs has a beginning date of November 24, 2016, and an ending date of February 22, 2017; the qualifying period for the third quarter of SIBs was from August 12 through November 10, 2016; and the minimum number of job applications or work search contacts pursuant to Rule 130.102(f) required for the third quarter qualifying period is three per week for County, the claimant’s county of residence. The claimant testified he was injured when his hand went through the blade of a running table saw.

CLERICAL CORRECTIONS

The issues contained in the BRC Report and agreed to by the parties at the CCH were as follows:

  1. 1.Is the [c]laimant entitled to [SIBs] for the third quarter, November 24, 2016, through February 22, 2017?

  2. 2.Did the carrier waive its right to contest [the] claimant’s entitlement to [SIBs] for the third quarter by failing to timely request a [BRC]?

  3. 3.Did the [DWC-45] received on November 28, 2016, meet the requirements of [Rule 141.1(d)] for the purpose of scheduling a [BRC] and, if not, does good cause exist for failing to meet the requirements?

However, the issues listed in the Statement of the Case of the decision incorrectly identify the SIBs quarter in dispute as being the seventh quarter of SIBs, April 8 through July 7, 2016, for Issue 1, and carrier waiver of the right to contest entitlement for the seventh quarter for Issue 2. The decision also incorrectly omits Issue 3 in the Statement of the Case, although we note the hearing officer did dispose of that issue in her decision.

Accordingly, we reform the decision as follows to state the correct issues as reported out of the BRC and as agreed to by the parties:

Is the claimant entitled to SIBs for the third quarter, November 24, 2016, through February 22, 2017?

Did the carrier waive its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a BRC?

Did the DWC-45 received on November 28, 2016, meet the requirements of Rule 141.1(d) for the purpose of scheduling a BRC and, if not, does good cause exist for failing to meet the requirements?

The parties also stipulated at the CCH that during the qualifying period for the third quarter of SIBs the claimant did not work or earn wages. However, the decision omits this stipulation. We reform the decision to add the following to conform to the stipulation made by the parties at the CCH:

During the qualifying period for the third quarter of SIBs the claimant did not work or earn wages.

CARRIER’S NOVEMBER 28, 2016, DWC-45 AND RULE 141.1(d)

The hearing officer found that the Texas Department of Insurance, Division of Workers’ Compensation (Division) denied the carrier’s November 28, 2016, DWC-45 on November 30, 2016. The November 30, 2016, Commissioner Order denying the carrier’s request to schedule a BRC in evidence reflects that the carrier’s request was denied because “[t]he documentation of efforts to resolve the disputed issue(s) prior to requesting a [BRC] is insufficient to meet the requirements of [Rule 141.1(d)].” The hearing officer found that the carrier failed to comply with Rule 141.1(d) by not including supporting documentation of efforts to resolve the disputed issue, and that the evidence did not demonstrate good cause for the carrier’s failure to comply with the requirements set forth in Rule 141.1(d).

Rule 141.1, effective October 1, 2010, provides in part:

(d) Request for [BRC].  A request for a [BRC] shall be made in the form and manner required by the [D]ivision.  The request shall:

1.  identify and describe the disputed issue or issues;

2.  provide details and supporting documentation of efforts made by the requesting party to resolve the disputed issues, including but not limited to, copies of the notification provided in accordance with subsection (a) of this section, correspondence, e-mails, facsimiles, records of telephone contacts, or summaries of meetings or telephone conversations . . .;

3.  contain a signature by the requesting party attesting that reasonable efforts have been made to resolve the disputed issue(s) prior to requesting a [BRC], and that any pertinent information in their possession has been provided to the other parties . . .; and

4.  be sent to the [D]ivision and opposing party or parties.

The carrier’s November 28, 2016, DWC-45 reflected that the carrier documented attempts to resolve the disputed third quarter of SIBs because it noted that the claimant was required to make three job searches each week and that the carrier had requested a complete set of job searches during the qualifying period. The hearing officer’s finding that the carrier failed to comply with Rule 141.1(d) by not including supporting documentation of efforts to resolve the disputed issues 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 determination that the November 28, 2016, DWC-45 did not meet the requirements of Rule 141.1(d), and there was no good cause for failing to meet the requirements, and we render a new decision that the November 28, 2016, DWC-45 did meet the requirements of Rule 141.1(d).

CARRIER WAIVER FOR FAILING TO TIMELY REQUEST BRC

The hearing officer determined that the claimant is entitled to SIBs for the third quarter in part because she determined that the carrier waived its right to contest the claimant’s entitlement to third quarter SIBs by failing to timely request a BRC. The hearing officer found that the carrier received the claimant’s Application for [SIBs] (DWC-52) on November 17, 2016, and filed its DWC-45 on November 28, 2016.

Section 408.147(b) provides as follows:

If an insurance carrier fails to make a request for a [BRC] within 10 days after the date of the expiration of the impairment income benefit period or within 10 days after receipt of the employee’s statement, the insurance carrier waives the right to contest entitlement to [SIBs] and the amount of [SIBs] for that period of [SIBs].

The carrier contends that it received the claimant’s DWC-52 on Friday, November 18, 2016, based upon the computation of time found in Rule 102.3. The carrier argued that while the claimant’s DWC-52, which states on the cover page that it contained 196 pages, was sent by facsimile transmission (fax) beginning at 4:20 p.m. on Thursday, November 17, 2016, the fax was not completed until 10:08 p.m.

Rule 102.3 provides in pertinent part the following:

(b) A working day is any day, Monday-Friday, other than a national holiday as defined by Texas Government Code, § 662.003(a) and the Friday after Thanksgiving Day, December 24th and December 26th. Use in this title of the term "day," rather than "working day" shall mean a calendar day.

(c) Normal business hours in the Texas workers' compensation system are 8:00 a.m. to 5:00 p.m. Central Standard Time with the exception of the Commission's El Paso field office whose normal business hours are 8:00 a.m. to 5:00 p.m. Mountain Standard Time.

(d) Any written or telephonic communications received other than during normal business hours on working days are considered received at the beginning of normal business hours on the next working day.

The carrier contends that because it did not receive the entire DWC-52, including the claimant’s documented job searches, until after working hours on November 17, 2016, the actual date of receipt should be the beginning of normal business hours on the next working day, which is November 18, 2016. Under the circumstances of this case we agree. The claimant’s theory of entitlement for third quarter SIBs was an active work search. The carrier would require all of the information relating to the claimant’s job searches during the qualifying period to conduct a review of that information to determine whether the claimant is entitled to third quarter SIBs. Accordingly, we reverse the hearing officer’s finding that the carrier received the claimant’s DWC-52 on November 17, 2016.

The evidence established that the carrier received the claimant’s DWC-52 for the third quarter of SIBs on November 18, 2016. The 10th day after November 18, 2016, is November 28, 2016. It was undisputed that the carrier filed its DWC-45 disputing the claimant’s entitlement to the third quarter of SIBs on November 28, 2016. Accordingly, we reverse the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to third quarter SIBs by failing to timely request a BRC, and we render a new decision that the carrier did not waive its right to contest the claimant’s entitlement to third quarter SIBs.

WORK SEARCH CONTACTS

The claimant’s theory of entitlement to SIBs for the third quarter is based on an active work search effort every week of the qualifying period in dispute.

Rule 130.102(d)(1) provides, in pertinent part, that an injured employee demonstrates an active effort to obtain employment by meeting at least the following work search requirement each week during the entire qualifying period:  (D) has performed active work search efforts documented by job applications.  Rule 130.102(f) provides, in part, that as provided in subsection 130.102(d)(1)(C) and (D), regarding active participation in work search efforts and active work search efforts, an injured employee shall provide documentation sufficient to establish that he or she has, each week during the qualifying period, made the minimum number of job applications and or work search contacts consistent with the work search contacts established by the [Texas Workforce Commission (TWC)] which are required for unemployment compensation in the injured employee’s county of residence pursuant to the TWC Local Workforce Development Board requirements.

The claimant testified he searched for jobs through an online company, Monster.com, and provided copies of email confirmations he received from that company in response to jobs for which he applied. The hearing officer stated in the Discussion that “the claimant met the work search efforts requirement by making at least three job applications and/or work search contacts for each week” during the third quarter qualifying period. The hearing officer found in Finding of Fact No. 3 that the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period by performing active work search efforts documented by job applications and/or work search contacts. We note that the hearing officer incorrectly identified the disputed SIBs quarter as the seventh quarter rather than the correct third quarter. A review of all the records in evidence established that the claimant did not make three contacts during the third and seventh weeks of the third quarter qualifying period, August 26 through September 1, 2016, and September 23 through September 29, 2016, respectively. The claimant did not meet the requisite number of work searches during each week of the third quarter qualifying period. We therefore reverse the hearing officer’s finding that the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period by performing active work search efforts documented by job applications and/or work search contacts.

Because the carrier’s November 28, 2016, DWC-45, which met the requirements of Rule 141.1(d), was filed timely to dispute the third quarter of SIBs, and because the claimant did not meet the requisite number of work searches during each week of the third quarter qualifying period, we reverse the hearing officer’s determination that the claimant is entitled to third quarter SIBs, and we render a new decision that the claimant is not entitled to third quarter SIBs.

SUMMARY

We reform the decision as follows to state the correct issues as agreed to by the parties:

Is the claimant entitled to SIBs for the third quarter, November 24, 2016, through February 22, 2017?

Did the carrier waive its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a BRC?

Did the DWC-45 received on November 28, 2016, meet the requirements of Rule 141.1(d) for the purpose of scheduling a BRC and, if not, does good cause exist for failing to meet the requirements?

We reform the decision to add the following to conform to the stipulation made by the parties at the CCH:

During the qualifying period for the third quarter of SIBs the claimant did not work or earn wages.

We reverse the hearing officer’s determination that the November 28, 2016, DWC-45 did not meet the requirements of Rule 141.1(d), and there was no good cause for failing to meet the requirements, and we render a new decision that the November 28, 2016, DWC-45 did meet the requirements of Rule 141.1(d).

We reverse the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to third quarter SIBs by failing to timely request a BRC, and we render a new decision that the carrier did not waive its right to contest the claimant’s entitlement to third quarter SIBs.

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

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.

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 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 was held on August 25, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the third quarter, March 9 through June 7, 2016; and (2) the respondent (carrier) did not waive its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a benefit review conference (BRC). We note that the hearing officer’s decision contains a typographical error regarding the address of the carrier’s registered agent for service of process.

The claimant appealed the hearing officer’s determination that he is not entitled to third quarter SIBs, contending the evidence does not support that determination. The carrier responded, urging affirmance. The hearing officer’s determination that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a BRC was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

The parties stipulated that the claimant sustained a compensable injury on (date of injury), with a 15% or greater impairment rating; the claimant has not commuted any portion of the impairment income benefits; the qualifying period for the third quarter of SIBs began on November 26, 2015, and ended on February 24, 2016; the minimum number of job applications or work search contacts pursuant to 28 TEX. ADMIN. CODE § 130.102(f) (Rule 130.102(f)) required for the third quarter qualifying period is three per week, for (County); and the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a BRC.

The record established that the claimant was injured while working as a grain supervisor when his foot was caught in an auger. The record established that the injury resulted in an above-knee amputation of the claimant’s left leg.

The hearing officer found in Finding of Fact No. 3.E. that:

[The] [c]laimant made only two job search efforts during the ninth week of the qualifying period, which began on Thursday, January 28, 2016, and ended on Wednesday, February 3, 2016.

However, given that the first week of the third quarter qualifying period began on November 26, 2015, and ended on December 2, 2015, the ninth week of the third quarter qualifying period actually began on Thursday, January 21, 2016, and ended on Wednesday, January 27, 2016. We reform Finding of Fact No. 3.E. to state the ninth week of the third qualifying period began on Thursday, January 21, 2016, and ended on Wednesday, January 27, 2016, to reflect the correct dates for the ninth week of the third quarter qualifying period.

The evidence established that the claimant made only two job searches during January 21 through January 27, 2016, which are the correct dates for the ninth week of the third quarter qualifying period. The hearing officer’s finding that the claimant made only two job search efforts during the ninth week of the qualifying period, as reformed above, is supported by sufficient evidence.

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 [VRP] 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 (TWC);

(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.

Rule 130.102 provides that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the specified work search requirements each week during the entire qualifying period.  The preamble to Rule 130.102 stated “[s]ubsection(d)(1) is also amended to add ‘each week’ before ‘during’ and ‘entire’ before ‘qualifying period’ to clarify that the injured employee’s work search efforts were to continue each week during the entire qualifying period.”  (34 Tex. Reg. 2140, 2009).

We note that the evidence established the claimant worked from November 26, 2015, until he was laid off on January 4, 2016, at which point he began making work search contacts. The hearing officer found that the claimant was unemployed for at least a part of the qualifying period, and that the claimant did not demonstrate an active effort to obtain employment each week during the entire qualifying period. The hearing officer made no specific finding of fact regarding the dates of the weeks the claimant worked or whether the claimant returned to work in a position which is commensurate with the claimant’s ability to work. We note also that the claimant testified he has signed up with Department of Assistive and Rehabilitative Services (DARS); however, the claimant did not testify that he has a VRP, also known as an Individualized Plan for Employment (IPE), nor was an IPE for the claimant in evidence. The hearing officer’s decision regarding third quarter SIBs does not specifically address each week of the third quarter qualifying period. However, given Finding of Fact No. 3.E., as reformed, that the claimant made only two job search efforts during the ninth week of the third quarter qualifying period is supported by sufficient evidence, the claimant would not be entitled to third quarter SIBs regardless of what the hearing officer may have found for those other weeks of the third quarter qualifying period. Accordingly, we affirm the hearing officer’s determination that the claimant is not entitled to SIBs for the third quarter, March 9 through June 7, 2016.

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.

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 April 14, 2014, in El Paso, 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 (SIBs) for the third quarter from February 8 through May 9, 2014.

The claimant appealed, disputing the hearing officer’s SIBs determination based on the sufficiency of the evidence. The respondent (carrier) responded urging affirmance.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH.  The appeal file in this case contains one compact disc and it is blank. The file indicates that there was no court reporter and the file does not contain a transcript, or 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.

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 LIBERTY INSURANCE CORPORATION and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 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°.

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