This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 1, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the third quarter, April 24, 2022, through July 23, 2022; (2) the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022; and (3) the appellant (carrier) timely filed a request for a benefit review conference (BRC) and did not waive its right to contest the claimant’s entitlement to SIBs for the third quarter. The carrier appealed the ALJ’s determination regarding fourth quarter SIBs entitlement. There is no response from the claimant in the appeal file.

The ALJ’s determinations that:  the claimant is not entitled to SIBs for the third quarter, April 24, 2022, through July 23, 2022; and the carrier timely filed a request for a BRC and did not waive its right to contest the claimant’s entitlement to SIBs for the third quarter were not appealed have become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The parties stipulated, in part, that: (1) the claimant sustained a compensable injury on (date of injury), that resulted in an impairment rating of 15% or greater; (2) the claimant has not commuted any portion of his impairment income benefits; (3) the qualifying period for the third quarter was from January 10, 2022, through April 10, 2022; and (4) the qualifying period for the fourth quarter was from April 11, 2022, through July 10, 2022. The claimant was injured on (date of injury), when he fell off a ladder.

SIBS

The ALJ determined that the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022, based on a total inability to work. In Finding of Fact No. 3.H., the ALJ found that (Dr. V) narrative for the fourth quarter of SIBs persuasively explained how the compensable injury caused an inability to perform any type of work in any capacity. He also determined in Conclusion of Law No. 4 that the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022. However, in his discussion of the evidence, the ALJ stated that, “[b]ased on the evidence presented, [the] [c]laimant did not perform the required number of work search efforts each week of the qualifying period for the [third] or [fourth] SIBs quarters. In addition, the narratives from Dr. [V] did not persuasively explain how the compensable injury caused an inability to perform any type of work in any capacity.” The ALJ’s discussion of the evidence is inconsistent with his determination of entitlement to fourth quarter SIBs. Accordingly, we reverse the ALJ’s determination that the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022, and remand the issue of whether the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022, to the ALJ for further action consistent with this decision.  See Appeals Panel Decision (APD) 211383, decided October 7, 2021; and APD 210422, decided May 26, 2021.

REMAND INSTRUCTIONS

On remand the ALJ is to make a determination regarding whether the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022, that is supported by the evidence and to clarify the inconsistency between his findings and determinations and the discussion of 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 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 AMERICAN ZURICH INSURANCE COMPANY 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 78701-3218.

Cristina Beceiro
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 March 7, 2022, with the record closing on March 11, 2022, 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 supplemental income benefits (SIBs) for the fourth quarter, November 11, 2021, through February 9, 2022. The appellant (carrier) appealed the ALJ’s determination. The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and as a result he had at least a 15% impairment rating; the claimant has not commuted any portion of his impairment income benefits; and the qualifying period for the fourth quarter of SIBs began on July 30, 2021, and ran through October 28, 2021. The claimant testified that the compensable injury sustained on (date of injury), resulted in an amputation of his right arm below the elbow.

Eligibility criteria for SIBs entitlement are set forth in Section 408.142.  Section 408.142 as amended by the 79th Legislature, effective September 1, 2005, references the requirements of Section 408.1415 regarding work search compliance standards.  Section 408.1415(a) states, in part, that the Texas Department of Insurance, Division of Workers’ Compensation (Division) commissioner by rule shall adopt compliance standards for SIBs recipients.  28 Tex. Admin. Code §§ 130.100-130.109 (Rules 130.100-130.109), effective July 1, 2009, govern the eligibility of SIBs.  Rule 130.101(4) provides, in part, that a qualifying period that begins on or after July 1, 2009, is subject to the provisions of this subchapter, and a qualifying period that begins prior to July 1, 2009, remains subject to the rules in effect on the date the qualifying period begins.  

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.

The claimant’s theory for entitlement to SIBs for the fourth quarter was based in part on an active work search. The ALJ stated in his discussion that the claimant was not required to conduct a work search during the first week of the fourth quarter qualifying period, July 30, 2021, through August 5, 2021, pursuant to Commissioner’s Bulletin # B-0012-20. This is supported by sufficient evidence. On March 27, 2020, the Commissioner of Workers’ Compensation issued Commissioner’s Bulletin # B-0012-20, which, in part, suspended work search compliance standards for SIBs under Section 408.1415(a) and Rule 130.102(d) due to COVID-19. Work search compliance standards for SIBs resumed for each full week of qualifying periods beginning on and after August 2, 2021, pursuant to Commissioner’s Bulletin # B-0018-21 dated July 2, 2021. The ALJ also stated that for weeks two and three of the qualifying period the claimant performed the required number of work searches, and therefore the ALJ found that the claimant demonstrated an active effort to obtain employment for those two weeks. The ALJ’s finding is supported by sufficient evidence.

The claimant’s other theory for entitlement to fourth quarter SIBs for the remaining weeks of the fourth quarter qualifying period is based on an active participation in a VRP.  Section 408.1415(a)(1) provides that to be eligible to receive SIBs, a recipient must provide evidence satisfactory to the Division of active participation in a VRP conducted by the Department of Assistive and Rehabilitative Services (DARS)^[1] or a private vocational rehabilitation provider.  Rule 130.101(8), effective on April 15, 2018, defines a VRP as any program, provided by the TWC, a comparable federally-funded rehabilitation program in another state under the Rehabilitation Act of 1973, as amended, or a private provider of vocational rehabilitation services, for the provision of vocational rehabilitation services designed to assist the injured employee to return to work that includes a VRP.  Rule 130.101(8) further provides that a VRP, also known as an Individual Plan for Employment (IPE) at TWC, includes, at a minimum, an employment goal, any intermediate goals, a description of the services to be provided or arranged, the start and end dates of the described services, and the injured employee’s responsibilities for the successful completion of the plan.     

It is undisputed that the claimant’s IPE required him to enroll as a full-time student and maintain a 2.0 grade point average (GPA). The evidence established that although the claimant had initially enrolled in 13 semester hours during the fourth quarter qualifying period, he did not complete enough semester hours to qualify as a full-time student. The evidence also established that the claimant was unable to maintain a 2.0 GPA during that time. The ALJ specifically found that the claimant complied with the IPE, explaining his rationale in his discussion as follows:

[The] [c]laimant must show that at the time of the fourth quarter qualifying period he was enrolled in at least 12 hours of schooling. He persuasively testified that he was enrolled in 13 hours during the qualifying period and took an incomplete in one course after the fourth quarter qualifying period.  Since the school did not issue grades during the fourth quarter qualifying period, [the] [c]laimant argued that he could not be out of compliance with the IPE. This argument is persuasive. Additionally, in evidence is a letter from [(Ms. L-R)], [the] [c]laimant’s vocational rehabilitation counsellor. [Ms. L-R] did not state that [the] [c]laimant was out of compliance during the fourth quarter qualifying period.

We disagree that the claimant was in compliance with the IPE. As noted above, the IPE required the claimant to be enrolled on a full-time basis and maintain a 2.0 GPA. The evidence reflects the claimant did neither of these things. The statement from Ms. L-R discussed by the ALJ is in evidence. Ms. L-R noted that from July 30, 2021, to October 28, 2021, the claimant was participating in vocational rehabilitation services and schooling, and that per policy the claimant maintained contact with his counselor. Ms. L-R also noted that the claimant had “been working to meet goals set up by his [IPE] that he and VRC composed.” The ALJ is correct that Ms. L-R did not state the claimant was out of compliance during the fourth quarter qualifying period. However, Ms. L-R did not state that the claimant was in compliance during that period, and we do not view her statement as sufficient evidence to establish the claimant was in compliance with his IPE during the fourth quarter qualifying period. Under the facts of this case, the evidence did not establish that the claimant was in compliance with the IPE, and as such the claimant did not demonstrate an active effort to obtain employment under Rule 130.102(d)(1). Accordingly, we reverse the ALJ’s determination that the claimant is entitled to SIBs for the fourth quarter, November 11, 2021, through February 9, 2022.

Rule 130.102(d)(2) provides that an injured employee who has not met at least one of the work search requirements in any week during the qualifying period is not entitled to SIBs unless the injured employee can demonstrate that he or she had reasonable grounds for failing to comply with the work search requirements under this section. The ALJ made no finding in his Decision and Order as to whether the claimant had reasonable grounds under the evidence presented for failing to comply with work search requirements during the weeks the claimant went to school. Accordingly, we remand the issue of whether the claimant is entitled to SIBs for the fourth quarter, November 11, 2021, through February 9, 2022, to the ALJ for further action consistent with this decision.  

SUMMARY

We reverse the ALJ’s determination that the claimant is entitled to SIBs for the fourth quarter, November 11, 2021, through February 9, 2022, and we remand the issue of whether the claimant is entitled to SIBs for the fourth quarter, November 11, 2021, through February 9, 2022, to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to consider all of the evidence, make findings of fact regarding whether the claimant has demonstrated reasonable grounds for failing to comply with the work search requirements during the weeks the claimant relied on participation in a VRP under Rule 130.102(d)(1), and render conclusions of law and a decision regarding whether the claimant is entitled to SIBs for the fourth quarter, November 11, 2021, through February 9, 2022, 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 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 NEW HAMPSHIRE INSURANCE COMPANY 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 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

1. Effective September 1, 2016, DARS was dissolved and its vocational rehabilitation services were transferred to TWC. ↑

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 February 1, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the sole disputed issue by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the fourth quarter. The appellant (carrier) appealed, disputing the ALJ’s determination. The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Reversed and remanded for reconstruction of the record.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that resulted in an impairment rating of 15% or greater; that the claimant has not commuted any portion of the impairment income benefits; and that the fourth quarter of SIBs ran from November 11, 2020, through February 9, 2021, with a corresponding qualifying period that ran from July 30, 2020, through October 28, 2020. The claimant testified he was injured on (date of injury), when he fell through the attic in which he was working.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibit 1; claimant’s Exhibits 1 through 7, and carrier’s Exhibits A through M. The carrier’s exhibit list states that carrier’s Exhibit M contains 3 pages; however, the case file provided to us for review contains only pages 1 and 2. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibit. See Appeals Panel Decision (APD) 210136, decided March 26, 2021.

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 Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

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

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A 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 1, 2016, reopened on February 16, 2016, and held open until February 29, 2016, in Tyler, 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 fourth quarter; and (2) the compensable injury of (date of injury), extends to post-traumatic stress disorder (PTSD).

The appellant (carrier) appealed the hearing officer’s determinations. The carrier contends that the hearing officer erred in reopening the record to obtain and admit evidence that was neither exchanged nor offered by either party. The carrier also contends that the evidence does not support the hearing officer’s extent of injury and SIBs determinations. The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Reversed and rendered.

The parties stipulated in part that the claimant sustained compensable injuries on (date of injury), of a head contusion, post-concussion syndrome, neck sprain/strain, left shoulder sprain/strain, and left knee sprain/strain, with an impairment rating of 15% or greater, and that the claimant’s qualifying period for the fourth quarter was from March 14 through June 19, 2015. The claimant testified he was injured in a motor vehicle accident. We note that the decision states that Hearing Officer’s Exhibits HO-1 and HO-2 were admitted; however, the hearing officer also admitted HO-3 after the February 1, 2016, CCH.

EVIDENCE ADMITTED

The carrier contends that the hearing officer improperly reopened the record to admit evidence after the CCH that was never exchanged with the carrier. To obtain a reversal of a judgment based on the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles.  Appeals Panel Decision (APD) 043000, decided January 12, 2005; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).

A letter in the hearing file from the hearing officer dated February 16, 2016, to the carrier’s adjuster states in part the following:

As a [h]earing [o]fficer, I have the responsibility and duty to fully develop the record in each case that comes before me. I have, therefore, reopened the record in [the case on appeal], and directed the ombudsman for [the claimant] to provide me with the examination reports from (Dr. M).

Another letter in the hearing file from the hearing officer dated February 18, 2016, to the carrier’s adjuster stated that all of the reports from Dr. M obtained from the ombudsman were included and admitted as Hearing Officer Exhibit 3. We note that included with these records is a letter from Dr. M dated January 26, 2016, that was previously exchanged and admitted without objection from the carrier as Claimant’s Exhibit 12 page 18.

Section 410.163(b) provides that a hearing officer “shall ensure the preservation of the rights of the parties and the full development of facts required for the determination to be made.” In APD 992056, decided November 1, 1999, an extent of injury case, the Appeals Panel noted that Section 410.163(b) does not grant the hearing officer the right to become a “surrogate party at the CCH,” and that a hearing officer is not to become an advocate for either party. The Appeals Panel further stated that “it is the parties themselves who are primarily responsible for presenting their case and protecting their own interests,” and held that it was “improper for the hearing officer to shore up the claimant’s case under the guise of ensuring a full development of the record.” In APD 92272, decided August 6, 1992, which is a case involving the issue of compensability, the Appeals Panel noted that the hearing officer acts as an impartial judge of the facts and is not an advocate for any party. This may appear to be a fine line at times, but it is one that must be observed to have a dispute resolution system that is, and appears to be, absolutely fair, impartial, and just.

The records from Dr. M admitted by the hearing officer after the CCH consist of Dr. M’s diagnosis of PTSD and a discussion of psychological testing administered to the claimant dated April 29, 2014, and progress notes dating from May 2014 through May 2015. A review of the record reveals that neither party sought the admittance of Dr. M’s records dated April 29, 2014, through May 2015, that the hearing officer admitted into evidence after the CCH; instead, the hearing officer unilaterally reopened the record to direct the ombudsman to provide him with medical records from Dr. M, and upon receipt of those documents admitted them into evidence. The hearing officer in this case exceeded the authority to fully develop the facts under Section 410.163(b) and abused his discretion when he reopened the record to request and obtain from the ombudsman medical records that neither party sought to admit into the record and were not exchanged with or disclosed to the carrier prior to the hearing officer’s admittance of those records after the CCH. Accordingly, we will not consider any of the records from Dr. M dated April 29, 2014, through May 2015 that were erroneously admitted by the hearing officer after the CCH.

EXTENT OF INJURY

The hearing officer determined that the compensable injury of (date of injury), extends to PTSD.

The Texas courts have long established the general rule that “expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience” of the fact finder.  Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007).  The Appeals Panel has previously held that proof of causation must be established to a reasonable medical probability by expert evidence where the subject is so complex that a fact finder lacks the ability from common knowledge to find a causal connection.  APD 022301, decided October 23, 2002.  See also City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.-San Antonio 2009, no pet.) citing Guevara.

The Texas Department of Insurance, Division of Workers’ Compensation appointed (Dr. L) to determine the extent of the claimant’s compensable injury. Dr. L examined the claimant on November 23, 2015, and opined that PTSD is part of the compensable injury. Dr. L explained that PTSD, in his medical opinion and in all medical probability and based on his review of the available medical records, the claimant’s medical history, and Dr. L’s analysis of the mechanism of injury and examination, was well-established in the medical records. Dr. L stated that “[b]ut for the occurrence of the sentinel compensable event, [the claimant] would not have developed PTSD; therefore, in all reasonable medical probability, this is part of the compensable injury.” Dr. L does not provide an explanation of how the mechanism of injury caused PTSD. There are no other records in evidence that explain how the mechanism of injury caused PTSD.

As there are no records in evidence, ^[1] including Dr. L’s extent-of-injury opinion, that explain how the mechanism of injury caused PTSD, we reverse the hearing officer’s determination that the compensable injury of (date of injury), extends to PTSD, and we render a new decision that the compensable injury of (date of injury), does not extend to PTSD, without consideration of the exhibits the hearing officer erroneously admitted after the CCH.

SIBs

The claimant’s theory of entitlement to SIBs for the fourth quarter is based on a total inability to work.  The hearing officer found that during the qualifying period for the fourth quarter the claimant had no ability to work, and noted in his Discussion that Dr. M stated in a letter dated January 26, 2016,^[2] that the “claimant was unable to work during the qualifying period for the fourth quarter due to the ‘severity of his PTSD and associated emotional reactivity and mood instability.’” The hearing officer also noted that a November 2014 functional capacity evaluation (FCE) determined that the claimant demonstrated a “less than sedentary” physical demand level, and that “[t]here are sufficient narratives supporting the claimant’s complete inability to work at this time. . . .”

28 TEX. ADMIN. CODE § 130.102(d)(1) (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.

In evidence is the January 26, 2016, letter from Dr. M discussed by the hearing officer in his Discussion regarding the claimant’s ability to work. As noted above Dr. M’s January 26, 2016, letter was previously exchanged and admitted at the CCH without objection from the carrier as Claimant’s Exhibit 12 page 18. In that letter Dr. M states that:

After review of my therapy notes during the timeframe in question ([March 14 through June 12, 2015]), it is my opinion that [the claimant] was unable to maintain competitive employment during this timeframe. As a neuropsychologist, I am unable to formally address physical limitations as it pertains to return to work. My primary concern with [the claimant] returning to work during this timeframe was related to the severity of his PTSD and associated emotional reactivity and mood instability.

Dr. M’s letter does not state that the claimant has a total inability to work. None of the medical reports in evidence,^[3] including the November 2014, FCE, constitute a narrative report from a doctor which specifically explains how the compensable injury caused a total inability to work in any capacity. Additionally, we have rendered a new decision that the (date of injury), compensable injury does not extend to PTSD. Accordingly, we reverse the hearing officer’s determination that the claimant is entitled to SIBs for the fourth quarter, and we render a new decision that the claimant is not entitled to SIBs for the fourth quarter, without consideration of the exhibits the hearing officer erroneously admitted after the CCH.

SUMMARY

We reverse the hearing officer’s determination that the compensable injury of (date of injury), extends to PTSD, and we render a new decision that the compensable injury of (date of injury), does not extend to PTSD.

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

The true corporate name of the insurance carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA 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 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note that none of the records from Dr. M that were erroneously admitted by the hearing officer after the February 1, 2016, CCH provide an explanation of how the mechanism of injury caused PTSD.

   ↑

2. We note that the hearing officer mistakenly states Dr. M’s letter is dated January 16, 2016.

   ↑

3. We note that none of the records from Dr. M that were erroneously admitted by the hearing officer after the February 1, 2016, CCH provide a narrative report from Dr. M that specifically explains how the compensable injury causes a total inability to work.

   ↑

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 February 2, 2016, with the record closing on February 29, 2016, in Houston, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the fourth quarter, May 1 through July 30, 2015.

The appellant (carrier) appealed the hearing officer’s determination, contending that the evidence is legally insufficient to support the hearing officer’s determination. The carrier also contends that the hearing officer abused her discretion in sending a letter of clarification (LOC) to (Dr. KR), the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation to determine the claimant’s ability to work, and relying on Dr. KR’s opinion in making her determination. The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Reversed and rendered.

The parties stipulated in part that the claimant sustained a compensable injury on (date of injury), that resulted in an impairment rating of 15% or higher. Medical records in evidence indicate the claimant was injured when a forklift ran over his left leg.

The carrier contends that the hearing officer abused her discretion in sending an LOC to Dr. KR, and that Dr. KR’s LOC response should not have been admitted into evidence. To obtain a reversal of a judgment based on the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment.  Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ).  In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles.  Appeals Panel Decision (APD) 043000, decided January 12, 2005; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). Under the circumstances of this case, we hold the hearing officer’s actions were not an abuse of discretion.

The claimant’s theory of entitlement to SIBs for the fourth quarter is based on a total inability to work.  The hearing officer found that during the qualifying period for the fourth quarter the claimant was unable to perform any type of work in any capacity, and noted in her discussion that Dr. KR’s report in response to the LOC is sufficient evidence of a total inability to work, and that his unemployment was a direct result of his compensable injury. Medical records in evidence list the claimant’s position as a pipefitter.

28 TEX. ADMIN. CODE § 130.102(d)(1) (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.

Dr. KR noted in her February 15, 2016, LOC response that she had reviewed the provided medical records, which indicated a subsequent worsening of the claimant’s condition which necessitated further treatment. Dr. KR opined that:

Given the severity of [the claimant’s] injuries from the forklift accident, along with compromised tissues from a previous motorcycle accident, it is not surprising that the claimant’s wounds, though closed at the time of my [d]esignated [d]octor [e]xamination, would have further problems healing, requiring the noted treatment. Although I placed him back to work with restrictions based on my examination of [December 1, 2014], and the [functional capacity evaluation (FCE)] performed on [December 9, 2014], his change in clinical condition by [January 8, 2015], requiring debridement and continuing to further treatment, should supersede my previous determination of return to work status.

Based on medical information provided, it is my opinion that the claimant’s medical condition worsened enough during the identified qualifying period . . . to have his work status listed as off work due to non-healing wounds that required extensive and serial treatment.

Although Dr. KR’s report states that the claimant’s work status is listed as off work, it does not state that the claimant has a total inability to work. None of the medical reports in evidence constitute a narrative report from a doctor which specifically explains how the compensable injury caused a total inability to work in any capacity. Accordingly, we reverse the hearing officer’s determination that the claimant is entitled to SIBs for the fourth quarter, May 1 through July 30, 2015, and we render a new decision that the claimant is not entitled to SIBs for the fourth quarter, May 1 through July 30, 2015.

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

MR. RICHARD GERGASKO, PRESIDENT

6210 HIGHWAY 290 EAST

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 was held on December 3, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the fourth quarter, March 12 through June 10, 2013, and the fifth quarter, June 11 through September 9, 2013. The claimant appealed, disputing the hearing officer’s determination of non-entitlement for the fourth and fifth quarters. The claimant argues the (respondent) carrier failed to offer any proof that it complied with the requirements of 28 TEX. ADMIN. CODE § 130.104(b)(5) (Rule 130.104(b)(5)). The claimant contends she was told by the adjuster for the carrier and her ombudsman that she was correctly completing her job search requirements. The carrier responded, urging affirmance of the disputed determinations of non-entitlement to fourth and fifth quarter SIBs.

DECISION

Reversed and rendered.

The parties stipulated that: (1) the claimant sustained a compensable injury on [date of injury], which resulted in an impairment rating of 15% or greater; (2) the claimant has not commuted any portion of the impairment income benefits; (3) the qualifying period for the fourth quarter of SIBs was from November 28, 2012, through February 26, 2013; (4) during the qualifying period for the fourth quarter of SIBs, the claimant was unemployed; (5) the qualifying period for the fifth quarter of SIBs was from February 27 through May 28, 2013; (6) during the qualifying period for the fifth quarter of SIBs, the claimant was unemployed; and (7) the Texas Workforce Commission Local Workforce Development Board has determined five weekly job searches for the county the claimant lives in, [W] county, are required for unemployment compensation for the qualifying periods.

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 commissioner by rule shall adopt compliance standards for SIBs recipients.  Rules 130.100-130.109, effective July 1, 2009, govern the eligibility of SIBs.

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

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

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

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

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

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

Rule 130.102(d)(2) provides that:

(2) An injured employee who has not met at least one of the work search requirements in any week during the qualifying period is not entitled to SIBs unless the injured employee can demonstrate that he or she had reasonable grounds for failing to comply with the work search requirements under this section.

The claimant’s theory of entitlement for SIBs for the fourth and fifth quarters, was based on an active work search effort documented by job applications each week during the qualifying period. It was undisputed that the claimant had applied for SIBs for the second and third quarters and that the carrier paid the claimant for the second and third quarters. The claimant’s theory of entitlement for the second and third quarters was also based on an active work search effort documented by job applications. However, the evidence reflects that for the second and third quarter qualifying periods, the claimant performed three job searches per week rather than the five job searches required for [W] County as stipulated by the parties. As previously noted, it was undisputed that the carrier paid the claimant for the second and third quarters of SIBs.

The Applications for [SIBs] (DWC-52) for both the second and third quarter were in evidence. The DWC-52 for the second quarter does not provide the number of minimum weekly work search efforts for the claimant’s county of residence. However, the DWC-52 for the third quarter lists the claimant’s county of residence as [W] and lists the number of minimum weekly work searches as three.

It is undisputed that the claimant continued to perform three job searches per week during the qualifying periods for the subsequent fourth and fifth quarters of SIBs currently in dispute. The claimant argued that she was unaware that five job searches were required for her county of residence. The claimant further argued that the carrier failed to offer any proof that it complied with the requirements of Rule 130.104(b)(5). Rule 130.104(b)(5) provides in part that:

With the first monthly payment of [SIBs] for any eligible quarter and with any insurance carrier determination of non-entitlement, the insurance carrier shall send the injured employee a copy of the [DWC-52] and the proper address to file the subsequent application. On the DWC-52 sent by the insurance carrier, the insurance carrier shall include: (5) the minimum number of work search efforts required by Rule 130.102(d)(1) and (f) of this title (relating to Eligibility for [SIBs]; Amount) during the next qualifying period.

The preamble to Rule 130.104 states adopted Rule 130.104(b) “requires the insurance carrier to advise the injured employee of the number of work search contacts required when it sends out the [DWC-52] prior to the beginning of a qualifying period.” (34 Tex.Reg. 2145, 2009). 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 Appeals Panel Decision (APD) 050280, decided April 6, 2005, and APD 021776, decided August 28, 2002.

The applications for the fourth and fifth quarter were in evidence. Additionally, in evidence was correspondence from the carrier which denied claimant’s entitlement to SIBs for the fourth and fifth quarters. Neither the fourth or fifth quarter DWC-52s provide the minimum number of work search efforts required by Rule 130.102(d)(1) and (f). The claimant testified that the insurance company never told her that she needed to apply for five jobs in each week of the qualifying period rather than three. The claimant was paid SIBs for the second and third quarter even though she only conducted three job searches per week rather than the five required for her county of residence. There was no evidence that the number of job searches required for [W] County had changed during any of the SIBs quarters for the claimant. The claimant testified that she was led to believe she was doing “the correct thing” because the carrier had paid her for the other two quarters and her husband had spoken with the carrier’s adjuster, who told him the claimant was doing everything correctly. The claimant testified that this conversation with the adjuster occurred after the second quarter of SIBs.

In its response the carrier contends that the claimant had the responsibility to know how many job searches she had to do during each week of the qualifying period and that “ignorance of the law is no excuse.” The carrier does not concede that it failed to provide the required number of job searches but states that if it did, such a failure is simply a compliance issue.

In APD 010617-s, decided May 15, 2001, the majority opinion stated that Rule 130.104(b) requires that the carrier complete the blanks on the DWC-52 provided the number of the applicable quarter, the dates of the qualifying period, the dates of the quarter, and the deadline for filing the application with the carrier before providing that form to the claimant. The majority opinion in APD 010617-s further stated it is axiomatic that accuracy on the part of the carrier in providing that information is required. In that case the carrier provided inaccurate dates for the qualifying periods in issue and the majority held that the carrier is precluded from benefitting from having done so. APD 010617-s went on to hold that as a prerequisite for advancing the argument that the claimant failed to document a weekly job search in accordance with Rule 130.102(e), the carrier is first required to comply with its obligation to accurately provide the information required in Rule 130.104(b) on the DWC-52.

Although APD 010617-s, supra, was decided prior to the current SIBs rules, we find the holding in that case remains applicable in the case on appeal. Neither the fourth or fifth quarter SIBs applications reflect that the number of job searches required for [W] County was provided by the carrier as required by Rule 130.104(b). Accordingly, we reverse the hearing officer’s determination that the claimant is not entitled to fourth and fifth quarter SIBs and render a new decision that the claimant is entitled to fourth and fifth quarter SIBs.

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

CT CORPORATION SYSTEM

350 NORTH SAINT PAUL STREET, SUITE 2900

DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Daniel R. Barry
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 21, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [date of injury], extends to depression and anxiety; (2) the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the fourth quarter; and (3) the appellant (carrier) waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a benefit review conference (BRC).^[1]

The carrier appeals the hearing officer’s determinations that: the compensable injury extends to depression and anxiety; the claimant is entitled to fourth quarter SIBs; and the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a BRC. The claimant responded, urging affirmance.

DECISION

Affirmed.

Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a)(1).  Section 410.204(a) provides in part that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1).  Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case:  (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but does not affect the outcome of the hearing.  This case is a situation that requires correction but does not affect the outcome of the hearing.

The parties stipulated that on [date of injury], the claimant sustained a compensable injury resulting in an impairment rating of 15% or greater; the qualifying period for the fourth quarter of SIBs was from August 1 through October 30, 2012; and that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed [Dr. H] as designated doctor for the purpose of extent of injury and return to work. The hearing officer noted in the Background Information portion of her decision that it was undisputed that the claimant sustained a compensable injury when he cut the index finger of his left hand as he was opening a zip tie.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury of [date of injury], extends to depression and anxiety is supported by sufficient evidence and is affirmed.

CARRIER WAIVER OF FOURTH QUARTER SIBS

The hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a BRC is supported by sufficient evidence and is affirmed.

FOURTH QUARTER SIBS

Eligibility criteria for SIBs entitlement are set forth in Section 408.142.  Section 408.142 as amended by the 79th Legislature, effective September 1, 2005, references the requirements of Section 408.1415 regarding work search compliance standards. Section 408.1415(a) states that the 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.

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

* * * *

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

The claimant attached to his Application for [SIBs] (DWC-52) for the fourth quarter, a letter from [Ms. M], a family nurse practitioner, dated October 9, 2012, as the narrative report from a doctor which specifically explains how the compensable injury causes a total inability to work.  In that letter, Ms. M explained the claimant’s symptoms in detail and stated that due to chronic pain, depression, decreased concentration and inability to use his upper extremities, the claimant remains unable to work at any job at this time. The narrative was electronically signed by Ms. M only. The hearing officer correctly notes that this narrative is insufficient since the narrative is not co-signed by a physician. Rule 130.102(d)(1)(E) requires that the narrative report be from a doctor which specifically explains how the compensable injury causes a total inability to work.

Dr. H examined the claimant on November 19, 2012. Although appointed to give an opinion on the claimant’s ability to return to work during the qualifying period for the fourth quarter of SIBs, Dr. H failed to discuss this issue in his initial narrative. In a December 21, 2012, response to a letter of clarification, Dr. H stated: “[i]t is my opinion that [the claimant] was unable to work during the time period requested.” The hearing officer determined that the claimant is entitled to SIBs for the fourth quarter, finding the claimant had no ability to work. The hearing officer stated that the narrative from Ms. M provided additional support for Dr. H’s position. The Appeals Panel has held that reports from different doctors cannot be read together to create a narrative report.  The narrative report must come from one doctor.  Appeals Panel Decision (APD) 011152, decided July 16, 2001.  In APD 002724, decided January 5, 2001, we stated that in determining whether the requirements of Rule 130.102(d)(4) (now found in Rule 130.102(d)(1)(E)) for a doctor's narrative report are met, the following will be considered: amendments; supplements, including CCH testimony from the doctor; information incorporated in the report by reference; or information from a doctor's medical records in evidence that can be reasonably incorporated in the doctor's narrative report by inference based on some connection between the report and the information in the medical records. See also APD 033152, decided January 16, 2004. In the instant case, there was not a narrative from a doctor who specifically explained how the compensable injury caused a total inability to work. Accordingly, the hearing officer’s finding that the claimant had no ability to work is not supported by sufficient evidence.

However, as previously noted the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a BRC is affirmed. Therefore, the claimant is entitled to SIBs for the fourth quarter based on carrier waiver.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury of [date of injury], extends to depression and anxiety.

We affirm the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a BRC.

We affirm the hearing officer’s determination that the claimant is entitled to SIBs for the fourth quarter because the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter.

The true corporate name of the insurance carrier is OLD REPUBLIC INSURANCE COMPANY 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 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

1. We note that the decision in the “Issues” incorrectly identifies the third quarter as the quarter in dispute for the stated waiver issue. The issue litigated and determined by the hearing officer was whether the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a BRC.

   ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 10, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) is eligible for supplemental income benefits (SIBs) for the second quarter, August 30 through November 28, 2011; (2) the claimant is eligible for SIBs for the third quarter, November 29, 2011, through February 27, 2012; (3) the claimant is entitled to SIBs for the fourth quarter, February 28 through May 28, 2012; and (4) the appellant (carrier) is relieved of liability for SIBs because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for the entire second and third quarters. The carrier appeals the hearing officer’s determinations that the claimant is eligible for second and third quarters SIBs and that the claimant is entitled to SIBs for the fourth quarter. The appeal file does not contain a response from the claimant. The hearing officer’s determination that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the entire second and third quarters was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

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

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

ELIGIBILITY FOR SECOND QUARTER SIBS

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

SUMMARY

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

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

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

NATIONAL REGISTERED AGENTS, INC.

16055 SPACE CENTER BOULEVARD, SUITE 235

HOUSTON, TEXAS 77062-6212.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge