SIBS-6th 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 (CCH) was held on December 5, 2019, with the record closing on December 13, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the sole disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the sixth quarter, September 4 through December 3, 2019. The claimant appealed, contending he is entitled to SIBs for the sixth quarter. The respondent (carrier) responded, urging affirmance of the ALJ’s determination.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the qualifying period for the sixth quarter of SIBs was from May 23 through August 21, 2019; the claimant’s county of residence, (county), requires three job searches each week of the qualifying period; and the claimant was unemployed during the qualifying period for the sixth quarter of SIBs. The claimant testified he was injured when moving sheetrock.

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 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 sixth quarter is based on an active work search effort documented by job applications each week during the qualifying period. In evidence is the claimant’s sixth quarter Application for [SIBs] (DWC-52), which lists at least three job searches per week during the sixth quarter qualifying period. The claimant included with his completed DWC-52 supporting documentation in the form of printouts of confirmations of his work search efforts through indeed.com. See Appeals Panel Decision (APD) 100229-s, decided April 30, 2010, in which the Appeals Panel noted the preamble to Rule 130.102(d)(1)(D) clarifies that “work search efforts” encompass both job applications and work search contacts as described by Texas Workforce Commission rules.

The claimant testified at the CCH that he used indeed.com as an internet job search engine to make weekly job searches. The claimant’s DWC-52 reflects the claimant submitted a job application with (employer) on June 26, 2019, as one of the three job searches he made in week five of the qualifying period.

In the discussion portion of his decision the ALJ noted a report dated October 25, 2019, from (vocational rehabilitation management entity), which found deficiencies in the claimant’s reported job searches for week five, among others, of the sixth quarter qualifying period. The ALJ noted that (vocational rehabilitation management entity) contacted (employer), who confirmed they did not receive an email regarding the claimant or a resume from the claimant. The ALJ also noted that (employer) conducted a second search and confirmed by email that no application from the claimant was found. The ALJ stated the following:

[The] [c]laimant did not submit an acknowledgement or receipt from “indeed.com” for this employer like he did for many other employers. [The] [c]laimant appears to have consistently and frequently attached receipts or acknowledgements from “indeed.com” for applications he noted on the weekly logs. Therefore, the lack of a receipt or acknowledgement for . . . [employer] . . . is some evidence that [the] [c]laimant did not submit an application [for this position].

However, the ALJ erred in stating there was no receipt of acknowledgement for (employer). In evidence is a document titled “Indeed Application: Office Assistant/Receptionist.” This document reflects indeed.com sent an email to the claimant on June 26, 2019, confirming the claimant had submitted a job application for an office assistant/receptionist position with (employer).

The ALJ based his unfavorable assessment of the credibility of the claimant’s job searches, in part, on his error that there was no receipt of acknowledgement for (employer), which is a misstatement of the evidence. Because the ALJ’s determination that the claimant is not entitled to SIBs for the sixth quarter is based on a misstatement of the evidence, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the sixth quarter and we remand the issue of entitlement to sixth quarter SIBs to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to correct his misstatement of the evidence regarding the acknowledgement from indeed.com of the claimant’s job application for (employer) on June 26, 2019. The ALJ shall consider all of the evidence and make a determination of whether the claimant is entitled to SIBs for the sixth quarter.

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

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

ROBIN MILLER
5221 NORTH O’CONNOR BOULEVARD, SUITE 400
IRVING, TEXAS 75039-3711.

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 31, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the sixth quarter. The claimant appealed, disputing the ALJ’s determination of non-entitlement to SIBs for the sixth quarter. The respondent (self-insured) responded, urging affirmance of the disputed sixth quarter SIBs determination.

DECISION

Reversed and remanded.

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 sixth quarter of SIBs was from April 7, 2018, through July 6, 2018, and three is the required minimum number of work search contacts established by the Texas Workforce Commission (TWC), which are required for unemployment in the claimant’s county of residence (County) during each week of the qualifying period of the sixth 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:

(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);

(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 noted in the discussion portion of her decision that the claimant completed at least three work searches during each week of the sixth quarter qualifying period, except in week 7 which was from May 19, 2018, through May 25, 2018. The claimant testified that she mixed up the dates due to the loss of her mother, two uncles, and her dog. However, the ALJ noted that the deaths occurred in late March and early April and the claimant failed to explain why she was able to complete her job searches for weeks 1 through 6 but was more affected in week 7.

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 the TWC,^[1] a comparable federally-funded rehabilitation program in another state under the Rehabilitation Act of 1973, as amended, or a private provider of vocational rehabilitation services for the provision of vocational rehabilitation services designed to assist the injured employee to return to work that includes a vocational rehabilitation plan. A vocational rehabilitation plan, also known as an Individualized Plan for Employment (IPE) at TWC, includes, at a minimum, an employment goal, any intermediate goals, a description of the services to be provided or arranged, the start and end dates of the described services, and the injured employee’s responsibilities for the successful completion of the plan.^[2]

The ALJ notes in her discussion that the claimant did not offer an IPE into evidence to support her claim. However, a review of the evidence reflects that the claimant offered an IPE into evidence and it was admitted. The ALJ based her determination of non-entitlement to SIBs on a misstatement of the evidence. Accordingly, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the sixth quarter and remand the issue of entitlement to sixth quarter SIBs to the ALJ for further action consistent with this decision.

As previously noted, 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 specified work search requirements each week during the entire qualifying period. The preamble to Rule 130.102 stated “[s]ubsection (d)(1) is also amended to add ‘each week’ before ‘during’ and ‘entire’ before ‘qualifying period’ to clarify that the injured employee’s work search efforts were to continue each week during the entire qualifying period.” (34 Tex. Reg. 2140, 2009). See also Appeals Panel Decision (APD) 101722, decided January 12, 2011.

SUMMARY

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the sixth quarter and we remand the issue of entitlement to sixth quarter SIBs to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to correct her misstatement of the evidence regarding the IPE. The ALJ shall consider all of the evidence and make a determination of whether the claimant is entitled to SIBs for the sixth quarter.

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

STEVEN CHAPMAN, SUPERINTENDENT

1849 CENTRAL DRIVE

BEDFORD, TEXAS 76022.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

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

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We note that Rule 130.101 was amended to be effective April 15, 2018.

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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 September 13, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the sixth quarter, July 12 through October 10, 2017. The claimant appealed, disputing the ALJ’s determination that he is not entitled to SIBs for the sixth quarter. The claimant contends that the respondent (carrier) did not inform him of the change of the number of job searches required prior to the beginning of the qualifying period and that the carrier should not benefit from providing inaccurate information. The carrier responded, urging affirmance of the disputed sixth quarter SIBs determination.

DECISION

Reversed and rendered.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury which resulted in an impairment rating of 15% or greater; (2) the qualifying period for the sixthquarter is from March 30 through June 28, 2017; (3) the Texas Workforce Commission Local Workforce Development Board has determined that in January of 2017, the required number of weekly work search efforts for the county claimant lives in, Lubbock County, changed from five to seven weekly searches as a requirement for unemployment compensation; and (4) the claimant received notice of the changed number of weekly work search efforts from five to seven weekly searches on April 17, 2017.

(A)has returned to work in a position which is commensurate with the injured employee’s ability to work;
(B)has actively participated in a vocational rehabilitation program as defined in [Rule] 130.101 of this title (relating to [d]efinitions);
(C)has actively participated in work search efforts conducted through the Texas Workforce Commission;
(D)has performed active work search efforts documented by job applications; or
(E)has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work.

Rule 130.102(d)(2) provides that:

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 sixth quarter was based on an active work search effort documented by job applications each week during the qualifying period. In evidence is a Benefit Dispute Agreement (DWC-24) in which the parties agreed that the claimant was entitled to SIBs for the fifth quarter. The evidence reflects that the claimant performed six job searches per week during the qualifying period for the sixth quarter of SIBs currently in dispute.

The ALJ stated that the claimant received an initial Application for [SIBs] (DWC-52) from the carrier for the sixth quarter that noted the required number of weekly work search efforts was five. As previously mentioned, the parties stipulated that the required number of weekly work search efforts changed from five to seven in January of 2017; that the qualifying period for the sixth quarter began on March 30, 2017; and that the claimant received notice of the changed number of weekly work search efforts from five to seven weekly searches on April 17, 2017.

In its response the carrier contends that once the claimant became aware that the correct number of job searches was seven instead of five, the claimant then had a duty to make seven job contacts for the remainder of the qualifying period. The carrier concedes that the DWC-52 sent to the claimant initially for the sixth quarter contained the incorrect number of job searches required.

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.

Rule 130.102(f) provides, in part, that if the required minimum number of work search contacts changes during a qualifying period, the lesser number of work search contacts shall be the required minimum number of contacts for that period. In the instant case the parties agreed that the change in work search contacts occurred prior to the beginning of the qualifying period at issue but that the carrier provided the wrong number of work search contacts to the claimant prior to the beginning of the qualifying period. The rules do not contemplate having two different numbers of minimum weekly work search contacts during the same qualifying period.

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 providing 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. See also APD 140039, decided March 3, 2014. Accordingly, we reverse the ALJ’s determination that the claimant is not entitled to sixth quarter SIBs and render a new decision that the claimant is entitled to sixth quarter SIBs.

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

MR. RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
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 January 4, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the first quarter, sixth quarter, and seventh quarter; (2) the claimant is entitled to SIBs for the second quarter, third quarter, and fifth quarter; (3) the appellant (self-insured) waived its right to contest entitlement to SIBs for the second quarter and third quarter by failing to timely request a benefit review conference (BRC); and (4) the self-insured did not waive its right to contest entitlement to SIBs for the first quarter, fifth quarter, and sixth quarter for failing to timely request a BRC.

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

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

DECISION

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

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

REFORMED PORTIONS OF DECISION

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

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

WAIVER OF RIGHT TO CONTEST ENTITLEMENT TO THIRD QUARTER SIBs

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

ENTITLEMENT TO THIRD QUARTER SIBs

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

WAIVER OF RIGHT TO CONTEST ENTITLEMENT TO SECOND QUARTER SIBs

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

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

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

Rule 130.108(d) provides as follows:

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

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

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

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

CLAIMANT’S ENTITLEMENT TO SECOND QUARTER SIBs

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

CLAIMANT’S ENTITLEMENT TO FIFTH QUARTER SIBs

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

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

* * * *

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.

↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 23, 2015, in San Antonio, 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 sixth quarter, January 16 through April 16, 2015. The appellant (carrier) appealed the hearing officer’s determination of the sixth quarter of SIBs entitlement based on sufficiency of the evidence. The claimant responded, urging affirmance.

DECISION

Reversed and rendered.

SIXTH QUARTER SIBS

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 his impairment income benefits; (3) the qualifying period for the sixth quarter of SIBs was from October 4, 2014, through January 2, 2015; (4) during the qualifying period for the sixth quarter of SIBs, the claimant was unemployed; (5) during the qualifying period for the sixth quarter of SIBs, the minimum number of job applications or work search contacts for Kendall County was five contacts per week; (6) the Texas Department of Insurance, Division of Workers’ Compensation (Division)-selected designated doctor to determine the claimant’s ability to return to work for the purposes of SIBs was (Dr. A); and (7) on November 6, 2014, Dr. A, designated doctor, determined that the claimant was able to return to work in a sedentary capacity for the period of September 16, 2013, through the present.

The claimant testified that he injured his left knee in the course and scope of his employment on [date of injury]. The claimant had a left knee surgery on May 14, 2010. The claimant testified that he was in compliance with his Individualized Plan for Employment (IPE) by attending school full-time, and that his IPE did not require him to look for work. The claimant testified that at the end of the fall semester, he studied math and registered for the spring semester. Furthermore, the claimant testified that due to scar tissue he is unable to sit in one position or walk for a long time, and has to keep his knee propped up during the day.

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

The claimant’s theory of entitlement to SIBs for the sixth quarter is active participation in a vocational rehabilitation program (VRP). Section 408.1415(a)(1) provides that to be eligible to receive SIBs, a recipient must provide evidence satisfactory to the Division of active participation in a VRP conducted by the Department of Assistive and Rehabilitative Services (DARS) 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 IPE 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.

(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 [VRP] as defined in [Rule] 130.101 of this title (relating to [d]efinitions);

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

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

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

In evidence are three IPEs dated September 6, 2013, December 3, 2014, and January 14, 2015, which the claimant entered into with DARs. The employment goal in each of the IPEs is to earn a degree. The IPEs dated December 3, 2014, and January 14, 2015, encompass the qualifying period in dispute. The claimant’s responsibilities were to maintain and complete a full-time course load, and obtain and maintain employment after earning a bachelor’s degree.

As previously noted, the qualifying period for the sixth quarter began from October 4, 2014, through January 2, 2015, and the parties stipulated that during the qualifying period for the sixth quarter of SIBs, the claimant was unemployed. The record reflects that the claimant did not attend school during the winter break from December 22, 2014, through January 2, 2015, which encompasses weeks 12 and 13 of the qualifying period for the sixth quarter. The claimant testified that during weeks 12 and 13, he used that time to study and register for the next semester.

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

Rule 130.102(d)(2) provides that an injured employee who has not met at least one of the work search requirements in any week during the qualifying period is not entitled to SIBs unless the injured employee can demonstrate that he or she had reasonable grounds for failing to comply with the work search requirements under this section. The hearing officer made a specific written finding regarding whether the claimant had reasonable grounds for failing to make five or more job contacts during each week of the qualifying period for the sixth quarter of SIBs. In the Discussion section of her decision and order, the hearing officer stated:

While it is apparent that the [c]laimant did not document any work search efforts for weeks 12 and 13, December 20, 2014, through January 2, 2015, he was still actively involved in the IPE, and he demonstrated that he had reasonable grounds for failing to comply with the work search requirements. . . . Based on [the] [c]laimant’s limited abilities and the short period of time between semesters, the evidence is sufficient to prove that [the] [c]laimant had reasonable grounds for failing to comply with the work search requirements for weeks 12 and 13. Although [the] [c]laimant did not successfully complete all his classes for the fall semester, he was actively enrolled and participating in 12 hours of credit and maintained a GPA over 2.0, in compliance with his IPE requirements.

The preamble to Rule 130.102 states that Rule 130.102(d)(2) was added to confirm that hearing officers would continue to retain discretion in determining if an injured employee had demonstrated reasonable grounds for failure to meet at least one of the work search requirements in this section during any week during the qualifying period. (34 Tex. Reg. 2140, 2009).

In Appeals Panel Decision (APD) 100615-s, decided July 23, 2010, the hearing officer determined the claimant made a reasonable effort to fulfill her obligations in accordance with the terms of her IPE for the SIBs quarter in dispute, however the claimant did not look for work in week 12 of the qualifying period for the SIBs quarter in dispute. In that case, the claimant presented no evidence of any other active efforts during week 12 to meet the work search requirements of Rule 130.102(d)(1). The Appeals Panel reversed the hearing officer’s determination and rendered a new decision that the claimant was not entitled to SIBs for the quarter in dispute. Similarly, in APD 101913, decided February 18, 2011, the claimant contended that she did not have to perform the required work search requirements of Rule 130.102 because she was satisfactorily participating in her IPE during the qualifying period and was not required nor expected to attend class or look for work during the summer months of the qualifying period for the sixth quarter of SIBs. The only activity the claimant performed each week of the qualifying period was self-study of a math workbook which was not part of her IPE. In that case, the Appeals Panel stated that the claimant did not have reasonable grounds for failing to comply with the work search requirements of Rule 130.102, because DARS did not require the claimant to attend summer school or look for employment during the summer. The Appeals Panel reversed the hearing officer’s determination and rendered a new decision that the claimant is not entitled to SIBs for the quarter in dispute.

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).

In the instant case, the hearing officer determined the claimant demonstrated reasonable grounds for failing to document five job contacts per week for weeks 12 and 13, beginning December 20, 2014, through January 2, 2015, although it is undisputed that the claimant did not look for work during weeks 12 and 13 and no evidence was offered that the claimant performed any other activity in connection with his IPE for weeks 12 and 13 of the qualifying period in dispute. Furthermore, the claimant presented no evidence of any other active efforts during weeks 12 and 13 to meet the work search requirements of Rule 130.102(d)(1). Under the facts of this case, we do not agree with the hearing officer that because the claimant had limited abilities and the short period of time between semesters, the evidence is sufficient to prove that the claimant had reasonable grounds for failing to comply with the work search requirements for weeks 12 and 13.

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

SUMMARY

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

The true corporate name of the insurance carrier is ILLINOIS NATIONAL 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.

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

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 20, 2011, in (City), Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that the compensable injury of [date of injury], does not extend to reflex sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS) to the right hand and that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the 6th through 10th quarters from June 28, 2008, through September 25, 2009. The claimant appealed, disputing the hearing officer’s determinations of the extent of the compensable injury and the non-entitlement of SIBs for the 6th through 10th quarters. The respondent (carrier) responded, urging affirmance of the disputed determinations of the extent of the compensable injury and non-entitlement to SIBs for the 6th through 10th quarters.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that the claimant sustained a compensable injury on [date of injury], which resulted in an impairment rating (IR) of 15% or greater and that the claimant has not commuted any portion of the impairment income benefits. The parties also stipulated to the qualifying periods and quarter dates of the SIBs quarters in dispute. We note that the hearing officer mistakenly listed the dates for the 6th quarter of SIBs as June 28, 2009, through September 26, 2008. However, a review of the record reflects that the parties stipulated that the dates for the 6th quarter of SIBs were June 28 through September 26, 2008.

EXTENT OF INJURY

All of the SIBs applications in evidence for the quarters in dispute state that the claimant’s IR is 22%. In evidence is a certification of maximum medical improvement (MMI) and IR from designated doctor, Dr. C. Dr. C certified that the claimant reached MMI on December 23, 2005, with a 22% IR. Dr. C diagnosed the claimant with CRPS upper extremity and rating the condition of “major causalgia” which according to the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) designates an extremely serious form of RSD. Dr. C noted in his explanation of assessment of impairment that the claimant had RSD or CRPS which is a more modern term and “required a more significant award as compared to a simple entrapment neuropathy or fracture per se.”

28 TEX. ADMIN. CODE § 130.1(c)(1) (Rule 130.1(c)(1)) states that an IR is the percentage of impairment of the whole body resulting in the current compensable injury. Section 401.011(24) defines IR as the percentage of permanent impairment of the whole body resulting from a compensable injury. Rule 130.102(h) provides that if there is no pending dispute regarding the date of MMI or the IR prior to the expiration of the first quarter, the date of MMI and IR shall be final and binding. Once the IR became final pursuant to Rule 130.102(h), what was included in the underlying compensable injury was established. See Appeals Panel Decision (APD) 040150-s, decided March 8, 2004, and APD 090515, decided June 12, 2009. APD 051028-s, decided June 9, 2005, further explained:

The fact that the date of MMI and IR become final under these circumstances applies equally to the claimant and the carrier. A determination that the compensable injury extends to various other conditions not included in the IR will not allow the claimant to then challenge the date of MMI and/or the IR if there was no pending dispute regarding MMI and/or IR prior to the expiration of the [1st] quarter of SIBs. However, once the [1st] quarter of SIBs has expired and there has been no challenge of the MMI date and/or the IR, the claimant is not precluded from alleging that the compensable injury extends to include other conditions not included in the IR.

The evidence establishes that the RSD/CRPS was rated in the IR that the SIBs quarters were based on. The 6th through 10th quarters were the quarters in dispute. Therefore, the RSD/CRPS is part of the compensable injury. Accordingly, the hearing officer erred in her determination that the compensable injury of [date of injury], does not extend to RSD/CRPS to the right hand. We reverse the hearing officer’s determination that the compensable injury of [date of injury], does not extend to RSD/CRPS to the right hand and render a new decision that the compensable injury of [date of injury], does extend to RSD/CRPS to the right hand. Once the IR became final, the RSD/CRPS became part of the compensable injury because that condition was rated in the claimant’s IR.

SIBS QUARTERS 6 THROUGH 10

The hearing officer’s determination that the claimant is not entitled to SIBs for the 6th through 10th quarters is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the hearing officer’s determination that the claimant is not entitled to SIBs for the 6th through 10th quarters.

We reverse the hearing officer’s determination that the compensable injury of [date of injury], does not extend to RSD/CRPS to the right hand and render a new decision that the compensable injury of [date of injury], does extend to RSD/CRPS to the right hand.

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

800 BRAZOS, SUITE 750

COMMODORE 1

AUSTIN, TEXAS 78701.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 29, 2011. The hearing officer determined that: (1) the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the sixth quarter beginning on January 9, 2010, and ending on April 9, 2010; (2) the claimant is entitled to SIBs for the eighth quarter beginning on July 10, 2010, and ending on October 8, 2010; (3) the claimant is entitled to SIBs for the ninth quarter beginning on October 9, 2010, and ending on January 7, 2011; and (4) (Dr. P) was properly appointed as the designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 126.7 (Rule 126.7).^[1]

The appellant (carrier) appeals the hearing officer’s determinations. The claimant responds, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

PROPERLY APPOINTED DESIGNATED DOCTOR AND EIGHTH QUARTER SIBS

The hearing officer’s determinations that Dr. P was properly appointed as the designated doctor in accordance with Section 408.0041 and Rule 126.7 and that the claimant is entitled to SIBs for the eighth quarter beginning on July 10, 2010, and ending on October 8, 2010, are supported by sufficient evidence and are affirmed.

SIXTH AND NINTH QUARTER SIBS

The parties stipulated the following: the claimant was injured in the course and scope of employment on ___________;^[2] the claimant reached maximum medical improvement on May 12, 2006, with a 42% impairment rating; the claimant did not elect to commute any portion of his IIBs; the qualifying period for the disputed sixth quarter began on September 27, 2009, and ended on December 26, 2009; and the qualifying period for the disputed ninth quarter began on June 27, 2010, and ended on September 25, 2010.

The claimant sustained a serious traumatic injury on ___________, when he was hit in the head by a crane and knocked off the rig on which he was working and fell 8-10 feet to the ground. The claimant has sustained severe traumatic head injuries and also injuries to other parts of his body, and has undergone multiple surgeries. The claimant testified he has not worked since the date of the injury.

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

Sixth Quarter SIBs

The claimant argues entitlement for the sixth quarter based on a total inability to work. The sixth quarter qualifying period began on September 27, 2009, and ended on December 26, 2009.

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 hearing officer found the claimant was unable to perform any type of work in any capacity during the sixth quarter qualifying period, and noted in the Background Information section of his decision that the claimant’s inability to work is reflected in the medical records of (Dr. H), and Dr. P, as well as testimony from (Dr. A). The hearing officer did not identify which medical record is a narrative report from a doctor which specifically explains how the work injury causes a total inability to work.

A review of the record reflects that Dr. H issued a letter dated September 23, 2009, and (Dr. T), the claimant’s treating doctor, issued a letter dated December 18, 2009. In these letters Dr. H and Dr. T each state the following:

[The claimant] continues to have worsening cognitive function. He is noted to have repetition of the same questions without being able to retain the information. He also continues to have balance and vestibular problems and continues to intermittently use a single-point cane. We await approval from Workers’ Compensation for neuropsychological testing. This will provide objective data for complaints of cognitive decline.

It is my opinion that [the claimant] is not able to return to competitive employment now or in the future.

Neither of these letters from Dr. H and Dr. T specifically explain how the compensable injury caused a total inability to work; therefore, neither letter is sufficient to constitute a narrative as required by Rule 130.102(d)(4). There are no other records in or near the sixth quarter qualifying period that would constitute a narrative as required by Rule 130.102(d)(4). Therefore, we reverse the hearing officer’s determination that the claimant is entitled to SIBs for the sixth quarter beginning on January 9, 2010, and ending on April 9, 2010, and render a new decision that the claimant is not entitled to SIBs for the sixth quarter beginning on January 9, 2010, and ending on April 9, 2010.

Ninth Quarter SIBs

The claimant argues entitlement for the ninth quarter based on a total inability to work, and in the alternative argues he made job searches in compliance with Rule 130.102.

Total Inability to Work During the Ninth Quarter Qualifying Period

The ninth quarter qualifying period began June 27, 2010, and ended on September 25, 2010. The hearing officer found that the claimant was unable to perform any type of work in any capacity during the ninth quarter qualifying period. The hearing officer did not identify which medical record is a narrative report from a doctor which specifically explains how the work injury causes a total inability to work.

In evidence is a letter dated September 20, 2010, from Dr. T in which he discusses the claimant’s inability to work as follows:

I had previously recommended return to work with restrictions, as [the claimant] had been doing better clinically. At the time of his most recent visit with me on 9/20/10, it appears that [the claimant] has worsened clinically to the point where I do not believe he should attempt work re-entry. Given his head injury, [the claimant] is more sensitive to other medical issues that may arise, for which the net effect has been a decrease in functional status. For this reason, I have placed him on a ‘no-work restriction’ and will plan on re-evaluating this status at the time of our next appointment in 3 months.

However, also in evidence is a letter dated June 18, 2010, from Dr. T, stating the claimant can return to work with the following restrictions:

1.Work in a non-stress single-minded focused task work setting as opposed to a multitask environment.
2.No driving or operating heavy machinery due to seizure precautions.
3.No climbing heights.
4.No activity that would put the [claimant] or others at risk should the [claimant] have a seizure.

Although Dr. T’s September 20, 2010, letter is sufficient to constitute a narrative as required by Rule 130.102(d)(4), Dr. T’s June 18, 2010, letter, issued just nine days prior to the start of the ninth quarter qualifying period, is an other record, as discussed in Rule 130.102(d)(1), that shows the claimant had an ability to work for at least part of the ninth quarter qualifying period. Dr. T does not explain in his September 20, 2010, letter how the claimant’s compensable injury caused a total inability to work from June 18 through September 20, 2010, the date he opined the claimant could no longer work.

Job Search During the Ninth Quarter Qualifying Period

Section 408.1415(a)(3) provides in part that to be eligible to receive SIBs, a recipient must provide evidence satisfactory to the Division of active work search efforts documented by job applications submitted by the recipient. Section 408.1415(b)(2) provides that in adopting rules under this section, the commissioner shall define the number of job applications required to be submitted by a recipient to satisfy the work search requirements. Rule 130.102(d)(1)(D) provides, in pertinent part, that an injured employee demonstrates an active effort to obtain employment by meeting at least the following work search efforts each week during the entire qualifying period by performing active work search efforts documented by job applications. Rule 130.102(f) provides in part, that as provided in subsection 130.102(d)(1)(C) and (D), regarding active participation in work search efforts and active work search efforts, an injured employee shall provide documentation sufficient to establish that he or she has, each week during the qualifying period, made the minimum number of job applications and/or work search contacts consistent with the work search contacts established by the Texas Workforce Commission (TWC) which are required for unemployment compensation in the injured employee’s county of residence pursuant to the TWC Local Workforce Development Board requirements.

It was undisputed the claimant was required to make a minimum of 3 job searches each week of the ninth quarter qualifying period. A review of the Detailed Job Search/Employer Contact Log of the Application for [SIBs] (DWC-52) for the ninth quarter qualifying period lists 36 job contacts; however, the claimant failed to make the required number of job searches for the first, seventh, and eighth weeks of the ninth quarter qualifying period.

As previously discussed, to meet the eligibility requirements for the ninth quarter of SIBs, the claimant had to meet at least one of the work search requirements listed in Rule 130.102(d)(1) for every week of the ninth quarter qualifying period. Because the evidence contained a record showing the claimant had some ability to work during the ninth quarter qualifying period and because the claimant failed to make the required number of job searches for the ninth quarter qualifying period, the claimant has not met the eligibility requirements for the ninth quarter SIBs. We therefore reverse the hearing officer’s determination that the claimant is entitled to SIBs for the ninth quarter beginning on October 9, 2010, and ending on January 7, 2011, and render a new decision that the claimant is not entitled to SIBs for the ninth quarter beginning on October 9, 2010, and ending on January 7, 2011.

SUMMARY

We affirm the hearing officer’s determination that Dr. P was properly appointed as the designated doctor in accordance with Section 408.0041 and Rule 126.7.

We affirm the hearing officer’s determination that the claimant is entitled to SIBs for the eighth quarter beginning on July 10, 2010, and ending on October 8, 2010.

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the sixth quarter beginning on January 9, 2010, and ending on April 9, 2010, and render a new decision that the claimant is not entitled to SIBs for the sixth quarter beginning on January 9, 2010, and ending on April 9, 2010.

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the ninth quarter beginning on October 9, 2010, and ending on January 7, 2011, and render a new decision that the claimant is not entitled to SIBs for the ninth quarter beginning on October 9, 2010, and ending on January 7, 2011.

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

JAMES H. MOODY III

2001 BRYAN STREET, SUITE 1800

DALLAS, TEXAS 75201-3070.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

We note that the Texas Department of Insurance, Division of Workers’ Compensation (Division) has adopted new rules concerning designated doctor scheduling and examinations effective February 1, 2011; however, the rule in effect at the time of the CCH was Rule 126.7.

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We note the hearing officer states in his decision that the parties stipulated that the claimant sustained a compensable injury on ________; however, the parties stipulated on the record as reflected above. We further note that the parties also stipulated, among other things, that the Division’s initial determination of SIBs was made on October 6, 2008; and that the claimant’s impairment income benefits (IIBs) period ended on October 10, 2008.

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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 November 18, 2010. The hearing officer resolved the sole disputed issue before her by determining that the respondent (claimant) was entitled to supplemental income benefits (SIBs) for the sixth quarter. The appellant (self-insured) appealed the hearing officer’s determination of the sixth quarter entitlement for SIBs. The claimant responded, urging affirmance.

DECISION

Reversed and rendered.

In unappealed findings of fact, the hearing officer determined that: (1) on ___________, the claimant sustained damage or harm to the physical structure of her body while she was within the course and scope of her employment; (2) as a result of her compensable injury of ___________, the claimant has an impairment rating equal to or greater than 15%; (3) the claimant did not elect to commute any portion of the impairment income benefits payable to her on account of her compensable injury of ___________; (4) during the qualifying period preceding the sixth SIBs quarter, the claimant did not return to work earning at least 80% of her pre-injury average weekly wage; (5) that the claimant’s unemployment during the qualifying period preceding the sixth SIBs quarter was a direct result of the impairment attributable to the claimant’s compensable injury of ___________; and (6) the claimant did not make five or more job contacts during each week of the qualifying period preceding the sixth SIBs quarter. A review of the Texas Department of Insurance, Division of Workers’ Compensation (Division) records indicate that the qualifying period for the sixth quarter of SIBs is from May 28 through August 26, 2010.

The claimant’s theory of entitlement to SIBs for the sixth quarter is active participation in a vocational rehabilitation program (VRP). Section 408.1415(a)(1) provides that to be eligible to receive SIBs, a recipient must provide evidence satisfactory to the Division of active participation in a VRP conducted by the Department of Assistive and Rehabilitative Services (DARS) or a private vocational rehabilitation provider.28 TEX. ADMIN. CODE § 130.101(8) (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 (IPE) 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.

(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 VRP as defined in Rule 130.101 of this title (relating to definitions);

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

In evidence was an IPE dated April 21, 2009, which the claimant had entered into with DARS. The employment goal in the IPE was identified as social work and the services to be provided by DARS included “[counseling & guidance] services leading to employment,” counseling, tuition, assistance with the purchase of books not to exceed $400.00 per semester, and services leading to employment arranged with Workforce Solutions. The start dates of the services to be provided began April 21, 2009, and are anticipated to end on December 31, 2014. The IPE encompasses the entire qualifying period of the sixth quarter. The claimant’s responsibilities in achieving the employment goal included: maintain at least a 2.0 grade point average and 12 credit hours each semester, complete a Pell Grant application, submit grades to her counselor, obtain and maintain employment, and participate in “JQT” (i.e. job seeking skills, interview skills, etc.) and job placement activities.

In evidence is correspondence from a DARS representative dated August 31, 2010, which notes that an IPE was developed for the claimant, and that the claimant was actively participating with DARS from May 28 through August 27, 2010, and DARS does not require its consumers to attend summer school. It further stated that the claimant reported to her counselor that she spent her summer sharpening her math skills in preparation for the fall 2010 school semester. Further, in evidence is correspondence from a DARS representative dated October 7, 2010, which notes that an IPE was developed for the claimant, and that the claimant was actively participating with DARS from May 25 through August 27, 2010, and that the claimant was not required to attend summer school or to seek employment during the summer when she is not in school. DARS also stated that job placement services will be provided once the claimant completes her training and at this time, the claimant needs retraining to rejoin the workforce.

As previously noted, the qualifying period for the sixth quarter began on May 28, 2010, and ended on August 26, 2010. The evidence reflects that the claimant completed 12 credit hours in the spring school semester, which began on January 11, 2010, and continued to May 12, 2010, and that on July 21, 2010, the claimant registered online for 12 credit hours in the 2010 fall semester, which began on August 23, 2010, and continued to December 15, 2010. The claimant testified that she did not attend school during the sixth quarter qualifying period.

The claimant testified that she did not look for work or attend summer school during the qualifying period for the sixth quarter of SIBs because her DARS counselor did not require it. Rather, the claimant testified that her DARS counselor wanted her to study and review the math she had learned in the spring semester in order to prepare for her upcoming math course in the 2010 fall semester. In evidence is a typed-written log prepared by the claimant and dated May 25 through August 27, 2010, in which the claimant noted her near daily activities, including self-study of a math workbook; symptoms of pain; or laying on the couch.

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

Specifically, [the] [c]laimant herein has presented evidence that her DARS counselor did not expect her to make job contacts during the summer, and also has presented a description of her daily activities during the applicable qualifying period, evidence that apparently was lacking in the case authority [Appeals Panel Decision 100615-s, decided July 23, 2010] that [the] [s]elf-insured has cited. [The] [c]laimant therefore has shown that during each week of the qualifying period, she had reasonable grounds for failing to make any required job contacts, in that she was complying with the directive of her DARS counselor by studying independently when she was physically able to do so.

In the instant case, the claimant contended that she did not have to perform the required work search requirements of Rule 130.102 because she was satisfactorily participating in her IPE during the qualifying period and was not required nor expected to attend class or look for work during the summer months of the qualifying period for the sixth quarter of SIBs. The claimant’s IPE covered the entire qualifying period. The only activity the claimant performed each week of the qualifying period was self-study of a math workbook. The self-study was not part of her IPE. We cannot agree under the facts of this case that because DARS did not require the claimant to attend summer school or look for employment during the summer that the claimant has reasonable grounds for failing to comply with the work search requirements of Rule 130.102. Therefore, the hearing officer’s determinations that during the qualifying period preceding the sixth SIBs quarter, the claimant was enrolled in and satisfactorily participating in a full-time VRP sponsored by DARS^[1] and that the claimant had reasonable grounds for failing to make five or more job contacts during each week of the qualifying period preceding the sixth SIBs quarter, are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We reverse the hearing officer’s decision that the claimant is entitled to SIBs for the sixth quarter and render a new decision that the claimant is not entitled to SIBs for the sixth quarter.

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

MANAGER

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Carisa Space-Beam
Appeals Judge

We note that the hearing officer used language of “satisfactorily participating” in a VRP, which was a criteria for entitlement under the old SIBs rules. However, the Discussion indicates that the hearing officer was applying the criteria of active participation in a VRP for entitlement required under the new SIBs rules.

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