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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 16, 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 respondent (claimant) is entitled to supplemental income benefits (SIBs) for the eighth quarter, from August 25 through November 23, 2017.

The appellant (carrier) appealed the ALJ’s determination. The carrier contends on appeal that the ALJ misstated the testimony of its witness. The claimant responded, urging affirmance of the ALJ’s determination.

DECISION

Reversed and remanded.

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 period for the eighth quarter of SIBs was from May 13 through August 11, 2017; that during the qualifying period for the eighth quarter of SIBs the claimant was unemployed or underemployed; and the minimum number of job search efforts required for the claimant’s county of residence is five per week.

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

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

The ALJ found that the claimant contacted five potential employers during each week of the qualifying period for the eighth quarter, and that the claimant made an active effort to obtain employment during each week of the qualifying period for the eighth quarter. The ALJ stated the following in the Discussion:

[Ms. J] did an exhaustive review of [the] [c]laimant’s job contacts during the qualifying period. Based upon responses from the individuals at the potential employers, the types of jobs applied for, and the location of the jobs . . . she opined that [the] [c]laimant had made an active effort to obtain employment during each week of the qualifying period.

However, a review of the record shows Ms. J, the carrier’s vocational consultant, specifically testified at the CCH that the claimant is not qualified for the eighth quarter of SIBs “because he did not make an active job search effort for each and every week of the qualifying period.” The ALJ’s statement, upon which his determination that the claimant is entitled to SIBs for the eighth quarter is based, in part, is inconsistent with the testimony and constitutes a material misstatement of the evidence. Accordingly, we reverse the ALJ’s determination that the claimant is entitled to SIBs for the eighth quarter and remand the issue of the claimant’s entitlement to SIBs for the eighth quarter to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, a conclusion of law, and a decision supported by the evidence on whether the claimant is entitled to SIBs for the eighth quarter, from August 25 through November 23, 2017.

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

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on 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 (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. 1.Work in a non-stress single-minded focused task work setting as opposed to a multitask environment.

  2. 2.No driving or operating heavy machinery due to seizure precautions.

  3. 3.No climbing heights.

  4. 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

  1. 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.

  2. 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.

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 November 3, 2010. 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 eighth quarter, September 1 through November 30, 2010.

The appellant (carrier) appealed, contending among other matters that the hearing officer relied on medical reports which were not in evidence. The appeal file does not contain a response from the claimant.

DECISION

Reversed and a new decision rendered.

The parties stipulated that: the Texas Department of Insurance, Division of Workers’ Compensation’s (Division) initial determination of SIBs was made on November 25, 2008; the claimant reached maximum medical improvement on October 9, 2007, with an impairment rating (IR) of 20%; the claimant did not commute any portion of impairment income benefits; and the qualifying period for the eighth quarter began on May 20, 2010, and ended on August 18, 2010.

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, a prison correction officer, sustained a compensable mental trauma injury in (year). The claimant’s theory of entitlement to SIBs for the eighth quarter is based on a total inability to work. 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, in the Background Information portion of his decision, refers to a “May 13, 2010 letter from the treating psychiatrist . . . .” The carrier in its appeal contends that “there is no such evidence in the record for this case.” We agree. The same hearing officer had conducted a CCH involving this claimant for the seventh quarter of SIBs which apparently included the May 13, 2010, report. However, the evidence in this case does not include a May 13, 2010, report from the treating psychiatrist, (Dr. L), who is associated with Mental Health and Mental Retardation (MHMR) Services for the (County).

The hearing officer also referenced the report of (Dr. AB), a carrier required medical evaluation doctor, who in a report dated March 17, 2010, diagnosed the claimant with post-traumatic stress disorder (PTSD), resolved, and rule out major depressive disorder. Dr. AB commented on the claimant’s ability to work as “relative to the work injury in question, the claimant can return to work full duty with no restrictions. Please note that secondary to her personality disorder and other probable comorbid psychiatric problems she probably would not be able to return [to] work.”

In 2008, (Dr. W), a designated doctor, in assigning an IR, referred the claimant to (Dr. B), a neuropsychologist. Dr. B, in a report dated January 29, 2008, diagnosed the claimant as having a “Major Depressive Disorder, single episode, severe without psychotic features” and PTSD. Neither Dr. W’s nor Dr. B’s reports in evidence address an ability to work and do not constitute a narrative report from a doctor which specifically explains how the compensable injury causes a total inability to work.

Also, in evidence are two brief reports from MHMR Services for the (County). A report dated July 2, 2010 (during the eighth quarter qualifying period), from (County) MHMR states the claimant is being treated for major depression and PTSD and that the claimant “has a total inability to work at this time.” The report is signed by a health professional and co-signed by (Dr. I). An attached undated note states that Dr. I has reviewed the claimant’s chart and “does indeed believe she has an inability to work” based on medical documentation. Another report, dated July 28, 2010, also co-signed by Dr. I stated essentially the same thing as the July 2, 2010, note. Although these reports contain a diagnosis of major depression and PTSD for the claimant, each report is insufficient evidence of a narrative from a doctor that specifically explains how the compensable injury causes a total inability to work.

The hearing officer, in his decision and order does not identify what record was a narrative report from a doctor which specifically explained how the compensable injury caused a total inability to work other than the May 13, 2010, report that was not in evidence and our review of the record reveals there is no such report in evidence.

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).

The hearing officer’s determination that the claimant is entitled to SIBs for the eighth quarter is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the hearing officer’s determination that the claimant is entitled to SIBs for the eighth quarter, September 1 through November 30, 2010, and we render a new decision that the claimant is not entitled to SIBs for the eighth quarter, September 1 through November 30, 2010.

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

CORPORATION SERVICE COMPANY

D/B/A CSC–LAWYERS INCORPORATING SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.[1]

Thomas A. Knapp

CONCUR:

Cynthia A. Brown
Appeals Judge

Carisa Space-Beam
Appeals Judge

  1. We note that this is the address listed for the carrier’s registered agent for service of process contained in the Hearing Officer’s Exhibit No. 2 and that the hearing officer in his decision and order lists a different address than that contained in the Hearing Officer’s Exhibit No. 2.

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 16, 2010. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the eighth quarter, January 24 through April 24, 2010, and that the claimant has not permanently lost entitlement to SIBs pursuant to Section 408.146(c). The appellant (carrier) appealed the hearing officer’s determination of the eighth quarter of SIBs entitlement as well as the determination that the claimant has not permanently lost entitlement to SIBs pursuant to Section 408.146(c). The claimant responded, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

EIGHTH QUARTER SIBS

The parties stipulated that: (1) on ___________, the claimant sustained a compensable injury with a 15% impairment rating; (2) the claimant has not commuted any portion of her impairment income benefits; (3) the qualifying period for the eighth quarter of SIBs began on October 12, 2009, and ended on January 10, 2010; and (4) the minimum number of job applications or work search contacts pursuant to 28 TEX. ADMIN. CODE § 130.102(f) (Rule 130.102(f)) required for the eighth quarter qualifying period is five per week. The claimant testified that she injured her neck, back, and left arm in a motor vehicle accident on ___________, while in the course and scope of her employment. Additionally, she testified that she has had surgery on her left shoulder and her back.

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 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 eighth 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 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:

(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);

(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 4, 2009, which the claimant had entered into with DARS. The employment goal in the IPE was identified as a social service worker and the services to be provided by DARS included counseling and guidance, aid with a monthly bus pass, and assistance with tuition, books and supplies for college courses. The start dates of the services to be provided began May 4, 2009, and are anticipated to end on May 4, 2014. The IPE encompasses the entire qualifying period of the eighth 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, submit grades to her counselor, obtain and maintain employment once school is completed, follow doctor recommendations, apply for comparable services/benefits identified to assist the claimant in reaching her employment goal, and follow up on job leads once school is completed. In evidence is correspondence from a DARS representative dated December 22, 2009, which notes that an IPE was developed for the claimant, and that the claimant was actively participating with DARS from December 23, 2008, through December 22, 2009.

As previously noted, the qualifying period for the eighth quarter began on October 12, 2009, and ended on January 10, 2010. The evidence reflects that the claimant was awarded a Pell Grant in December of 2009, and that she completed 12 credit hours in the fall semester beginning August 24, 2009. The record reflects that one of the classes ended on October 15, 2009, but that the other three classes did not end until December 10, 2009. The evidence further reflects that the claimant enrolled in 12 credit hours for the spring semester beginning January 19, 2010.

The claimant attended school the first 9 weeks of the qualifying period. The claimant documented 7 job searches in week 10 of the qualifying period, 8 job searches in week 11 of the qualifying period, and 14 job searches in week 13 of the qualifying period. However, the claimant did not document any job searches for week 12 of the qualifying period, December 28, 2009, to January 3, 2010.

The carrier contends in its appeal that Rule 130.102 requires active efforts in each week of the qualifying period and that because the claimant was neither attending school nor searching for work in week 12 of the qualifying period she did not establish that she was entitled to SIBs for the eighth quarter. The claimant did not present any evidence that she performed any other activity in connection with her IPE in week 12 of the qualifying period. The hearing officer determined that the claimant made a reasonable effort to fulfill her obligations in accordance with the terms of her IPE for the eighth quarter.

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). Although the hearing officer determined the claimant made a reasonable effort to fulfill her obligations in accordance with the terms of her IPE for the eighth quarter, it is undisputed that the claimant did not look for work in week 12 of the qualifying period for the eighth quarter and as previously noted no other evidence was offered that she performed any other activity in connection with her IPE in week 12 of the qualifying period for the eighth quarter. Further, 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). Accordingly, the hearing officer’s decision is reversed.

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. Although the hearing officer did not make a specific written finding regarding whether the claimant had reasonable grounds under the evidence presented for failing to comply with work search requirements in week 12 of the qualifying period for the eighth quarter in his decision and order, he discussed this issue on the record. The hearing officer stated on the record that in his opinion the claimant did not present evidence of reasonable grounds for failing to search for work in week 12 if it is determined that the claimant had to perform an activity in week 12 since she was not attending classes or performing any other activity under the provisions of the IPE. The preamble 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). There is sufficient evidence to support the hearing officer’s stated finding on the record at the CCH that the claimant did not have reasonable grounds for failing to comply with work search requirements in week 12 of the qualifying period for the eighth quarter. We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the eighth quarter and render a new determination that the claimant is not entitled to SIBs for the eighth quarter.

PERMANENT LOSS OF SIBS ENTITLEMENT

The hearing officer’s determination that the claimant has not permanently lost entitlement to SIBs pursuant to Section 408.161(c) is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the hearing officer’s determination that the claimant has not permanently lost entitlement to SIBs pursuant to Section 408.161(c).

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

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA 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.

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 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 (CCH) was held on February 23, 2007. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) is not entitled to eighth quarter supplemental income benefits (SIBs) and that the respondent (carrier) did not waive the right to contest entitlement to the eighth quarter SIBs. The claimant appeals, disputing the determination regarding entitlement to SIBs for the eighth quarter as well as the determination that the carrier did not waive the right to contest entitlement to the eighth quarter SIBs. The carrier responded, urging affirmance.

DECISION

Reversed and rendered.

The parties stipulated that: (1) the claimant sustained a compensable low back and bilateral ankle injury on ____________; (2) the claimant reached maximum medical improvement on January 16, 2004, with a 16% impairment rating; (3) the claimant has not commuted any impairment income benefits; (4) the qualifying period for the eighth SIBs quarter was from June 4 through September 2, 2006; and (5) the eighth SIBs quarter was from September 16 through December 15, 2006. At issue was whether the claimant was entitled to SIBs for the eighth quarter and whether or not the carrier waived its right to contest entitlement to SIBs for the eighth quarter.

The hearing officer found that the claimant had some ability to work during the eighth quarter qualifying period and did not make a good faith effort to obtain employment during the eighth quarter qualifying period commensurate with his ability to work. These findings are supported by the evidence.

The record reflects that the carrier received the claimant’s Application for [SIBs] (DWC-52) for the eighth quarter on September 11, 2006. A CCH was held to decide the issue of entitlement to SIBs for the sixth and seventh quarter’s on August 28, 2006. In that case, the hearing officer determined that the claimant was entitled to the sixth quarter but was not entitled to the seventh quarter. The hearing officer’s decision and order was distributed to the parties on September 6, 2006. Both the carrier and the claimant timely filed appeals of that decision on September 25 and September 28, 2006, respectively. The carrier contends it was not required to request a benefit review conference (BRC) regarding the eighth quarter of SIBs because at the time it received the claimant’s application the decision regarding entitlement to SIBs for the seventh quarter had not yet been appealed. The claimant contends that the carrier had an obligation to timely request a BRC because there was an ongoing dispute of the seventh quarter at the time the SIBs application for the eighth quarter was received by the carrier. The claimant argues the dispute is ongoing until a final determination has been made by the Texas Department of Insurance, Division of Workers’ Compensation (Division).

Section 408.147(b) provides as follows:

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

28 TEX. ADMIN. CODE §130.108 (d) and (e) (Rule 130.108 (d) and (e)) provide as follows:

(d)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 Application for [SIBs] is filed, the carrier shall dispute entitlement to the subsequent quarter by requesting a [BRC] as provided by §141.1 of this title (relating to Requesting and Setting a [BRC]) within 10 days after receiving the Application for [SIBs]. A carrier waives the right to contest the entitlement to [SIBs] for the subsequent quarter if the request is not received by the [Division] within 10 days after the date the insurance carrier received the Application for [SIBs]. The insurance carrier does not waive the right to contest entitlement to [SIBs] if the carrier has returned the injured employee’s Application for [SIBs] pursuant to §130.104(c) of this title (relating to Determination of Entitlement or Non-entitlement for Subsequent Quarters).

(e)Insurance Carrier Disputes; Subsequent Quarter Without Prior Payment. If an insurance carrier disputes entitlement to a subsequent quarter and the carrier did not pay [SIBs] during the quarter immediately preceding the quarter for which the Application for [SIBs] is filed, the 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 carrier’s finding of non-entitlement and instructions about the procedures for contesting the carrier’s determination as provided by subsection (b) of this section.

In Appeals Panel Decision (APD) 032868-s, decided December 11, 2003, the Appeals Panel stated that “[t]he 1989 Act and rules contain no specific provisions relating to the factual situation where the immediately preceding quarter is actively under dispute at the time the carrier receives the [DWC-52] for the subsequent quarter” and that “the proper approach, when the rule does not fit the factual situation is to return to the statutory provision in the 1989 Act – Section 408.147(b).” In that decision, the Appeals Panel held that “when the issue of entitlement to the prior quarter of SIBs is ongoing and the claimant submits a [DWC-52] for the subsequent quarter, the carrier must timely request a BRC if it wishes to dispute the subsequent quarter, and failure to do so results in waiver as provided in Section 408.147(b).”

Subsequent Appeals Panel decisions have cited APD 032868-s, supra, for the proposition that where the immediately preceding quarter is “actively under dispute” at the time the carrier receives the DWC-52, the carrier must comply with the provisions of Section 408.147(b). APD 041362, decided July 27, 2004; and APD 041726, decided September 2, 2004.

As previously stated, the carrier received the DWC-52 on September 11, 2006. The carrier filed a Request for [BRC] (DWC-45) regarding the eighth quarter of SIBs. The DWC-45 was dated September 15, 2006. However, the DWC-45 was unsigned and in correspondence dated September 19, 2006, the Division acknowledged receipt of the request but refused to schedule a BRC because there was no “certification signature” on the DWC-45. See APD 972512, decided January 20, 1998. The carrier resubmitted a DWC-45 regarding the eighth quarter of SIBs on September 27, 2006. The claimant appealed the seventh quarter determination of non-entitlement made by the hearing officer. Since the time for filing an appeal of the immediately preceding quarter had not yet expired when the carrier received the DWC-52 for the eighth quarter, and the seventh quarter was in fact appealed, the issue of entitlement to the prior quarter of SIBs (the seventh quarter) was ongoing. The carrier failed to timely file a signed DWC-45 within 10 days after it received the DWC-52 for the eighth quarter. The hearing officer’s determination that the carrier did not waive the right to contest entitlement to eighth quarter SIBs is in error. We reverse the hearing officer’s determination that the carrier did not waive the right to contest entitlement to the eighth quarter SIBs and render a new determination that the carrier did waive the right to contest entitlement to the eighth quarter SIBs. Therefore, the determination that the claimant is not entitled to SIBs for the eighth quarter is also reversed and a new determination is rendered that the claimant is entitled to SIBs for the eighth quarter.

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

LEO F. MALO

12222 MERIT DRIVE, SUITE 700

DALLAS, TEXAS 75251.

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 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 Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 20, 200. The hearing officer determined that the respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the 8th quarter, that the claimant is entitled to SIBs for the 9th, 10th, 11th and 12th quarters and that the appellant (carrier) did not waive the right to contest the claimant’s entitlement to SIBs for the 8th, 10th and 11th quarters by failing to timely request a benefit review conference. The hearing officer’s determinations regarding the 8th, 9th, 10th and 12th quarters and the carrier waiver issue have not been appealed and have become final pursuant to Section 410.169.

The carrier appeals the entitlement to SIBs for the 11th quarter on the basis that the claimant had failed to look for employment every week of the qualifying period and document her job search efforts. The claimant responded, asserting that she had been enrolled in and satisfactorily participated in a full-time vocational rehabilitation program (VRP) sponsored by the Department of Assistive and Rehabilitation Services (DARS) during the qualifying period.

DECISION

Reversed and a new decision rendered.

The parties stipulated that the claimant sustained a compensable injury on ______, with an impairment rating (IR) of 15% or more, that no portion of impairment income benefits had been commuted and that the qualifying period for the 11th quarter was from August 20 through November 18, 2005. The hearing officer’s determination that the claimant’s unemployment during the qualifying period for the 11th quarter “was a direct result of [her] impairment” was not appealed.

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 28 TEX. ADMIN. CODE § 130.102 (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 claimant proceeded on dual theories for entitlement to SIBs based on enrollment and satisfactory participation in a full-time VRP sponsored by DARS and a good faith effort to obtain employment through job search efforts. Rule 130.102(d)(2) 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 enrolled in, and satisfactorily participated in, a full-time VRP sponsored by the Texas Rehabilitation Commission (TRC) (now part of DARS) during the qualifying period. Although a DAR’S counselor testified that the claimant had been enrolled in and satisfactorily participated in a full-time VRP, there was no documentation to support that testimony with regard to the qualifying period for the 11th quarter and the Individual Plan for Employment in evidence was dated after the qualifying period in question with the dates of service to begin on November 30, 2005, to December 30, 2006 (after the qualifying period). The hearing officer, in his Background Information commented that during the qualifying period for the 11th quarter the claimant “did not participate in any kind of full time rehabilitation program sponsored by the . . . (DARS).” We hold that the claimant did not meet the requirements of Rule 130.102(d)(2).

Rule 130.102(d)(5) 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 provided sufficient documentation as described in Rule 130.102(e) to show that he or she has made a good faith effort to obtain employment. Rule 130.102(e) provides that, except as provided in Subsection (d), (1), (2), (3) and (4) of Rule 130.102, an injured employee who has not returned to work and is able to return to work in any capacity shall look for employment commensurate with his or her ability to work every week of the qualifying period and document his or her job search efforts, and that in determining whether or not the injured employee has made a good faith effort to obtain employment under subsection (d)(5), the reviewing authority shall consider the information provided by the injured employee, which may include, but is not limited to information listed in subsection (e)(1)-(11). The qualifying period for the 11th quarter, as stipulated, began on August 20, 2005, and the claimant documented four job searches during the initial week of the qualifying period (11th quarter) August 20 through August 26, 2005. The claimant failed to document any job searches during the second week of the qualifying period, August 27 through September 2, 2005. The evidence does not reflect another documented job search until September 5, 2005, in the third week of the qualifying period. The hearing officer, in the Background Information, commented that the “Claimant documented that she looked for work in each week during the qualifying periods . . . and eleventh quarters.” We hold that comment to be factually incorrect. We further hold that the claimant failed to document any job search efforts during the second week of the 11th quarter qualifying period and therefore did not meet the requirements of Rule 130.102(e).

Accordingly, we reverse the hearing officer’s decision that the claimant is entitled to SIBs for the 11th quarter and render a new decision that the claimant is not entitled to SIBs for the 11th quarter.

The true corporate name of the insurance carrier is SECURITY INSURANCE COMPANY OF HARTFORD successor in interest to FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY
701 BRAZOS STREET, SUITE 1050
AUSTIN, TEXAS 78701.

Thomas A. Knapp
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

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