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

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

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

DECISION

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

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

REFORMED PORTIONS OF DECISION

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

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

WAIVER OF RIGHT TO CONTEST ENTITLEMENT TO THIRD QUARTER SIBs

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

ENTITLEMENT TO THIRD QUARTER SIBs

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

WAIVER OF RIGHT TO CONTEST ENTITLEMENT TO SECOND QUARTER SIBs

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

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

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

 

Rule 130.108(d) provides as follows:

 

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

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

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

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

CLAIMANT’S ENTITLEMENT TO SECOND QUARTER SIBs

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

CLAIMANT’S ENTITLEMENT TO FIFTH QUARTER SIBs

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

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

* * * *

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

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

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

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

SUMMARY

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

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

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

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

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

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

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

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

DR. DON STOCKTON, SUPERINTENDENT

3205 WEST DAVIS STREET

CONROE, TEXAS 77304-2039.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

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

   ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 29, 2014, in Houston, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the 7th quarter and continuing through the 19th quarter; and (2) because the claimant was not entitled to SIBs for 12 consecutive months, including the 1st, 2nd, 3rd, 4th, 5th, and 6th quarters, as a matter of law, the claimant has permanently lost entitlement to additional income benefits for the compensable injury.

The claimant appealed the hearing officer’s determinations, contending that because a district court judge issued an order that granted his motion for summary judgment in a lawsuit concerning a previous Decision and Order that disposed of the claimant’s date of maximum medical improvement (MMI), impairment rating (IR), and 1st through 6th quarter SIBs, the hearing officer did not have jurisdiction on the issue of 7th through 19th quarter SIBs and permanent loss of entitlement of SIBs. The respondent (self-insured) responded, urging affirmance of the hearing officer’s determinations. The self-insured contended the hearing officer retained jurisdiction in this case because the order granting the claimant’s motion for summary judgment has not become final and is still pending in district court. We note that the Decision and Order incorrectly identifies the name of the self-insured’s registered agent for service of process.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated in part that: (1) the claimant sustained a compensable injury on [Date of Injury]; (2) the date of statutory MMI is September 3, 2008; (3) the claimant’s IR is 19%; and (4) the dates for the 7th quarter qualifying period of SIBs are December 16, 2010, through March 16, 2011; (5) the dates for the 8th quarter qualifying period of SIBs are March 17 through June 15, 2011; (6) the dates for the 9th quarter qualifying period of SIBs are June 16 through September 14, 2011; (7) the dates for the 10th quarter qualifying period of SIBs are September 15 through December 14, 2011; (8) the dates for the 11th quarter qualifying period of SIBs are December 15, 2011, through March 14, 2012; (9) the dates for the 12th quarter qualifying period of SIBs are March 15 through June 13, 2012; (10) the dates for the 13th quarter qualifying period of SIBs are June 14 through September 12, 2012; (11) the dates for the 14th quarter qualifying period of SIBs are September 13 through December 12, 2012; (12) the dates for the 15th quarter qualifying period of SIBs are December 13, 2012, through March 13, 2013; (13) the dates for the 16th quarter qualifying period of SIBs are March 14 through June 12, 2013; (14) the dates for the 17th quarter qualifying period of SIBs are June 13 through September 11, 2013; (15) the dates for the 18th quarter qualifying period of SIBs are September 12 through December 11, 2013; and (16) the dates for the 19th quarter qualifying period of SIBs are December 12, 2013, through March 12, 2014. It was undisputed that the claimant’s county of residence, Liberty County, requires a minimum of three work searches each week of the qualifying period.

JURISDICTION

The issues of MMI, IR, and whether the claimant is entitled to 1st through 6th quarter SIBs were determined at a prior CCH. The hearing officer in the prior CCH determined that: (1) the claimant’s date of MMI is September 3, 2008; (2) the claimant’s IR is 19%; and (3) the claimant is not entitled to 1st through 6th quarter SIBs. The claimant appealed the hearing officer’s determination to the Appeals Panel; however, a written decision by the Appeals Panel on the claimant’s appeal was not issued by the 45th day after the self-insured’s response to the claimant’s appeal was received by the Texas Department of Insurance, Division of Workers’ Compensation (Division). The hearing officer’s decision therefore became final regarding the self-insured’s timely appeal pursuant to Section 410.204(c) and 28 TEX. ADMIN. CODE § 143.5(b) (Rule 143.5(b)).

The claimant subsequently filed a lawsuit in district court. The parties represented that an order was issued on September 23, 2014, granting the claimant’s motion for summary judgment. The self-insured represented, and the claimant concedes in his appeal, that the lawsuit is pending in district court.

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).  In Lopez v. Texas Workers’ Comp. Ins. Fund, 11 S.W.3d 490 (Tex. App.–Austin 2000, pet. denied), the court held that Section 410.205(b) clearly provides that the ultimate administrative ruling—whether granting or denying benefits—remains in effect until overturned by a final and enforceable judicial decision. The hearing officer correctly noted in the Discussion portion of the decision that the Appeals Panel’s prior decision is binding until there is a final, non-appealable judgment in this case.

Furthermore, it is undisputed that the issues before the hearing officer in the instant case, which are entitlement to SIBs for the 7th through 19th quarters, and whether the claimant has permanently lost entitlement to SIBs, have not been previously litigated. The Division has jurisdiction on the issues of entitlement to SIBs for the 7th through 19th quarters of SIBs and permanent loss of entitlement of SIBs.

PERMANENT LOSS OF ENTITLEMENT OF SIBS

The hearing officer’s determination that the claimant has permanently lost entitlement to SIBs pursuant to Section 408.146(c) because he was not entitled to SIBs for 12 consecutive months is supported by sufficient evidence and is affirmed.

7TH AND 10TH THROUGH 19TH QUARTER SIBS

That portion of the hearing officer’s determination that the claimant is not entitled to SIBs for the 7th quarter and the 10th through 19th quarters is supported by sufficient evidence and is affirmed.

8TH AND 9TH QUARTER SIBS

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

One of the claimant’s theories of entitlement to SIBs for the 8th and 9th quarters is based on a total inability to work. The hearing officer noted in the Discussion portion of the decision that the claimant relied on medical reports from (Dr. E) and (Dr. M) to explain why he had a total inability to work; however, the hearing officer explained that those reports were insufficient evidence of a total inability to work. The hearing officer found that the claimant had some ability to work during the 8th and 9th quarter qualifying periods. The hearing officer’s findings are supported by sufficient evidence.

The claimant’s other theory of entitlement to SIBs for the 8th and 9th quarters is based on an active work search effort every week of the qualifying periods in dispute. The hearing officer noted in the Discussion portion of the decision that “[t]he evidence indicated [that the] [c]laimant’s Application for [SIBs] [(DWC-52)] for the [8th] and the [9th] quarters documents at least three job search contacts during each week of the entire qualifying periods. . . .” The hearing officer found in Finding of Fact No. 4.a. that during the 8th and 9th quarter qualifying periods the claimant demonstrated an active effort to obtain employment each week during the entire qualifying periods.

In evidence are the claimant’s DWC-52s for the 8th and 9th quarters. Attached to the claimant’s DWC-52s are Detailed Job Search/Employer Contact Log sheets documenting the claimant’s job searches during the 8th and 9th quarter qualifying periods. As noted above, it was undisputed that the claimant’s county of residence, Liberty County, requires a minimum of three work searches each week of the qualifying period. A review of the log sheets for the 8th quarter qualifying period shows that, although the claimant listed a minimum of three job searches for weeks 1 through 9 and 11 through 12, the claimant did not list any job searches during the 10th and 13th weeks. That portion of Finding of Fact No. 4.a. that during the 8th quarter qualifying period the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period is not supported by the evidence. We therefore reverse Finding of Fact No. 4.a. with respect to the 8th quarter. Because the evidence established that during the 8th quarter qualifying period of SIBs the claimant had an ability to work and the claimant did not make a minimum of three job searches each week of the 8th quarter qualifying period, we affirm that portion of the hearing officer’s determination that the claimant is not entitled to SIBs for the 8th quarter.

A review of the log sheets for the 9th quarter qualifying period shows that the claimant made a minimum of three job searches each week of the entire qualifying period. The hearing officer’s finding that during the 9th quarter qualifying period the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period is supported by the evidence.

However, the hearing officer also found that the claimant did not actively participate in job search efforts conducted through the Texas Workforce Commission (TWC), and that the claimant did not demonstrate that he had reasonable grounds for failure to comply with the work search requirements of Rule 130.102(d).

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

The preamble to Rule 130.102 discusses Rule 130.102(f), Work Search Efforts, and states that “[t]he new subsection (f) includes language regarding the required documentation an injured employee must provide to sufficiently establish active participation in work search efforts and active work search efforts” and that “[a]s a result of multiple comments received seeking clarification, language was added to subsection (f) to clarify that work search efforts would be consistent with job applications or the work search contacts established by TWC.”  (34 Tex. Reg. 2139, 2009).

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 TWC rules. (34 Tex. Reg. 2145, 2009).  Further, the following public comment and Division response to Rule 130.102(d)(1)(D), states:

Comment: Commenter requests clarification of the phrase “has performed active work search efforts documented by job applications” that requires an injured employee, who engages in a job search outside of TWC in an effort to establish SIBs entitlement, to document those work search efforts by submitting completed job applications and that other job search activities will not be sufficient to establish SIBs entitlement.

Agency Response: This Division clarifies that, as set forth in adopted § 130.102(f), “work search efforts” encompasses both job applications and work search contacts as described by the TWC rules.

In the instant case, it is clear from the hearing officer’s decision that she believed the claimant made at least three job search contacts during each week of the entire qualifying period for the 9th quarter. However, the hearing officer indicates in her findings of fact that the claimant did not comply with the work search requirements of Rule 130.102(d) because he did not actively participate in job search efforts conducted through the TWC. 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 TWC rules.  The DWC-52 for the 9th quarter of SIBs in evidence reflects that the claimant met the work search efforts requirement by making at least three work search contacts for each week during the entire qualifying period in dispute. See Appeals Panel Decision (APD) 100229-s, decided April 30, 2010, and APD 101430, decided November 15, 2010. Although the claimant met the criteria for entitlement to SIBs for the 9th quarter, the claimant is no longer entitled to income benefits under Section 408.146(c) because he was not entitled to SIBs for 12 consecutive months (nonentitlement to SIBs for the 1st through 6th quarters, and nonentitlement to 10th through 19th quarters). Accordingly, we affirm the hearing officer’s determination that the claimant is not entitled to SIBs for the 9th quarter because the claimant has permanent loss of SIBs entitlement under Section 408.146(c).

SUMMARY

We affirm the hearing officer’s determination that the claimant has permanently lost entitlement to SIBs pursuant to Section 408.146(c) because he was not entitled to SIBs for 12 consecutive months.

We affirm the hearing officer’s determination that the claimant is not entitled to SIBs for the 7th through 19th quarters.

We reverse that portion of Finding of Fact No. 4.a. that during the qualifying period for the 8th quarter, the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period, and we render a new decision by striking that portion of Finding of Fact No. 4.a.

The true corporate name of the insurance carrier is TEXAS ALLIANCE OF ENERGY PRODUCERS WORKERS’ COMPENSATION SELF-INSURED GROUP TRUST and the name and address of its registered agent for service of process is

TEXAS DEPARTMENT OF INSURANCE, COMMISSIONER

333 GUADALUPE

AUSTIN, TEXAS 78701.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on 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 was held on November 29, 2010. Regarding the sole issue before her, the hearing officer determined that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the seventh quarter. The appellant (carrier) appeals the hearing officer’s determination, contending the claimant’s inability to work during the disputed quarter is not as a direct result of his compensable injury, and that the claimant did not demonstrate an active effort to obtain employment each week during the entire qualifying period. The claimant responds, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that: the claimant sustained a compensable injury on _____________, that resulted in an impairment rating of 15% or greater; the claimant did not commute any portion of the impairment income benefits; and the qualifying period dates for the seventh quarter are from March 13 through June 11, 2010.

DIRECT RESULT

The hearing officer’s finding that during the qualifying period for the seventh quarter the claimant was unemployed as a direct result of the impairment from the compensable injury is supported by sufficient evidence and is affirmed.

ACTIVE PARTICIPATION WITH THE DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES (DARS) AND JOB SEARCHES

The claimant’s theory of entitlement to SIBs for the seventh quarter is active participation in a vocational rehabilitation program (VRP) sponsored by DARS. Section 408.1415(a)(1) provides that to be eligible to receive SIBs, a recipient must provide evidence satisfactory to the Texas Department of Insurance, Division of Workers’ Compensation of active participation in a VRP conducted by 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.

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:

 

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

    

2. (B)has actively participated in a [VRP] as defined in Rule 130.101 of this title (relating to definitions);  

    

3. (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 was an IPE dated May 1, 2009, which the claimant had entered into with DARS. The employment goal in the IPE was identified as dispatcher and the services to be provided by DARS included counseling and guidance and a $30.00 weekly maintenance for job search related expenses for six weeks. Also included were job placement and job development services provided by Texans for Work. The start dates of the services to be provided began May 1, 2009, and continued through May 1, 2010. The claimant’s responsibilities in achieving the employment goal included following up on job leads; obtaining and maintaining employment; and following doctor recommendations.

As previously noted, the qualifying period for the seventh quarter began on March 13, 2010, and ended on June 11, 2010. It was undisputed by the parties that the number of weekly job searches required in [county name], the county in which the claimant resided during the qualifying period in dispute, is three per week. In evidence was a Detailed Job Search/Employer Contact Log of the Application for [SIBs] (DWC-52). In the log the claimant documented at least three job searches for each of the weeks during the qualifying period except for the first week, March 13 through March 19, 2010, and the final week, June 5 through June 11, 2010; both of those weeks listed no job searches.

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).

The hearing officer noted the following in the Background Information:

However, although the IPE does indicate that the end date was May 1, 2010, the credible evidence incidates that the plan remained in effect through the entire qualifying period. Specifically, DARS provided a weekly stipend of $30 for job search expenses. Claimant also met with his counselor several times during this period and went to the [TWC] as required under the IPE. The claimant met his burden of proof to show that he is entitled to [SIBs] for the seventh quarter.

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). 

Under the facts as presented in this case, the hearing officer’s finding that during the qualifying period for the seventh quarter the claimant was enrolled in and satisfactorily participating in a full-time VRP sponsored by DARS is against the great weight and preponderance of the evidence. The only evidence presented by the claimant that his IPE was extended beyond May 1, 2010, was his testimony that he continued to receive the weekly $30.00 stipend through the end of June 2010; his testimony that he met with a DARS counselor during the qualifying period; and a letter from DARS dated June 28, 2010, stating that an IPE was developed and the claimant was actively participating from March 13 through June 30, 2010, which were dates provided by the claimant and correspond to the SIBs qualifying period. We cannot agree under the facts of this case that the claimant’s IPE was extended beyond the end date of May 1, 2010, to cover the entire qualifying period. Because the IPE ended May 1, 2010, the claimant must show he met at least one of the other criteria listed in Rule 130.102(d)(1) during the weeks of the qualifying period after May 1, 2010.

The claimant documented job searches for all but the first and final week of the qualifying period. The first week of the qualifying period was during the claimant’s IPE; however, the final week fell outside the claimant’s IPE. As previously mentioned, there was no evidence that during the first or last week of the qualifying period the claimant returned to work in a position commensurate with his ability to work; actively participated in work search efforts conducted through TWC, performed an active work search documented by job applications during the entire qualifying period; or had a total inability to work. We note that even if the claimant’s IPE had been extended through the last week of the qualifying period, as a matter of law the claimant did not demonstrate an active effort to obtain employment under Rule 130.102(d)(1) because the claimant failed to document any job searches during the first and last weeks of the qualifying period. The claimant’s IPE specifically required him to follow-up on job leads and obtain and maintain employment, and the claimant failed to document any such efforts during the first and last week of the qualifying period at issue. Therefore, the hearing officer’s finding that during the qualifying period for the seventh quarter^[1] the claimant made an active effort to find employment commensurate with his ability to work is against the great weight and preponderance of the evidence. Accordingly, we reverse the hearing officer’s decision that the claimant is entitled to SIBs for the seventh quarter and render a new decision that the claimant is not entitled to SIBs for the seventh quarter.

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

CORPORATION SERVICE COMPANY

D/B/A/ CSC-LAWYERS INCORPORATING SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

1. We note the hearing officer made a clerical error in referencing the third quarter in Finding of Fact No. 6. The disputed quarter in this case was the seventh quarter.

   ↑

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 20, 2007. In Appeals Panel Decision (APD) 070806, decided May 29, 2007, the Appeals Panel remanded the case to the hearing officer to reconstruct the record because the compact disc recording was unintelligible. A CCH on remand was held on July 3, 2007.^[1] The disputed issues were: (1) Does the compensable injury extend to the lumbar spine at L3-4 and L4-5 with degenerative changes?; (2) Has the appellant (carrier) waived the right to contest compensability of the lumbar spine at L3-4, L4-5 with degenerative changes, by not timely contesting the impairment rating (IR) prior to the expiration of the first quarter of supplemental income benefits (SIBs) in accordance with 28 TEX. ADMIN. CODE § 130.102(g) (Rule 130.102(g))?; (3) Is the respondent (claimant) entitled to SIBs for the seventh quarter, July 21, 2006, through October 19, 2006?; and (4) Is the claimant entitled to SIBs for the eighth quarter, October 20, 2006, through January 18, 2007? The hearing officer resolved the disputed issues on remand by determining that: (1) the compensable injury extends to include degenerative changes at L4-5 but does not extend to include degenerative changes at L3-4; (2) the carrier waived the right to contest compensability of the degenerative changes at L4-5 (pursuant to Rule 130.102(g)) but did not waive the right to contest degenerative changes at L3-4; (3) the claimant is entitled to SIBs for the seventh and eighth quarters.

The carrier appealed, contending that the compensable injury does not extend to include degenerative changes at L4-5; that there is no evidence that the L4-5 degenerative changes were included in the designated doctor’s IR; and that the claimant was not entitled to SIBs for the seventh and eighth quarters. The appeal file does not contain a response from the claimant. There is no appeal of the hearing officer’s determinations that the compensable injury does not extend to include degenerative changes at L3-4 and that the carrier did not waive the right to contest degenerative changes at L3-4.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that the claimant sustained a compensable injury on ____________. The documentary evidence indicates that the claimant suffered a low back injury in a fall from a truck. The parties stipulated that the claimant reached maximum medical improvement (MMI) with an IR of 15% or greater.

SIBS

The hearing officer’s determinations that the claimant is entitled to SIBs for the seventh and eighth quarters are supported by sufficient evidence and are affirmed.

CARRIER WAIVER (FINALITY) PURSUANT TO RULE 130.102(g)

Rule 130.102(g) provides that if there is no pending dispute regarding the date of MMI or the IR prior to the expiration of the first quarter of SIBs, the date of MMI and the IR shall be final and binding. A July 18, 2001, MRI report of the claimant’s lumbar spine reported “T12-L1 thru L3-4” as unremarkable and L4-5 and L5-S1 as showing degenerative changes. In evidence is a Report of Medical Evaluation (DWC-69) and narrative dated June 28, 2003, from Dr. J, the designated doctor, which certified statutory MMI with a 29% IR utilizing the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides 3rd edition). Dr. J assessed a 22% impairment for lumbar loss of range of motion (ROM), 7% impairment from Table 49, Section (II)(C), Impairments Due to Specific Disorders of the Spine,^[2] and 3% impairment for neurological decreased sensation, which were combined to arrive at the 29% IR for the lumbar spine. The hearing officer determined that the first quarter of SIBs began on January 20, 2005, and ended April 20, 2005. There is no evidence that the MMI date or the IR were ever disputed. After the first quarter of SIBs ended, the carrier filed a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) disputing the L3-4 and L4-5 degenerative changes as not being part of the compensable injury and accepting L5-S1 as “the only body part that is part of this incident.”

In APD 040150-s, decided March 8, 2004, the Appeals Panel applied Rule 130.102(g) stating:

Rule 130.1(c)(1) states that an IR is the percentage of permanent impairment of the whole body resulting from 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. Therefore, considering the definition of IR, we conclude that the IR was for the compensable injury and, thus, any injured body part or condition rated is included in the compensable injury under the facts of this case. Once the IR then became final pursuant to Rule 130.102(g), what was included in the underlying compensable injury was established.

As noted in APD 051082, decided June 28, 2005, the question is not so much waiver as it is finality of the IR and the underlying conditions which were rated in that IR. 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 first quarter of SIBs. However, once the first 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.

In applying these decisions the question becomes whether the L4-5 degenerative changes were included in Dr. J’s 29% IR.

Dr. J in the June 28, 2003, report discusses the claimant’s back pain, sensory alteration and left lower extremity weakness, but does not reference specific levels of the lumbar spine. Dr. J also references some “prior reports” by date but those reports are not in evidence. Dr. J gives ROM measurements but again does not reference specific levels of the lumbar spine. The hearing officer in the Background Information concedes that Dr. J did not specify the levels of the lumbar spine with degenerative changes in the 7% impairment for specific disorders of the spine, but comments “since there was medical evidence of degenerative changes at L4-5 and L5-S1 before that certification, it is reasonable to conclude that the diagnosed degenerative changes were included in the certification.” While it is correct that Dr. J rated degenerative changes in the lumbar spine in his rating under Table 49, Section (II)(C), it is not possible to determine from his rating whether he was rating the L4-5 level, or the L5-S1 level, or both because he does not mention either level in his report. Dr. J’s report does not specify what level or levels of the spine he is rating and the 7% impairment could have been justified on the degenerative changes at the L5-S1 level alone. The hearing officer’s determination that the carrier has waived the right to contest compensability of the degenerative changes at L4-5 (pursuant to Rule 130.102(g)) is without support in the evidence and is reversed. We render a new decision that the carrier has not waived the right to contest compensability of the degenerative changes at L4-5.

EXTENT OF INJURY

There is no appeal of the hearing officer’s finding that as a result of the compensable injury, the claimant did not suffer damage or harm to the L4-5 level with degenerative changes. The hearing officer’s determination that the compensable injury extends to include degenerative changes at L4-5 is based on her determination that the carrier waived the right to contest compensability of the degenerative changes at L4-5 under Rule 130.102(g). Because we have reversed the hearing officer’s determination that the carrier waived the right to contest compensability of the L4-5 degenerative changes, we also reverse the hearing officer’s decision that the compensable injury extends to include degenerative changes at L4-5.

SUMMARY

We affirm the hearing officer’s determinations that the claimant is entitled to SIBs for the seventh and eighth quarters. We reverse the hearing officer’s determination that the carrier waived the right to contest compensability of the degenerative changes at L4-5 pursuant to Rule 130.102(g) and render a new decision that the carrier did not waive the right to contest compensability of the degenerative changes at L4-5. We also reverse the hearing officer’s determination that the compensable injury extends to degenerative changes at L4-5 and render a decision that the compensable injury does not extend to degenerative changes at L4-5.

The true corporate name of the insurance carrier is AMERICAN EMPLOYER’S INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEMS

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Thomas A. Knapp

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

1. The recording of the hearing on remand is also largely unintelligible. Since the Appeals Panel may not remand a case more than once (Section 410.203(c)) we have reviewed the record largely based on the documentary evidence.

   ↑

2. Table 49, Section (II)(C) is for intervertebral disc or other soft tissue lesions, unoperated, with medically documented injury and a minimum of six months of medically documented pain, recurrent muscle spasm, or rigidity associated with moderate to severe degenerative changes on structural tests, including unoperated herniated nucleus pulposus, with or without radiculopathy. This provision does not specify specific levels of the lumbar spine.

   ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 14, 2007, with the record closing on May 30, 2007. The hearing officer resolved the disputed issues by deciding that: (1) the appellant/cross-respondent’s (claimant) impairment rating (IR) is 20%; (2) the compensable injury extends to include spondylolisthesis because the respondent/cross-appellant (carrier) waived the right to contest compensability of spondylolisthesis; (3) the claimant is not entitled to supplemental income benefits (SIBs) for the sixth or seventh quarters; and (4) the carrier is relieved of liability for SIBs for the seventh quarter because of the claimant’s failure to timely file an application for SIBs for the seventh quarter.

The claimant appealed the hearing officer’s determination that he was not entitled to SIBs for the sixth and seventh quarters and the determination that he failed to timely file an application for SIBs for the seventh quarter. The carrier appealed the hearing officer’s IR determination, arguing that it is legally wrong because it was based on Advisory 2003-10, signed July 22, 2003, and Advisory 2003-10B, signed February 24, 2004 (Advisories), citing Texas Dep’t. of Ins. v. Lumbermens Mutual Cas. Co., 212 S.W.3d 870 (Tex. App.-Austin, 2006, pet. denied). Additionally, the carrier appealed the hearing officer’s determinations with regard to extent of injury and carrier waiver. The carrier filed a response to the claimant’s appeal. The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Reversed and remanded in part, affirmed in part.

FACTUAL SUMMARY

The parties stipulated that the claimant sustained a compensable injury on __________, and that the claimant reached maximum medical improvement (MMI) on May 5, 2004. The evidence reflects that the claimant was examined by the Texas Department of Insurance, Division of Workers’ Compensation (Division)-selected designated doctor, Dr. F, on May 5, 2004, and he certified that the claimant reached MMI on that same date, with a 20% IR based on the Advisories for a multilevel fusion. In a letter of clarification dated January 22, 2007, Dr. F states that without applying the Advisories he would assign a 0% IR, “because of the absence of injury in concert with the analysis recommended on page 100” of the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides).^[1] The hearing officer concluded that the claimant’s IR is 20% as assigned by Dr. F.

EXTENT OF INJURY AND CARRIER WAIVER

The hearing officer’s decision that the compensable injury extends to include spondylolisthesis because the carrier waived the right to contest compensability of spondylolisthesis is supported by sufficient evidence and is affirmed.

SIBS

The hearing officer’s decision that the claimant is not entitled to SIBs for the sixth and seventh quarters, and that the carrier is relieved of liability for SIBs for the seventh quarter because of the claimant’s failure to timely file an application for SIBS for the seventh quarter is supported by sufficient evidence and is affirmed.

IR

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. 28 TEX. ADMIN. CODE § 130.1(c)(3) (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 preamble of Rule 130.1(c)(3) clarifies that IR assessments “must be based on the injured employee’s condition as of the date of MMI.” 29 Tex. Reg. 2337 (2004). See Appeals Panel Decision (APD) 040313-s, decided April 5, 2004.

The 20% IR determined by the hearing officer in this case as certified by Dr. F was based on the application of the Advisories. The Advisories have been declared invalid and their application an ultra vires act. Lumbermens, supra. The Texas Supreme Court denied the petition for review of this case on June 15, 2007. Therefore, the adoption of an IR that is based on the Advisories is legal error and must be reversed. See APD 071023-s, decided July 23, 2007. We reverse the hearing officer’s determination that the claimant’s IR is 20%.

Review of the record indicates that the only other certification of MMI/IR is from the designated doctor, Dr. F, in which he assigned a 0% IR. However, this IR cannot be adopted because he did not rate the entire compensable injury. Dr. F did not provide a rating for spondylolisthesis which has been determined to be compensable by virtue of carrier waiver. Dr. F states in his narrative report that “[i]n my opinion, the pre-existing spondylolisthesis was neither caused nor aggravated by the [motor vehicle accident] event at issue. . . With regard to the injury event, I assess 0% impairment in accordance with the concepts set forth on Page 100” of the AMA Guides. Additionally, Dr. F stated in his narrative report that the operative report of March 7, 2003, identifies “spondylolysis at L5, spondylolisthesis at L5-S1, spinal stenosis and [hypomobility of L5-S1], but absolutely no indication of any injury produced pathology.”

An MRI of the lumbar spine dated January 13, 2003, reflects that at L5-S1 “[t]here is a 1 [centimeter (cm)] anterior slipping of L5 on S1, associated with spondylolysis. There is a 7 [millimeters (mm)] prolapse and herniation of the disc at this level”^[2] and that “[t]here is a bony defect in the pars interarticularis bilaterally indicating Grade 1 spondylolisthesis.” The hearing officer determined that the claimant’s compensable injury extends to include spondylolisthesis by virtue of carrier waiver. Although Dr. F references the AMA Guides on page 100, which states that “[t]he Injury Model attempts to document physiologic and structural impairments relating to insults other than common developmental findings such as . . . spondylolisthesis, found in 3%” of adults, Dr. F failed to consider the claimant’s compensable spondylolisthesis injury in accordance with the AMA Guides in assessing an IR. We note that page 94 of the AMA Guides, states that the “evaluator assessing the spine should use the Injury Model, if the patient’s condition is one of those listed in Table 70 (p. 108)”. Table 70 lists spondylolisthesis as a condition in three different ways: (1) Spondylolisthesis without loss of motion segment integrity or radiculopathy; (2) Spondylolisthesis with loss of motion segment integrity or radiculopathy; and (3) Spondylolisthesis with cauda equina syndrome.

The doctor evaluating permanent impairment must consider the entire compensable injury. APD 043168, decided January 20, 2005. Dr. F’s report reflects that he did not consider the claimant’s spondylolisthesis to be part of the claimant’s compensable injury in determining the IR. The claimant’s spondylolisthesis has now been determined to be part of the compensable injury. Therefore, Dr. F’s certification of MMI on May 5, 2004, with a 0% IR cannot be adopted because he did not rate the entire compensable injury. The doctor assigning the IR shall provide a description and explanation of specific clinical findings related to each impairment, including 0% IRs. Rule 130.1(c)(3)(D)(i). Since the hearing officer’s IR determination has been reversed and there is no other certification of MMI/IR in evidence, we remand the IR issue to the hearing officer.

The hearing officer is to determine whether Dr. F is still qualified and available to be the designated doctor, and if so, request that Dr. F rate the compensable injury, which includes spondylolisthesis, based on the stipulated date of MMI, May 5, 2004, in accordance with the AMA Guides.  In determining the IR, Dr. F should consider the medical records and the certifying examination of the claimant. The hearing officer is to provide the designated doctor’s response to the parties and allow the parties an opportunity to respond and then make a determination regarding the IR. If Dr. F is no longer qualified and available to serve as the designated doctor then another designated doctor is to be appointed pursuant to Rule 126.7(h) to determine the claimant’s IR, which includes spondylolisthesis based on the claimant’s condition on the stipulated date of MMI, May 5, 2004.

SUMMARY

We affirm the hearing officer’s extent of injury, carrier waiver, and SIBs determinations. We reverse the hearing officer’s determination that the claimant’s IR is 20%, and remand the IR issue to the hearing officer for a determination consistent with this decision.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 92642, decided January 20, 1993.

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Veronica L. Ruberto

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

1. Dr. F references page 100 of the AMA Guides which states that “[t]he Injury Model attempts to document physiologic and structural impairments relating to insults other than common developmental findings such as . . . (2) spondylolisthesis, found in 3%” of adults.

   ↑

2. Conversion: 1 cm is equal to 10 mm.

   ↑

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 20, 2007, with the record closing on April 2, 2007. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury extends to include degenerative changes at L4-5 but not at L3-4; (2) the appellant (carrier) waived the right to contest compensability of the degenerative changes at L4-5 but did not waive the right to contest degenerative changes at L3-4; (3) the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the seventh quarter; and (4) the claimant is entitled to SIBs for the eighth quarter. The carrier appealed, disputing the determinations of SIBs entitlement for the seventh and eighth quarters, carrier waiver of the right to contest compensability of the degenerative changes at L4-5, and the determination that the compensable injury extends to include degenerative changes at L4-5. The claimant responded, urging affirmance.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The appeal file reflects that there was no court reporter at the CCH. The compact disc recordings of the CCH are included in the appeal file but are unintelligible, which makes a full review of the record impossible. Additionally, the appeal file does not contain any exhibits from the claimant. The carrier’s appeal refers specifically to claimant’s exhibits, so it appears that claimant’s exhibits were offered and admitted at the CCH. Consequently, we reverse and remand this case for reconstruction of the record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 92642, decided January 20, 1993.

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

CT CORPORATION SYSTEMS

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 19, 2006. The hearing officer decided that the respondent (claimant) was entitled to supplemental income benefits for the fifth, sixth, and seventh quarters, beginning January 11, 2006, and ending October 10, 2006. The appellant (carrier) appealed, arguing essentially that the hearing officer’s decision is against the great weight and preponderance of the evidence because claimant’s unemployment during the qualifying periods under dispute was not a direct result of the impairment from his compensable injury of _____________. The claimant urges affirmance.

DECISION

Reversed and remanded.

Because the record and the exhibits admitted at the CCH are missing from the CCH file and have not been furnished to the Appeals Panel, we reverse and remand for reconstruction of the record, so this panel can consider the record developed at the CCH. See Section 410.203(a).

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202, which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See Appeals Panel Decision 92642, decided January 20, 1993.

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

ROBERT C. SIDDONS

BUILDING 1, SUITE 200

11612 RM 2244 (BEE CAVES ROAD)

AUSTIN, TEXAS 78738.

Cynthia A. Brown

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 (CCH) was held on June 1, 2006. With regard to the only issue before him the hearing officer determined that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the seventh quarter.

The appellant (carrier) appeals, contending both that the claimant did not meet the direct result criteria of Section 408.142(a)(2) and 28 TEX. ADMIN. CODE § 130.102(c) (Rule 130.102(c)) or the requirements of Section 408.142(a)(4) and Rule 130.102(d)(4). The claimant responds, urging affirmance.

DECISION

Reversed and rendered.

The parties stipulated that: (1) the claimant sustained a compensable injury on ______, with an impairment rating of 15%; (2) that no portion of impairment income benefits were commuted; and (3) that the qualifying period for the seventh quarter of SIBs began on December 16, 2005, and ended on March 16, 2006.

Eligibility criteria for SIBs entitlement are set forth in Section 408.142. Section 408.142 as amended by the 79th Legislature, effective September 1, 2005, references the requirements of Section 408.1415 regarding work search compliance standards. Section 408.1415(a) states that the [Texas Department of Insurance, Division of Workers’ Compensation] (Division) Commissioner by rule shall adopt compliance standards for SIBs recipients. In that no such rules have been implemented as of this date, we refer to the eligibility criteria for SIBs entitlement in Rule 130.102. Commissioner’s Bulletin No. B-0058-05 dated September 23, 2005, provides that until new SIBs rules are adopted, the Division’s Rules 130.100-130.110 govern the eligibility and payment of SIBs and remain in effect until they are amended, repealed, or modified by the Commissioner of Workers’ Compensation.

The carrier appealed the hearing officer’s determination that the “Claimant’s unemployment during the qualifying period was a direct result of the impairment from the compensable injury” as being against the great weight and preponderance of the evidence. We hold the hearing officer’s determination on the direct result criteria is supported by the evidence.

The claimant contends that he has a total inability to work in any capacity. Rule 130.102(d)(4) provides that an injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee 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 carrier contends that the hearing officer’s finding that the reports of Dr. P specifically explain how the claimant’s injury caused a total inability to work is against the great weight and preponderance of the evidence. We hold that Dr. P’s reports do constitute a narrative report which specifically explains how the injury causes a total inability to work.

The carrier also contends that there is another record that shows the claimant is able to return to work. The claimant was examined by Dr. H, a carrier required medical examination doctor, on February 3, 2006 (which was during the applicable qualifying period). Dr. H reviewed the claimant’s medical history, commented on diagnostic tests and listed the claimant’s current complaints. In response to a specific question regarding restrictions and “work tasks that he or she should not engage in.” Dr. H stated that the claimant:

“could at this time do primarily sedentary type work activity at best. He would be limited in regards to frequent grasp, repetitive motion, and reaching and working overhead. He would also be limited to the amount of sitting, standing, or walking that he could perform with his radiculopathy in his left lower extremity.”

Dr. H recommended consideration for a microdiscectomy at L5-S1 on the left to eliminate the radicular complaints but recommended against cervical spine surgery. Dr. H noted that some “form of some median level of opioid medication would be reasonable several times a day.”

Dr. H, in the February 3, 2006, report was also asked to perform a functional capacity evaluation (FCE), which he did. The raw figures of that testing, to include two comments of “submaximal effort,” are part of the report. The history and physical exam portion of the report lists the medication that the claimant was taking. In conclusion Dr. H stated that the claimant has the “ability to climb stairs without change in his pain input” and that the claimant on isometric testing “gives very little effort, and he does so consistently.” Those comments are based on evidence that the claimant’s heart rate “does not change sufficiently to indicate significant stress or pain . . . .” Dr. H concludes that “[b]ased on the modified Canadian Aerobic Fitness Testing he can work at a Light to Moderate level over an 8-hour day.” Dr. H discusses various tests performed during the FCE, consistently noting that heart rate and physiological parameters do “not show good effort or consistent effort.” Dr. H again concludes:

[Claimant] can work in Sedentary to Light category jobs based on the Dictionary of Occupational Titles. He can sit, stand, and walk for short periods of time. He can take rest breaks every 1-2 hours and should be allowed some freedom of movement. He can lift approximately 15 lbs frequently and 20 lbs. occasionally. I would not recommend frequent squatting, bending, twisting, pulling, or overhead work. He should not climb ladders or work at heights.

Dr. H concludes his report by attaching a Work Status Report (DWC-73) releasing the claimant to work with restrictions, assessing restrictions as described in his narrative with a sit/stretch break of “1 break every 1-2 hours” and assessing “Sed-Light work.”

The hearing officer addresses Dr. H’s report, emphasizes the statement that claimant could “do primarily sedentary work at best,” (emphasis in the hearing officer’s comment) does not address the notations of submaximal effort in the FCE, and only emphasizes the restrictions listed on the DWC-73. The hearing officer comments that Dr. H’s “estimation that Claimant could return to sedentary work ‘at best’ is not seen as a credible indication that claimant is capable of sedentary work.” The hearing officer remarks that Dr. H’s “statements indicate that Claimant would be limited to ‘less than sedentary’ or ‘modified sedentary’ work, which has been held in such cases as APD 001360 and APD 002971 not to meet the standard of ‘other evidence‘ showing an ability to work under Rule 130.102(d)(4).” We hold that comment to be against the great weight and preponderance of the evidence.

It is clear that Dr. H did a thorough examination, performed an FCE and noted the results of the testing. The FCE and testing clearly showed submaximal effort as demonstrated objectively by the heart rate and “physiological parameters.” Dr. H initially said sedentary type work at best but in discussing the FCE testing Dr. H wrote that the claimant could work “Light to Moderate” work using the “modified Canadian Aerobic Fitness Testing” and sedentary to light work based on the “Dictionary of Occupational Titles.” At all times Dr. H states that claimant can at least work at the sedentary level and depending on which standard (Canadian Aerobic or Dictionary of Occupational Titles) is used, the claimant can work at anywhere from sedentary to moderate level over an eight hour day with sit/stretch breaks every one to two hours. To categorize those extensive findings as being less than sedentary or modified sedentary is factually inaccurate. Further, the claimant’s testimony that he can drive, can walk unassisted, answer the telephone, alternate standing and sitting for short periods and assist his wife, who works, with housework supports Dr. H’s assessment of at least sedentary work.

We hold that the hearing officer’s finding that “[n]o other credible record showed that claimant was able to return to work during the qualifying period for the 7th quarter” (Finding of Fact No. 5) is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We hold that the claimant has not met the requirement of Rule 130.102(d)(4) that there are no other records which show that the claimant is able to return to some level of work. Accordingly, we reverse the hearing officer’s decision that the claimant is entitled to SIBs for the seventh quarter and render a new decision that the claimant is not entitled to SIBs for the seventh quarter.

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.

Thomas A. Knapp
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge