SIBS-5th Quarter Archives

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 May 6, 2020, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the fifth, sixth, or seventh quarter; (2) the respondent (carrier) is relieved of liability for SIBs because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for the fifth quarter from September 10 through December 9, 2019; and (3) the claimant has permanently lost entitlement to SIBs benefits pursuant to Section 408.146(c). The claimant appealed, disputing the ALJ’s determinations of SIBs entitlement for the fifth, sixth, and seventh quarters; permanent loss of entitlement to SIBs as well as the ALJ’s determination 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. The carrier responded, urging affirmance of the disputed determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury, which resulted in an impairment rating of 15% or greater; the qualifying period for the fifth quarter of SIBs was from May 29 through August 27, 2019; the qualifying period for the sixth quarter of SIBs was from August 28 through November 26, 2019; and the qualifying period for the seventh quarter of SIBs was from November 27, 2019, through February 25, 2020. It was undisputed that the claimant sustained an injury to his right hand on (date of injury). We note that the ALJ’s signature in her decision is mistakenly dated May 6, 2019, rather than May 6, 2020.

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 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. The claimant’s theory of entitlement for SIBs for the fifth, sixth, and seventh quarters was that he had a total inability to work. The ALJ found that during the qualifying periods for the fifth, sixth, and seventh SIBs quarters: the claimant was unemployed; the claimant did not actively participate in a vocational rehabilitation program; the claimant did not demonstrate an active effort to obtain employment each week during the entire qualifying periods; the claimant had some ability to work; and the claimant did not demonstrate that he had reasonable grounds for failing to comply with the work search requirements under Rule 130.102(d).

The ALJ’s determination that the claimant is not entitled to SIBs for the fifth, sixth, or seventh quarter of SIBs is supported by sufficient evidence and is affirmed.

PERMANENT LOSS OF ENTITLEMENT TO SIBS

Section 408.146(c) provides that 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. Rule 130.106(a) similarly provides that an injured employee who is not entitled to SIBs for a period of four consecutive quarters permanently loses entitlement to such benefits.

Once it has been determined that the claimant was not entitled to SIBs for a period of four consecutive quarters, the claimant permanently loses entitlement to SIBs. In evidence was a prior decision and order from a CCH held on January 16, 2020, that determined that the claimant was not entitled to SIBs for the first, second, third, or fourth quarter. Additionally, in evidence is a letter dated March 4, 2020, stating that the Appeals Panel did not issue a written decision regarding the January 16, 2020, CCH and the ALJ’s decision became final. Section 410.205(b) provides that the decision of the appeals panel regarding benefits is binding during the pendency of an appeal under Subchapter F or G (relating to judicial review). The ALJ’s determination that the claimant has permanently lost entitlement to SIBs pursuant to Section 408.146(c) 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. See also Appeals Panel Decision 191783, decided November 7, 2019.

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 fifth quarter, and if so, for what period? It is undisputed that the fifth quarter for SIBs was from September 10 through December 9, 2019. The ALJ found that the carrier received the claimant’s DWC-52 for the fifth quarter on November 26, 2019. That finding is supported by sufficient evidence. However, the ALJ mistakenly determined that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the fifth quarter from September 10 through December 9, 2019, the entire fifth quarter. We affirm that portion of the ALJ’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 fifth quarter from September 10 through November 25, 2019. 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 fifth quarter of SIBs from November 26 through December 9, 2019, and render a new decision that the carrier is not relieved of liability for SIBs for the period of November 26 through December 9, 2019, based on the claimant’s filing of a DWC-52 for the fifth quarter on November 26, 2019. However, once the claimant permanently lost entitlement to SIBs he cannot subsequently be found to be entitled to SIBs for a succeeding quarter on either the merits or by waiver.

SUMMARY

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the fifth, sixth, or seventh quarter of SIBs.

We affirm the ALJ’s determination that the claimant has permanently lost entitlement to SIBs pursuant to Section 408.146(c).

We affirm that portion of the ALJ’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 fifth quarter from September 10 through November 25, 2019.

We reverse that portion of the decision that the carrier is relieved of liability for SIBs for the fifth quarter of SIBs from November 26 through December 9, 2019, and render a new decision that the carrier is not relieved of liability for SIBs for the period of November 26 through December 9, 2019, based on the claimant’s filing of a DWC-52 for the fifth quarter on November 26, 2019.

The true corporate name of the insurance carrier is ARCH 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:
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 3, 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 supplemental income benefits (SIBs) for the fifth quarter, June 26 through September 24, 2019. The appellant (carrier) appealed the ALJ’s determination. The claimant filed a response to the carrier’s appeal, urging affirmance of the decision.

DECISION

Reversed and rendered.

The parties stipulated, in part, that: on (date of injury), the claimant sustained a compensable 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 fifth quarter of SIBs began on March 14, 2019 and ended on June 12, 2019; and the minimum number of job applications or work search contacts required pursuant to 28 TEX. ADMIN. CODE § 130.102(f) (Rule 130.102(f)) for the fifth quarter qualifying period is 3 per week for Harris County.

The claimant’s theories of entitlement for fifth quarter SIBs are based on both a total inability to work for the first 3 weeks of the qualifying period, March 14 through April 3, 2019, and active work search efforts for the remaining weeks of the qualifying period. The claimant, who was employed as a mover, injured his left knee while lifting a motorcycle on (date of injury). He underwent a total knee replacement on December 28, 2016, that led to complications. The implant had to be removed on May 3, 2018, and a revision total knee replacement was performed on July 26, 2018.

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:

* * * *

(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 ALJ’s finding that the claimant provided documentation of at least 3 work search contacts each week of the fifth quarter qualifying period from April 4 through June 12, 2019 (weeks 4 through 13), is supported by sufficient evidence.

In Appeals Panel Decision (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.

Regarding weeks 1 through 3 of the fifth quarter qualifying period, the claimant attached to his Application for [SIBs] (DWC-52) the June 19, 2019, report of (Dr. S), his treating doctor, as a narrative report from a doctor which purportedly explains how the compensable injury caused a total inability to work. Regarding the claimant’s ability to work, Dr. S stated:

Due to his medical condition, he has been unable to work. He has difficulty with household chores and has not been able to participate in recreational activities. He is de-conditioned due to overall inactivity. He is unable to work in any capacity for the period of [March 14, 2019] to [March 28, 2019]. Due to his pain and functional limitations, he is unable to walk and stand for prolonged periods of time. He is unable to do heavy lifting, stoop or squat.

Dr. S’s narrative does not specifically explain how the compensable injury caused a total inability to work in any capacity. Additionally, a Work Status Report (DWC-73) from Dr. S dated March 28, 2019, indicates that the claimant can return to work with restrictions as of that date.

In evidence is a report from (Dr. C), the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation to determine return to work for SIBs for the period of December 13, 2018, to the date of exam, March 19, 2019. Dr. C stated the following for this period:

The claimant has had ongoing issues regarding his knee surgeries, including an infection in his knee as a result of one of the knee surgeries. He is still currently under the care of an infectious specialist doctor and has not been able to return to work as a mover, a very heavy job classification. He should be able to return to work with restrictions, in a capacity that does not require the use of his left knee or leg.

Dr. C’s report and attached DWC-73 indicate that the claimant can return to work in a restricted capacity; therefore, they constitute other records that show the claimant is able to return to work.

Because there is no narrative report from a doctor that specifically explains how the compensable injury caused a total inability to work in any capacity during the first 3 weeks of the fifth quarter qualifying period and because other records in evidence show that the claimant was able to return to work during this period, the claimant failed to demonstrate an active effort to obtain employment each week during the entire qualifying period. Accordingly, we reverse the ALJ’s determination that the claimant is entitled to SIBs for the fifth quarter, June 26 through September 24, 2019, and render a new decision that the claimant is not entitled to SIBs for the fifth quarter, June 26 through September 24, 2019.

The true corporate name of the insurance carrier is VANLINER 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 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.

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

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 August 29, 2018, 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 entitled to supplemental income benefits (SIBs) for the fifth quarter from April 9 through July 8, 2017; (2) the respondent (carrier) did not waive its right to contest the claimant’s entitlement to SIBs for the fifth quarter by failing to timely request a benefit review conference (BRC); and (3) the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for the fifth quarter for the entire fifth quarter.

The claimant appealed the ALJ’s determinations on carrier waiver and timely filing. The carrier responded, urging affirmance of the ALJ’s determinations. The ALJ’s determination that the claimant is entitled to SIBs for the fifth quarter from April 9 through July 8, 2017, has not been appealed and has become final pursuant to Section 410.169.

DECISION

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

The evidence reflects that the claimant sustained a compensable injury on (date of injury), resulting in a 26% impairment rating (IR).

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).

CLERICAL CORRECTIONS

On appeal the claimant states that the ALJ made errors in the written stipulations which “seem different than what the parties stipulated to at the CCH,” specifically Findings of Fact Nos. 1.B through 1.D and 1.G. We have reviewed the record and note that Findings of Fact No. 1.B. (employer) and 1.D (IR) conform to the stipulations made by the parties at the CCH; however, Finding of Fact Nos. 1.C (carrier) and 1.G. (work search) are incorrect.

In Finding of Fact No. 1, the ALJ states that the parties stipulated to the following facts:

1.C.On (date of injury),^[1] [e]mployer provided workers’ compensation insurance with TPCIGA for Lumbermens Underwriting Alliance Carrier.

1.G.The [DWC-52] sent to [the] [c]laimant by TPCIGA on January 13, 2017 listed a minimum of 5 work search efforts for each quarter of the qualifying period of the fifth quarter.

A review of the record reveals that the parties’ stipulations were as follows:

1.C.On (date of injury), [e]mployer provided workers’ compensation insurance with Lumbermens Underwriting Alliance, an impaired carrier (emphasis added).

1.G.The [DWC-52] sent to [the] [c]laimant by TPCIGA on January 13, 2017, listed 5 minimum work search efforts for each week of the qualifying period for the fifth quarter (emphasis added).

We note that the ALJ listed TPCG for Lumbermens Underwriting Alliance as the true corporate name of the insurance carrier. However, the carrier information sheet in evidence lists the carrier’s true corporate name as TPCIGA for Lumbermens Underwriting Alliance, An Impaired Carrier, Estate No. 852.

SIBS CARRIER WAIVER

The evidence reflects that a decision and order was mailed to the parties on June 8, 2017, in which the ALJ determined that the claimant was entitled to SIBs for the fourth quarter and that decision was not appealed. At the CCH the parties acknowledged that the carrier had paid the fourth quarter. The evidence reflects that the carrier received the claimant’s DWC-52 for the fifth quarter on June 12, 2018, more than a year after the Texas Department of Insurance, Division of Workers’ Compensation’s (Division) determination on the fourth quarter of SIBs. In evidence is the carrier’s notice of non-entitlement for the fifth quarter of SIBs dated June 19, 2018. Also, in evidence is a certified mail receipt addressed to the claimant with a notation stating, in part, “5th Q 52” and a date of delivery of June 25, 2018. There is no evidence the carrier filed a request for a BRC to dispute the claimant’s entitlement to SIBs for the fifth quarter.

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].

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 [Division] 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 this case, the prior quarter of SIBs was paid by the carrier at the time the carrier received the claimant’s DWC-52 for the subsequent quarter of SIBs and the carrier did not request a BRC to dispute entitlement to SIBs for the fifth quarter. Accordingly, we reverse the ALJ’s determination that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the fifth quarter by failing to timely request a BRC and we render a new decision that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fifth quarter by failing to timely request a BRC.

TIMELY FILING OF THE FIFTH QUARTER OF SIBS APPLICATION

The evidence reflects that the claimant filed a DWC-52 for the fifth quarter on June 12, 2018. Although we rendered in this decision that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fifth quarter, the evidence established that the claimant did not file his DWC-52 for the fifth quarter until June 12, 2018; therefore, the claimant shall not receive the fifth quarter SIBs from April 9 through July 8, 2017. See Appeals Panel Decision 130837, decided May 20, 2013. Accordingly, the ALJ’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 fifth quarter for the entire fifth quarter is supported by sufficient evidence and is affirmed.

SUMMARY

We reform Finding of Fact No.1 as follows:

1.C.On (date of injury), [e]mployer provided workers’ compensation insurance with Lumbermens Underwriting Alliance, an impaired carrier.

1.G.The [DWC-52] sent to [the] [c]laimant by TPCIGA on January 13, 2017, listed 5 minimum work search efforts for each week of the qualifying period for the fifth quarter.

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

We affirm the ALJ’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 fifth quarter for the entire fifth quarter.

The true corporate name of the insurance carrier is TPCIGA FOR LUMBERMENS UNDERWRITING ALLIANCE, AN IMPAIRED CARRIER, ESTATE NO. 852 and the name and address of its registered agent for service of process is

MARVIN KELLY

9120 BURNET ROAD

AUSTIN, TEXAS 78758.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

We note that at the CCH the ALJ referenced the date of injury as (date), rather than (date of injury); however, the ALJ’s written stipulation referring to the date of injury as (date of injury), is supported by the record and is correct.

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

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.

* * * *

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

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

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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on January 23, 2014, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the fifth quarter. The appellant (self-insured) appealed, disputing the hearing officer’s determination of the claimant’s entitlement to fifth quarter SIBs. The self-insured argued that the claimant’s reduced earnings is not a direct result of the impairment from the compensable injury and that the claimant’s job search activities through monster.com should not satisfy the requirement of active job search efforts. The appeal file does not contain a response from the claimant.

DECISION

Reversed and rendered.

The parties stipulated that: (1) on [date of injury], the claimant sustained a compensable injury resulting in a Texas Department of Insurance, Division of Workers’ Compensation (Division) finding of an impairment rating of 15% or greater; (2) the claimant commuted no portion of the impairment income benefits; (3) the qualifying period for the fifth quarter of SIBs was from April 18 through July 17, 2013; (4) during the qualifying period, the claimant was unemployed; (5) the claimant is a resident of [County], Texas; and (6) residents of [County] are required to make at least 6 job search contacts per week to qualify for 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 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;

(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 hearing officer noted in the discussion portion of her decision that the claimant provided documentation of her work search efforts. The hearing officer further noted that the parties stipulated that the claimant was required to make at least 6 job search contacts per week to qualify for SIBs and that the claimant had done so by completing online job applications through monster.com.

A review of the Detailed Job Search/Employer Contact Log of the Application for [SIBs] (DWC-52) for the fifth quarter qualifying period (April 18 through July 17, 2013) lists at least 6 job contacts for 12 weeks of the qualifying period but fails to list any job searches for the 13th week of the qualifying period. In her DWC-52 under Section 5: Wages During Qualifying Period, the claimant misidentifies the ending date of each week of the qualifying period. The claimant identifies the first week as ending on April 23, 2013, rather than the actual ending date of April 24, 2013, and was one day off of the ending date in each of the succeeding weeks of the qualifying period. The 12th week of the qualifying period actually began on July 4, 2013, and ended on July 10, 2013, with the 13th week beginning on July 11, 2013, and ending on July 17, 2013. The claimant states in her DWC-52 that she made job searches during week 12 and 13 of the qualifying period. However, a review of the record reflects that the claimant made 6 job searches on July 8, 2013, and 7 job searches on July 10, 2013, for a total of 13 job searches for the 12th week. The record does not include any documentation of a job search conducted during the 13th week of the qualifying period, July 11 through July 17, 2013.

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) or a private vocational rehabilitation provider. Rule 130.101(8) defines VRP as any program, provided by DARS, 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 that is included in the Registry of Private Providers 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. A VRP, also known as an Individual Plan for Employment at DARS, 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.

In evidence is an Individualized Plan for Employment (IPE) from DARS which identifies services provided from September 13, 2012, through January 31, 2013. There is also a letter from a dentist to DARS confirming that as of May 8, 2012, the claimant had successfully completed a 200 hour internship. The claimant testified that the letter contains a typographical error and that the internship was completed as of May 8, 2013. However, we note that even if the hearing officer was persuaded by the claimant’s testimony regarding the correct date, there was no evidence that the claimant performed any activity under her IPE in the 13th week of the qualifying period of the fifth quarter 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.” 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). See also Appeals Panel Decision 101722, decided January 12, 2011. The claimant presented no evidence of any other active work search efforts for week 13 of the fifth quarter qualifying period of SIBs. Therefore, the hearing officer’s SIBs determination 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 claimant is entitled to SIBs for the fifth quarter and we render a new decision that the claimant is not entitled to SIBs for the fifth quarter.

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

For service in person the address is:

JONATHAN D. BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR

AUSTIN, TEXAS 78701.

For service by mail the address is:

JONATHAN D. BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

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

(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);

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

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 August 19, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that the compensable injury extends to right knee osteophytosis and chondromalacia, and that the respondent (claimant) is entitled to Supplemental Income Benefits (SIBs) for the fifth quarter, February 13 through May 14, 2013. The appellant (carrier) appeals the hearing officer’s determinations, contending that the evidence does not support the hearing officer’s determinations. The appeal file does not contain a response from the claimant. We note that the hearing officer’s decision and order mistakenly identifies the carrier’s representative at the CCH as [RG].

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated 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 period for the fifth quarter of SIBs was from November 2, 2012, through January 31, 2013; during the qualifying period for the fifth quarter of SIBs the claimant was unemployed; and that the Texas Workforce Commission Local Workforce Development Board has determined that three weekly job searches are required in [County], where the claimant now resides, for unemployment compensation for the qualifying period in question. The claimant testified she injured her back, right side, and right knee when she fell off a chair to the ground, and that as she fell her right leg wrapped around the leg of the chair.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury extends to right knee osteophytosis and chondromalacia is supported by sufficient evidence and is affirmed.

SIBs

Section 410.168 provides that a hearing officer’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. 28 TEX. ADMIN. CODE § 142.16 (Rule 142.16) provides that a hearing officer’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 hearing officer states in Conclusion of Law No. 4 and in the Decision portion of the decision and order that the claimant is entitled to SIBs for the fifth quarter, February 13 through May 14, 2013. The hearing officer found in Finding of Fact No. 3 that during the qualifying period of the fifth quarter of SIBs the claimant’s unemployment was a direct result of her impairment from the compensable injury. The claimant’s theories of entitlement to fifth quarter SIBs were a total inability to work and an active work search effort documented by job applications. The hearing officer made no findings of fact regarding either of the claimant’s theories of entitlement to fifth quarter SIBs. Because the hearing officer’s decision contains no findings of fact regarding the issue of entitlement to fifth quarter SIBs, which was an issue properly before the hearing officer to resolve, it does not comply with Section 410.168 and Rule 142.16. We therefore reverse the hearing officer’s determination that the claimant is entitled to SIBs for the fifth quarter, February 13 through May 14, 2013, as being incomplete, and we remand the issue of SIBs entitlement for the fifth quarter for the hearing officer to make findings of fact regarding fifth quarter SIBs.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury extends to right knee osteophytosis and chondromalacia.

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the fifth quarter, February 13 through May 14, 2013, as being incomplete, and we remand the issue of SIBs entitlement for the fifth quarter to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to make findings of fact and corresponding conclusions of law and a decision regarding whether the claimant is entitled to SIBs for the fifth quarter, February 13 through May 14, 2013. No new evidence is to be taken.

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 Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE 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.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on October 30, 2012, and continued on May 3, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the sole disputed issue by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the fifth quarter, August 28 through November 26, 2012. The appellant (carrier) appealed the hearing officer’s determination, contending that there is no narrative report that specifically explains that the claimant has a total inability to work and the medical records in evidence show that the claimant has an ability to work. The claimant responded, urging affirmance.

DECISION

Reversed and rendered.

The claimant testified that he was employed as a maintenance engineer at a hotel and he fell off a 14-foot ladder onto his back, sustaining an injury to his back and left wrist on [date of injury]. The parties stipulated that: the claimant sustained a compensable injury on [date of injury], which resulted in an impairment rating of 20%; the claimant did not commute any portion of the impairment income benefits; the fifth quarter dates are August 28 through November 26, 2012, and the fifth quarter dates for the qualifying period are May 16 through August 14, 2012. The Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed [Dr. A] as the second designated doctor for the purpose of determining the claimant’s ability to return to work during the qualifying period in dispute for SIBs.

The claimant’s theory of entitlement to SIBs for the fifth quarter is based on a total inability to work. The hearing officer found that during the qualifying period for the fifth quarter the claimant was unable to work in any capacity. In the Background Information section of the decision the hearing officer stated that Dr. A opined that the claimant could not return to work during the qualifying period for the fifth quarter of SIBs. Further, the hearing officer stated that Dr. A’s report was more persuasive than the other medical evidence.

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 for 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:

* * * *

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

The hearing officer relied on Dr. A’s report dated February 4, 2013, as a narrative report from a doctor that purportedly explains how the compensable injury causes a total inability to work. In that report, Dr. A noted that the claimant “has a failed back syndrome and lumbar disc disease” and “has a chronic back pain problem with chronic lumbago.” With regard to the claimant’s ability to work, Dr. A stated in his report that:

[The claimant] is only employable in a very limited fashion which is probably not realistic. If an ideal job could be found for him, it would involve something on the order of his being able to sit or lie down or move whenever necessary. I do not know of any such job that is available. A sedentary type job would be possible if he could get one which would allow him to move about at will. He would almost have to be self employed in order to be employable at all. I think for all intents and purposes with [the claimant’s] past history he is not employable in his present condition. In spite of the fact that he does show some signs of symptom magnification, I do not find this unusual in this situation. If a suitable sedentary position could be found where he could move about from time to time pretty much at will then he would be able to accomplish that purpose. The likelihood of finding a job of that nature is pretty remote; therefore, in my opinion, he is not able to work during the periods in question.

Although Dr. A concludes that the claimant is not able to work, he also states that the claimant has an ability to work in that the claimant is employable in a very limited capacity and could work in a sedentary type job. Dr. A’s narrative does not specifically explain how the compensable injury causes a total inability to work. See APD 130881, decided June 3, 2013. The hearing officer’s finding that Dr. A opined that the claimant could not return to work in connection with SIBs is against the great weight and preponderance of the evidence.

In the background information the hearing officer states that the designated doctor’s report is more persuasive than the other medical evidence. As discussed above the designated doctor’s narrative report does not specifically explain how the compensable injury causes a total inability to work and the hearing officer does not discuss the other medical records in evidence in his decision. The hearing officer failed to identify any other narrative report from a doctor that specifically explains how the compensable injury caused a total inability to work. In evidence are other records that purport to show that the claimant has an ability to work. In a medical report dated December 15, 2011, [Dr. B], a post-designated doctor required medical examination doctor, opined that “[b]ased upon today’s evaluation the [claimant] could return to the active work force in a sedentary position.”

The Appeals Panel has held the mere existence of a medical report stating the claimant had an ability to work alone does not mandate that a hearing officer find that other records showed an ability to work. The hearing officer still may look at the evidence and determine that it failed to show this. See APD 000302, decided March 27, 2000. In this case although the hearing officer references other medical records in general, he failed to offer any explanation why they were not other records that showed an ability to work. The evidence does not support the hearing officer’s determination that the claimant is entitled to SIBs for the fifth quarter. We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the fifth quarter and render a new decision that the claimant is not entitled to SIBs for the fifth quarter.

The true corporate name of the insurance carrier is THE TRAVELERS INDEMNITY COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

D/B/A CSC-LAWYERS INCORPORATING SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

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 November 15, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The following issues were before the hearing officer:

(1)Did the impairment rating (IR) assigned by [Dr. B] on September 21, 2009, become final under 28 TEX. ADMIN. CODE § 130.102(h) (Rule 130.102(h))?
(2)What is the appellant’s (claimant) IR?
(3)Does the [date of injury], compensable injury include tendinosis of the left distal supraspinatus and infraspinatus tendons, left shoulder rotator cuff tear, SLAP tear left shoulder, aggravation of acromioclavicular arthritis, cervical radiculopathy, cervical protrusion at C5-6, aggravation of degenerative spondylolisthesis at L4-5, and depression?
(4)(As amended by the agreement of the parties) Is the claimant entitled to supplemental income benefits (SIBs) from the first quarter, August 15 through November 13, 2010; second quarter, November 14, 2010, through February 12, 2011; third quarter, February 13 through May 14, 2011; fourth quarter, May 15 through August 13, 2011; fifth quarter, August 14 through November 12, 2011; sixth quarter, November 13, 2011, through February 11, 2012; seventh quarter, February 12 through May 12, 2012; eighth quarter, May 13 through August 11, 2012; and ninth quarter, August 12 through November 10, 2012?
(5)Is the respondent (carrier) relieved of liability for SIBs because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for the second quarter, period November 14, 2010, through February 12, 2011; the third quarter, period February 13 through May 14, 2011; the fourth quarter, period May 15 through August 13, 2011; and the sixth quarter, period November 13, 2011, through February 11, 2012?
(6)Did the carrier waive its right to contest the claimant’s entitlement to SIBs for the fifth quarter, period August 14 through November 12, 2011; the seventh quarter, period February 12 through May 12, 2012; and the eighth quarter, period May 13 through August 11, 2012, by failing to timely request a benefit review conference (BRC)?

And added upon the agreement of the parties:

(1)What is the date of maximum medical improvement (MMI)?

The hearing officer resolved the disputed issues by deciding: (1) the certification of MMI and IR assigned by Dr. B on September 21, 2009, did not become final under Rule 130.102(h); (2) the claimant’s IR is 0%; (3) the compensable injury of [date of injury], does not include left shoulder rotator cuff tear, SLAP tear left shoulder, aggravation of acromioclavicular arthritis, cervical radiculopathy, cervical protrusion at C5-6, aggravation of degenerative spondylolisthesis at L4-5, and depression; (4) the compensable injury of [date of injury], does include tendinosis of the left distal supraspinatus and infraspinatus tendons; (5) quarters one through nine are not ripe for adjudication because the claimant’s IR is 0%; and (6) the claimant reached statutory MMI on May 9, 2009.

The claimant appealed the hearing officer’s finality under Rule 130.102(h), IR, extent-of-injury determinations adverse to him, and SIBs determinations. The claimant further contends that he timely filed a SIBs application for the first, second, third, fourth, and sixth quarters once he received the paperwork, and that the carrier waived the right to dispute the fifth, seventh, and eighth SIBs quarters by not timely filing a request for a BRC. We note that although the issue certified at the BRC and agreed to by the parties regarding the claimant’s timely filing of a DWC-52 listed the second, third, fourth, and sixth quarters of SIBs, the parties also litigated the first quarter of SIBs. We further note that the claimant did not appeal Finding of Fact No. 13, which states “[the] [c]arrier received [the] [c]laimant’s first, second, third, and fourth quarter applications on June 20, 2011.” The claimant also points out in his appeal that the hearing officer failed to comment on the carrier waiver of fifth, seventh, and eighth quarter SIBs. The carrier responded, urging affirmance.

The hearing officer’s determinations that the claimant reached statutory MMI on May 9, 2009, and that the compensable injury of [date of injury], does include tendinosis of the left distal supraspinatus and infraspinatus tendons were not appealed and have therefore become final pursuant to Section 410.169. We reform the hearing officer’s determination to clarify that the claimant reached MMI on May 9, 2009, the statutory date of MMI.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated that on [date of injury], the claimant sustained a compensable injury at least in the form of a head contusion with laceration, post-concussion syndrome, cervical sprain/strain, thoracic sprain/strain, lumbar sprain/strain, left shoulder strain, and left knee sprain.

We note that the decision and order also states that the parties stipulated to the following: “E. The [Texas Department of Insurance, Division of Workers’ Compensation (Division)]-selected designated doctor [Dr. B], M.D., certified that [the] [c]laimant reached [MMI] on May 9, 2009, and assigned a 22% [IR];” “F. [The] [c]arrier’s choice of doctor, [Dr. F], M.D., certified [the] [c]laimant reached [MMI] on May 9, 2009, and assigned a 0% [IR];” and “G. The compensable injury of [date of injury], extends to and includes tendinosis of the left distal supraspinatus and infraspinatus tendons.” However, the record reflects that the parties did not enter into these three stipulations.

FINALITY UNDER RULE 130.102(h) AND EXTENT OF INJURY

The hearing officer’s determinations that the certification of MMI and IR assigned by Dr. B on September 21, 2009, did not become final under Rule 130.102(h), and the compensable injury of [date of injury], does not include left shoulder rotator cuff tear, SLAP tear left shoulder, aggravation of acromioclavicular arthritis, cervical radiculopathy, cervical protrusion at C5-6, aggravation of degenerative spondylolisthesis at L4-5, and depression are supported by sufficient evidence and are therefore affirmed.

MMI AND IR

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.” Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Division shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. Rule 130.1(c)(3) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

The hearing officer determined that the claimant’s IR is 0% per Dr. F’s MMI/IR certification. Dr. F, the post-designated doctor required medical examination doctor, examined the claimant on September 15, 2009, to determine the claimant’s MMI and IR. Dr. F certified that the claimant reached clinical MMI on May 9, 2009, and in his narrative report dated September 15, 2009, assigned a 0% IR. We note that although Dr. F marked on the Report of Medical Evaluation (DWC-69) that he certified the claimant has permanent impairment as a result of the compensable injury, Dr. F neglected to either assign a 0% IR or state that the claimant has no impairment on the DWC-69. Dr. F’s narrative lists the following diagnoses: degenerative spondylolisthesis; status post-cervical sprain; status post-lumbar sprain; and adhesive capsulitis.

As previously discussed, the parties stipulated that the claimant sustained a compensable injury at least in the form of a head contusion with laceration; post-concussion syndrome; cervical sprain/strain; thoracic sprain/strain; lumbar sprain/strain; left shoulder strain; and left knee sprain. Additionally, some of the hearing officer’s extent-of-injury determinations have become final and the rest are supported by sufficient evidence and have been affirmed. Therefore, the conditions that have been agreed to or administratively determined to be part of the compensable injury are as follows: head contusion with laceration; post-concussion syndrome; cervical sprain/strain; thoracic sprain/strain; lumbar sprain/strain; left shoulder strain; left knee sprain; and tendinosis of the left distal supraspinatus and infraspinatus tendons.

Dr. F did not consider and rate all of the conditions that are part of the compensable injury. Specifically, Dr. F did not consider a head contusion with laceration; post-concussion syndrome; thoracic sprain/strain; left shoulder strain; left knee sprain; and tendinosis of the left distal supraspinatus and infraspinatus tendons. Additionally, Dr. F considered conditions not determined to be a part of the compensable injury, degenerative spondylolisthesis and adhesive capsulitis. We therefore reverse the hearing officer’s determination that the claimant’s IR is 0%. See Appeals Panel Decision (APD) 110463, decided June 13, 2011; and APD 101567, decided December 20, 2010.

There is only one other assignment of IR with a May 9, 2009, date of MMI, which is that of Dr. B, the designated doctor. Dr. B examined the claimant on September 21, 2009, to determine the claimant’s MMI and IR. On that date Dr. B certified that the claimant reached MMI on the statutory MMI date of May 9, 2009, and assigned a 22% IR. In assessing his 22% IR, Dr. B combined a 6% whole person (WP) impairment for the claimant’s left shoulder, with a 15% WP impairment under Diagnosis-Related Estimates Cervicothoracic Category III: Radiculopathy, which yielded a 20% WP impairment. Dr. B also assessed an additional 3% impairment for lack of treatment under page 2/9 of the Guides to the Evaluation of Permanent Impairment, fourth edition (first, second, third, or fourth printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. B combined the 20% with the 3% for 22% WP impairment.

In his narrative report dated September 21, 2009, Dr. B lists the following as compensable diagnoses: post-concussion syndrome; cervical protrusion and stenosis of C5-6; lumbar strain; left shoulder impingement; and scars, low back. Dr. B did not consider and rate all of the conditions that have been agreed to and administratively determined to be part of the compensable injury. Specifically, Dr. B did not consider head contusion with laceration; cervical sprain/strain; thoracic sprain/strain; left shoulder strain; left knee sprain; and tendinosis of the left distal supraspinatus and infraspinatus tendons. Additionally, Dr. B considered conditions not determined to be a part of the compensable injury: cervical protrusion and stenosis of C5-6; left shoulder impingement; and scars, low back. Accordingly, his 22% IR cannot be adopted. See APD 110267, decided April 19, 2011, and APD 043168, decided January 20, 2005.

We note that in a response to a letter of clarification dated January 15, 2010, Dr. B stated he received criticism for his use of the “effects of treatment” on page 2/9 of the AMA Guides. Dr. B further commented that:

. . . the 3% was assigned due to the fact that the [claimant] had an ongoing painful condition, for which he takes medications. Those medications have an effect on the [claimant’s] body that is not adequately calculated in the range of motion assessment. The oral anti-inflammatories cause harm to the kidneys and the narcotics can cause sedation. The 3% impairment is appropriate to calculate that impairment and is provided for by the [AMA Guides] on page [2/9].

The portion of the AMA Guides relied upon by Dr. B to assess 3% impairment for “lack of treatment” is not applicable in the claimant’s circumstances. There was no evidence that the claimant was taking medication which resulted in apparent total remission of his condition, nor any evidence establishing that the medications taken by the claimant have caused impairment. See APD 090692-s, decided July 14, 2009.

Since the hearing officer’s determination that the claimant’s IR is 0% has been reversed and there is no other IR in evidence that can be adopted, we remand the IR issue to the hearing officer for further action consistent with this decision.

SIBS

The hearing officer determined that SIBs for the first through ninth quarters are not ripe for adjudication because the claimant’s IR is 0%. Given our reversal of the hearing officer’s determination that the claimant’s IR is 0%, we reverse the hearing officer’s determination of SIBs for the first through ninth quarters are not ripe for adjudication because the claimant’s IR is 0%, and remand the issue of first through ninth quarter SIBs to the hearing officer to make a determination of SIBs entitlement upon a determination of the IR consistent with this decision.

Based on her determination that the disputed quarters of SIBs are not ripe for adjudication because the claimant’s IR is 0%, the hearing officer made no determination regarding whether the carrier is relieved from liability for the first, second, third, fourth, and sixth quarters of SIBs because of the claimant’s failure to timely file a DWC-52 for those quarters, and whether the carrier waived its right to contest the claimant’s entitlement to the fifth, seventh, and eighth quarters of SIBs by failing to timely request a BRC. We therefore reverse the hearing officer’s decision as being incomplete and remand the issues of whether the carrier is relieved from liability for the first, second, third, fourth, and sixth quarters of SIBs because of the claimant’s failure to timely file a DWC-52 for those quarters, and whether the carrier waived its right to contest the claimant’s entitlement to the fifth, seventh, and eighth quarters of SIBs by failing to timely request a BRC to the hearing officer to make a determination on these issues.

SUMMARY

We affirm the hearing officer’s determinations that the certification of MMI and IR assigned by Dr. B on September 21, 2009, did not become final under Rule 130.102(h); and that the compensable injury of [date of injury], does not include left shoulder rotator cuff tear, SLAP tear left shoulder, aggravation of acromioclavicular arthritis, cervical radiculopathy, cervical protrusion at C5-6, aggravation of degenerative spondylolisthesis at L4-5, and depression.

We reverse the hearing officer’s determination that the claimant’s IR is 0%, and we remand the issue of IR to the hearing officer to make a determination of IR consistent with this decision.

We reverse the hearing officer’s determination that SIBs quarters one through nine are not ripe for adjudication because the claimant’s IR is 0%, and we remand the issue of first through ninth quarter SIBs to the hearing officer to make a determination of SIBs entitlement consistent with this decision.

We reverse the hearing officer’s decision as being incomplete and remand the issues of whether the carrier is relieved from liability for the first, second, third, fourth, and sixth quarters of SIBs because of the claimant’s failure to timely file a DWC-52 for those quarters, and whether the carrier waived its right to contest the claimant’s entitlement to the fifth, seventh, and eighth quarters of SIBs by failing to timely request a BRC to the hearing officer to make a determination on these issues.

REMAND INSTRUCTIONS

Dr. B is the designated doctor in this case. On remand, the hearing officer is to determine whether Dr. B is still qualified and available to be the designated doctor. If Dr. B is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s IR for the [date of injury], compensable injury.

The hearing officer is to advise the designated doctor that the compensable injury of [date of injury], includes head contusion with laceration; post-concussion syndrome; cervical sprain/strain; thoracic sprain/strain; lumbar sprain/strain; left shoulder strain; and left knee sprain as agreed to by the parties, as well as tendinosis of the left distal supraspinatus and infraspinatus tendons as administratively determined. Further, the hearing officer is to advise the designated doctor that the [date of injury], compensable injury does not include left shoulder rotator cuff tear; SLAP tear left shoulder; aggravation of acromioclavicular arthritis; cervical radiculopathy; cervical protrusion at C5-6; aggravation of degenerative spondylolisthesis at L4-5; and depression.

We note that, for the reasons discussed above, the portion of the AMA Guides relied upon by Dr. B to assess 3% impairment for “lack of treatment” is not applicable in the claimant’s circumstances.

The hearing officer is to request the designated doctor to assign an IR for the claimant’s [date of injury], compensable injury based on the claimant’s condition as of the May 9, 2009, date of MMI, considering the claimant’s medical record and the certifying examination.

The parties are to be provided with the designated doctor’s new assignment of IR, and are to be allowed an opportunity to respond. The hearing officer is then to make a determination on IR consistent with this decision. The hearing officer is then to make a determination on SIBs for the first through ninth quarters consistent with this decision. The hearing officer is then to make a determination on whether the carrier is relieved from liability for the first, second, third, fourth, and sixth quarters of SIBs because of the claimant’s failure to timely file a DWC-52 for those quarters, and whether the carrier waived its right to contest the claimant’s entitlement to the fifth, seventh, and eighth quarters of SIBs by failing to timely request a BRC.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

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

MR. RON O. WRIGHT, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge