SIBS-9th & Subsequent Quarters Archives

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 4, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the 16th quarter; (2) the appellant (carrier) is relieved from liability for the 16th quarter of SIBs, from September 6, 2017, through December 5, 2017, because the claimant failed to timely file her Application for [SIBs] (DWC-52) for the 16th quarter; and (3) the carrier is relieved from liability for the 17th quarter of SIBs, from December 6, 2017, through January 22, 2018, because the claimant failed to timely file her DWC-52 for the 17th quarter.

On appeal, the carrier is requesting a correction as to a stipulation regarding the ending date of the 17th quarter of SIBs. The carrier asserts that the parties stipulated that the 17th quarter of SIBs ran from December 6, 2017, “through March 6, 2018,” rather than “through January 22, 2018,” as stated in the ALJ’s decision. Also, because of the incorrect ending date of the 17th quarter of SIBs, the carrier appeals the ALJ’s determination that the carrier is relieved from liability for the 17th quarter of SIBs, from December 6, 2017, through January 22, 2018, because the claimant failed to timely file her DWC-52 for the 17th quarter. The appeal file does not contain a response from the claimant.

The ALJ’s determinations that the claimant is not entitled to SIBs for the 16th quarter, and that the carrier is relieved from liability for the 16th quarter of SIBs, from September 6, 2017, through December 5, 2017, because the claimant failed to timely file her DWC-52 for the 16th quarter, have not been appealed and have become final pursuant to Section 410.169.

DECISION

Reformed 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 claimant has not commuted any portion of the impairment income benefits; and the 17th quarter of SIBs ran from December 6, 2017, through January 22, 2018, with a corresponding qualifying period that ran from August 24, 2017, through November 22, 2017.

STIPULATION

We reform the ALJ’s Finding of Fact No. 1.G. to correct an error as to the ending date of the 17th quarter of SIBs from January 22, 2018, to March 6, 2018. Pursuant to 28 TEX. ADMIN. CODE § 130.101(6) (Rule 130.101(6)), the 13-week period for the 17th quarter began on Wednesday, December 6, 2017, and ended on Tuesday, March 6, 2018.

We reform the ALJ’s Finding of Fact No. 1.G. to:

The 17th quarter of SIBs ran from December 6, 2017, through March 6, 2018, with a corresponding qualifying period that ran from August 24, 2017, through November 22, 2017.

SIBS

Eligibility criteria for SIBs entitlement are set forth in Section 408.142. Section 408.1415(a) states, in part, that the Texas Department of Insurance, Division of Workers’ Compensation commissioner by rule shall adopt compliance standards for SIBs recipients. Rules 130.100-130.109, effective July 1, 2009, govern the eligibility of SIBs. Rule 130.104(c) provides, in part, that the injured employee shall file the DWC-52 with the carrier 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 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 carrier.

The evidence supports the ALJ’s finding that the claimant filed a DWC-52 for the 17th quarter of SIBs on January 29, 2018. However the ALJ determined that the carrier is relieved from liability for SIBs, from December 6, 2017, through January 22, 2018, because the claimant failed to timely file her DWC-52 for the 17th quarter. As previously mentioned above, the parties’ stipulation was reformed to correct an error as to the ending date of the 17th quarter of SIBs from January 22, 2018, to March 6, 2018. Given that the ALJ determined that the claimant filed her application on January 29, 2018, and the 17th quarter began on December 6, 2017, and ended on March 6, 2018, the carrier would be relieved from liability for the 17th quarter of SIBs from December 6, 2017, through January 28, 2018.

Accordingly, we reverse that portion of the ALJ’s determination that the carrier is relieved from liability for the 17th quarter of SIBs, from December 6, 2017, through January 22, 2018, because the claimant failed to timely file her DWC-52 for the 17th quarter, and we render a new decision that the carrier is relieved from liability for the 17th quarter of SIBs, from December 6, 2017, through January 28, 2018.

SUMMARY

We reform the ALJ’s Finding of Fact No. 1.G. to state that the 17th quarter of SIBs ran from December 6, 2017, through March 6, 2018, with a corresponding qualifying period that ran from August 24, 2017, through November 22, 2017.

We reverse that portion of the ALJ’s determination that the carrier is relieved from liability for the 17th quarter of SIBs, from December 6, 2017, through January 22, 2018, because the claimant failed to timely file her DWC-52 for the 17th quarter, and we render a new decision that the carrier is relieved from liability for the 17th quarter of SIBs, from December 6, 2017, through January 28, 2018.

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

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 27, 2017, in (city) Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the 12th quarter. The claimant appealed, disputing the ALJ’s determination of SIBs non-entitlement. The respondent (self-insured) responded, urging affirmance of the disputed 12th quarter SIBs determination.

DECISION

Affirmed as reformed.

The parties stipulated, in part, that: the claimant had a 15% or greater impairment rating for the compensable injury; (Dr. S) was properly appointed as the designated doctor to address return to work for the purpose of SIBs; the dates of the 12thquarter of SIBs began on June 30 through September 28, 2017; the dates of the qualifying period for the 12thquarter ran from March 18 through June 16, 2017; and during the qualifying period of the 12th quarter, the number of weekly job searches required by the Texas Workforce Commission for the claimant’s county of residence, County, is five. The evidence reflects that the claimant was injured when she slipped and fell while at work.

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). The ALJ’s determination that the claimant is not entitled to SIBs for the 12thquarter is supported by sufficient evidence and is affirmed.

A written decision is issued in this case to correct Finding of Fact No. 1.C. The parties stipulated on the record that on (date of injury), the claimant sustained a compensable injury, which includes cervical strain, lumbar strain, right hip strain, left thumb strain, right knee strain, and right shoulder strain with partial thickness rotator cuff tear. The ALJ inadvertently omitted the conditions of right hip strain, left thumb strain, and right shoulder strain from Finding of Fact No. 1.C. Accordingly, we reform Finding of Fact No. 1.C. to conform to the actual stipulation made by the parties.

SUMMARY

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the 12th quarter.

We reform Finding of Fact No. 1.C. to read as follows:

The parties stipulated that: [o]n (date of injury), the [c]laimant sustained a compensable injury, which includes cervical strain, lumbar strain, right hip strain, left thumb strain, right knee strain, and right shoulder strain with partial thickness rotator cuff tear.

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

For service in person the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

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

AUSTIN, TEXAS 78701.

For service by mail the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 5, 2017, in (city), Texas, with (hearing officer) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the appellant/cross-respondent (self-insured) did not waive the right to contest the compensability of brachial neuritis by not timely contesting the impairment rating (IR) in accordance with 28 TEX. ADMIN. CODE § 130.102(h) (Rule 130.102(h)); (2) the compensable injury of (date of injury), does not extend to brachial neuritis; (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) abused its discretion in denying the self-insured’s first Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC) (DWC-45) filed on June 22, 2017; (4) the self-insured did not waive its right to contest the respondent/cross-appellant’s (claimant) entitlement to supplemental income benefits (SIBs) for the 12th quarter by failing to timely request a BRC; and (5) the claimant is not entitled to SIBs for the 12th quarter, July 2 through September 30, 2017.

The self-insured appealed the ALJ’s determination, requesting review to correct clerical mistakes. The claimant cross-appealed the ALJ’s determinations. The self-insured responded, urging affirmance of the ALJ’s determinations. The appeal file does not contain a response from the claimant to the self-insured’s appeal.

DECISION

Affirmed in part, 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); the self-insured (we note the ALJ refers to the self-insured as a carrier throughout the decision) has accepted the compensable injury in the form of a cervical strain and the diagnosis of right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h); the qualifying period for the 12th quarter of SIBs was from March 20 through June 18, 2017; the self-insured received the Application for [SIBs] (DWC-52) for the 12th quarter of SIBs on June 19, 2017; the self-insured paid the claimant the 11th quarter SIBs; the self-insured submitted a DWC-45 requesting a BRC disputing the claimant’s entitlement to SIBs on June 22, 2017; the DWC-45 was denied by the Division on June 28, 2017; and the self-insured filed a second DWC-45 disputing the claimant’s entitlement to SIBs for the 12th quarter on July 3, 2017. The evidence established that the claimant was injured during self-defense training.

CLERICAL CORRECTIONS

As noted above the parties stipulated at the CCH that the self-insured has accepted the compensable injury in the form of a cervical strain and the diagnosis of right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h). However, Finding of Fact No. 1.H. omits “right-sided” from the stipulation. We reform Finding of Fact No. 1.H., in part, to state right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h) to reflect the stipulation as made by the parties at the CCH.

The decision states that the true corporate name of the self-insured is City of Fort Worth. However, the evidence established that the correct name for the self-insured is Tarrant County. We reform the decision to reflect that the true corporate name of the self-insured is Tarrant County.

WAIVER OF RIGHT TO CONTEST COMPENSABILITY OF BRACHIAL NEURITIS UNDER RULE 130.102(h)

The ALJ’s determination that the self-insured did not waive the right to contest the compensability of brachial neuritis by not timely contesting the IR in accordance with Rule 130.102(h) is supported by sufficient evidence and is affirmed.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to brachial neuritis is supported by sufficient evidence and is affirmed.

ABUSE OF DISCRETION IN DENYING SELF-INSURED’S DWC-45 FILED ON JUNE 22, 2017

The claimant contended that the ALJ erred in adding the issue of whether the Division abused its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017. We review the ALJ’s ruling to add an issue on an abuse-of-discretion standard, that is, whether the ALJ acted without reference to any guiding rules or principles. Appeals Panel Decision (APD) 031719, decided August 11, 2003, Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). The ALJ correctly noted at the CCH that the BRC report reflects the self-insured’s position, and added the issue at the self-insured’s request and for good cause. The ALJ did not abuse her discretion in adding this issue.

As previously noted the parties stipulated that the self-insured paid the 11th quarter of SIBs, and that it received the claimant’s DWC-52 for the 12th quarter of SIBs on June 19, 2017. It is undisputed that the self-insured had until June 29, 2017, to request a BRC to dispute the claimant’s entitlement to SIBs for the 12th quarter as provided by Rule 130.108(c).

In evidence is a DWC-45 filed with the Division by the self-insured on June 22, 2017. The self-insured indicated that it was disputing entitlement to SIBs, and specified the following:

Inability to work was not direct result of compensable injury, no good faith effort to seek work duringt [sic] qualifying period, and no sufficiently detailed narrative from physician that explains complete inability to work.

Also in evidence is a Commissioner Order dated June 28, 2017, denying the self-insured’s request to schedule a BRC because the self-insured failed to indicate what quarter was in dispute and the description of the disputed issue was insufficient to meet the requirements of Rule 141.1(d). The self-insured submitted another DWC-45 on July 3, 2017, with more specific information; however, as noted above the self-insured’s deadline to file was June 29, 2017. The self-insured argued at the CCH that the Division abused its discretion in denying its DWC-45 filed on June 22, 2017.

Section 408.147(b) provides as follows:

(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].

Rule 141.1, effective October 1, 2010, provides in part:

(d) Request for [BRC]. A request for a [BRC] shall be made in the form and manner required by the [D]ivision. The request shall:

(1) identify and describe the disputed issue or issues;

(2) provide details and supporting documentation of efforts made by the requesting party to resolve the disputed issues, including but not limited to, copies of the notification provided in accordance with subsection (a) of this section, correspondence, e-mails, facsimiles, records of telephone contacts, or summaries of meetings or telephone conversations . . .;

(3) contain a signature by the requesting party attesting that reasonable efforts have been made to resolve the disputed issue(s) prior to requesting a [BRC], and that any pertinent information in their possession has been provided to the other parties . . .; and

(4) be sent to the [D]ivision and opposing party or parties.

(e) Complete Request. A request that meets the requirements of subsection (d) of this section is a complete request for a [BRC]. The [D]ivision will schedule a [BRC] if the request is complete and otherwise appropriate for a [BRC].

(f) Incomplete Request. A request for a [BRC] that does not meet the requirements of subsection (d) of this section is an incomplete request and will be denied.

(1) A denied request for a [BRC] does not constitute a dispute proceeding, except as provided by subsection (g) of this section.

(2) The [D]ivision will notify the parties if a request is denied and state the reasons for the denial.

(3) Upon notice from the [D]ivision, the requesting party may submit a new request for a [BRC] that meets the requirements of this section.

(g) Incomplete Request Denials. If a party disagrees with the [D]ivision’s determination that the request was incomplete, or, if a party has good cause for failing to meet the requirements of subsection (d) of this section, the party may pursue an administrative appeal of the [D]ivision’s determination in accordance with Chapter 142 of this title (relating to Dispute Resolution—[CCH]). The party may also request an expedited [CCH] in accordance with [Rule] 140.3 of this title (relating to Expedited Proceedings).

The self-insured satisfied the criteria of Rule 141.1(g) to pursue an administrative appeal of the Division’s denial of the self-insured’s DWC-45 filed on June 22, 2017, because the self-insured’s position at the August 9, 2017, BRC was that the Division abused its discretion in denying its DWC-45 filed on June 22, 2017, and the self-insured made a motion to add abuse of discretion as an issue at the CCH. See APD 150499-s, decided April 29, 2015.

The ALJ found that the DWC-45 filed by the self-insured on June 22, 2017, satisfied the criteria of Rule 141.1, and determined that the Division abused its discretion in denying the self-insured’s DWC-45 filed on June 22, 2017.

An order of an administrative body is presumed to be valid and the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action. Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref’d).

The evidence established that the Division denied the self-insured’s DWC-45 filed on June 22, 2017, because the self-insured failed to indicate what quarter was in dispute and the description of the disputed issue was insufficient to meet the requirements of Rule 141.1(d).

Rule 141.1(d)(1) requires the request for BRC to both identify and describe the disputed issue or issues. The self-insured’s DWC-45 in evidence does not state which quarter is in dispute and there was no evidence to establish that any information containing the specific quarter in dispute, such as the claimant’s 12th quarter DWC-52, was attached to the DWC-45. Identification of the specific SIBs quarter or quarters being disputed is essential for the Division to determine whether or not it has authority to set the BRC. By not specifying the actual quarter in dispute the self-insured’s request does not identify the disputed issue of whether the claimant is entitled to 12th quarter SIBs, and is therefore not a complete request under Rule 141.1(d). The ALJ’s finding that the DWC-45 submitted by the self-insured on June 22, 2017, satisfied the criteria of Rule 141.1 is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the ALJ’s determination that the Division abused its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017, and we render a new decision that the Division did not abuse its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017.

WAIVER OF 12TH QUARTER SIBs AND CLAIMANT’S ENTITLEMENT TO 12TH QUARTER SIBs

The evidence established that the self-insured’s DWC-45 filed on June 22, 2017, was not a complete request pursuant to Rule 141.1 and that the self-insured did not file another request until after the 10-day deadline. Accordingly, we reverse the ALJ’s determination that the self-insured did not waive its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC, and we render a new decision that the self-insured waived its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC. See APD 111189-s, decided October 3, 2011.

The ALJ determined that the claimant is not entitled to SIBs for the 12th quarter. However, given that we have reversed the ALJ’s determination that the self-insured did not waive its right to contest the claimant’s entitlement to SIBs for the 12th quarter and have rendered a new decision that the self-insured waived its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the 12th quarter, July 2 through September 30, 2017, and we render a new decision that the claimant is entitled to SIBs for the 12th quarter, July 2 through September 30, 2017.

SUMMARY

We reform Finding of Fact No. 1.H., in part, to state right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h) to reflect the stipulation as made by the parties at the CCH.

We reform the decision to reflect that the true corporate name of the self-insured is Tarrant County.

We affirm the ALJ’s determination that the self-insured did not waive the right to contest the compensability of brachial neuritis by not timely contesting the IR in accordance with Rule 130.102(h).

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to brachial neuritis.

We reverse the ALJ’s determination that the Division abused its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017, and we render a new decision that the Division did not abuse its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017.

We reverse the ALJ’s determination that the self-insured did not waive its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC, and we render a new decision that the self-insured waived its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the 12th quarter, July 2 through September 30, 2017, and we render a new decision that the claimant is entitled to SIBs for the 12th quarter, July 2 through September 30, 2017.

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

COUNTY JUDGE GLEN WHITLEY

100 EAST WEATHERFORD STREET

FORT WORTH, TEXAS 76102.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 21, 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 11th quarter, June 17 through September 15, 2017. The appellant (carrier) appealed the ALJ’s determination of entitlement arguing that the evidence is legally insufficient to support the decision. The appeal file does not contain a response from the claimant.

DECISION

Reversed and rendered.

The parties stipulated, in part, that: the claimant sustained a compensable injury on (date of injury), which the Texas Department of Insurance, Division of Workers’ Compensation (Division) determined resulted in an impairment rating of 15% or greater; the claimant’s county of residence requires a minimum of three job search efforts each week of the qualifying period; and that the qualifying period for the 11th quarter of SIBs was from March 5 through June 3, 2017.

Eligibility criteria for SIBs entitlement are set forth in Section 408.142. Section 408.142 references the requirements of Section 408.1415 regarding work search compliance standards. Section 408.1415(a) states that the Division commissioner by rule shall adopt compliance standards for SIBs recipients. 28 TEX. ADMIN. CODE §§ 130.100-130.109 (Rules 130.100-130.109), effective July 1, 2009, govern the eligibility of SIBs.

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

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

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

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

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

The ALJ found that the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period by performing the requisite number of job contacts. It was undisputed that the claimant performed three job searches in each week of the qualifying period in dispute.

Rule 130.102(c) provides that an injured employee has earned less than 80% of the injured employee’s average weekly wage as a direct result of the impairment from the compensable injury if the impairment from the compensable injury is a cause of the reduced earnings. The carrier argues on appeal that the claimant’s unemployment was not a direct result of his impairment from the compensable injury. In evidence is a signed Benefit Dispute Agreement (DWC-24) which states that the compensable injury of (date of injury), does not extend to a left shoulder rotator cuff tear, cervical radiculopathy, carpal tunnel syndrome of the left hand/wrist, subacromial impingement syndrome, left shoulder glenohumeral synovitis, and left shoulder acromioclavicular impingement syndrome. The DWC-24 was approved by a Division ALJ on May 4, 2015. In evidence is a narrative report from a designated doctor who examined the claimant on October 24, 2015, and opined that, with regard to the compensable injuries only, there is no disability from June 7, 2015, to the present for the lumbar strain, left shoulder strain, and left hand contusion. Further, in evidence is a Work Status Report (DWC-73) dated July 22, 2015, from the claimant’s treating doctor which stated the claimant was allowed to return to work without restrictions as of July 22, 2015. A DWC-73 dated April 25, 2017, reflects the claimant was taken completely off work from April 25 through May 5, 2017. The diagnoses listed on the DWC-73 taking the claimant off work were complete rotator cuff tear and “other specified postproced [sic].” The report accompanying that DWC-73 reflects that the rotator cuff tear was to the left shoulder. As previously noted, the left shoulder rotator cuff tear was not part of the compensable injury as agreed to by the parties.

The ALJ’s finding that the claimant’s underemployment or unemployment is a direct result of the impairment from the compensable injury is 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 (Tex. 1986). We reverse the ALJ’s “direct result” finding and render a new finding that the claimant’s unemployment was not a direct result of his impairment from the compensable injury. Accordingly, we reverse the ALJ’s determination that the claimant is entitled to SIBs for the 11th quarter and render a new determination that the claimant is not entitled to SIBs for the 11th quarter.

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

MR. RICHARD GERGASKO, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). An expedited contested case hearing (CCH) was held on January 2, 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 entitled to supplemental income benefits (SIBs) for the 18th quarter, October 26, 2016, through January 24, 2017, because the appellant (self-insured) waived the right to contest the claimant’s entitlement to SIBs for the 18th quarter and (2) the self-insured waived its right to contest SIBs eligibility for the 18th quarter under 28 TEX. ADMIN. CODE § 130.108(c) (Rule 130.108(c)).

The self-insured appealed, arguing that the claimant failed to demonstrate an active effort to obtain employment during the qualifying period for the 18th quarter; that the claimant’s unemployment during the qualifying period for the 18thquarter was not a direct result of her impairment from the compensable injury; and that the self-insured did not waive the right to dispute the claimant’s entitlement to SIBs for the 18th quarter. The claimant responded, urging affirmance.

DECISION

Reversed and rendered in part and affirmed as reformed in part.

It was undisputed that the claimant sustained a compensable injury on (date of injury), which resulted in an impairment rating exceeding 15%. The evidence reflects that the claimant filed an Application for [SIBs] (DWC-52) for the 18th quarter with the self-insured on October 14, 2016. Pursuant to Rule 130.108(c), the self-insured filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division) its Request to Schedule, Reschedule, or cancel a Benefit Review Conference (BRC) (DWC-45) requesting a BRC to dispute the claimant’s entitlement to the 18th quarter of SIBs on October 24, 2016, a date within 10 days after the self-insured’s receipt of the claimant’s DWC-52. On October 25, 2016, the Division denied the self-insured’s request for a BRC for the reason that the claimant’s address listed in the DWC-45 was her former and not the current address to which she had recently moved.

In a decision following a previous CCH conducted on January 2, 2017, in Docket No. AC-11-155208-23-CC-HD42,^[1] the hearing officer found that the Division acted in accordance with Section 410.023 and Rule 141.1 in denying the self-insured’s DWC-45 filed on October 24, 2016, disputing the claimant’s entitlement to SIBs. Based upon the decision in AC-11-155208-23-CC-HD42, the hearing officer found in this case that the self-insured did not request a BRC in accordance with Rule 141.1 within 10 days after the self-insured’s receipt of the claimant’s DWC-52. The hearing officer determined that, pursuant to Rule 141.1(f)(1), the self-insured’s DWC-45 did not constitute a dispute proceeding and, for such reason, it waived its right to contest the claimant’s entitlement to SIBs for the 18th quarter. In Appeals Panel Decision (APD) 170230 decided March 20, 2017, the Appeals Panel held that the self-insured properly disputed the claimant’s entitlement to SIBs for the 18th quarter by filing a DWC-45 meeting the requirements of Rule 141.1; reversed the hearing officer’s decision that the Division acted in accordance with Section 410.023 and Rule 141.1 in denying self-insured’s DWC-45 on the issue; and rendered a new decision that the Division did not act in accordance with Section 410.023 and Rule 141.1 in denying self-insured’s DWC-45 disputing the claimant’s entitlement to SIBs for the 18th quarter on October 25, 2016.

In Finding of Fact No. 8, the hearing officer stated:

8.[The] [self-insured] filed two DWC-45 requests for [BRC] disputing [the] [c]laimant’s entitlement to [SIBs]: on October 21, 2016, and October 27, 2014.

In fact, the self-insured’s DWC-45s were filed with the Division on October 24, 2016, and October 27, 2016. Accordingly, we reform Finding of Fact No. 8 to conform to the evidence as follows:

8.The self-insured filed two DWC-45 requests for [BRC] disputing the claimant’s entitlement to [SIBs]: on October 24, 2016, and October 27, 2016.

In Finding of Fact No. 9 the hearing officer stated:

9.The DWC-45 request filed on October 21, 2016, was denied by the Division; the DWC-45 request filed on October 24, 2016, was approved by the Division.

We reform Finding of Fact No. 9 to conform to the evidence as follows:

9.The DWC-45 request filed on October 24, 2016, was denied by the Division; the DWC-45 request filed on October 27, 2016, was approved by the Division.

The hearing officer based her decision that the self-insured waived its right to dispute the claimant’s entitlement to SIBs for the 18th quarter on the fact that the self-insured listed an incorrect address for the claimant in its DWC-45 and that the Division properly denied the request. As mentioned above; however, we determined in APD 170230, supra that the self-insured complied with the requirements of Rule 141.1 and reversed the hearing officer’s decision that the Division acted in accordance with Section 410.023 and Rule 141.1 in denying the self-insured’s DWC-45 on the issue of SIBs on October 25, 2016. Having determined that the self-insured filed a dispute of the claimant’s entitlement to SIBs for the 18th quarter within 10 days after receiving the claimant’s DWC-52 as provided by Rule 130.108(c) by requesting a BRC and that the self-insured’s DWC-45 met the requirements of Rule 141.1, we rendered a new decision that the Division did not act in accordance with Section 410.023 and Rule 141.1 in denying the self-insured’s DWC-45 disputing the claimant’s entitlement to SIBs for the 18th quarter on October 25, 2016. We accordingly reverse the hearing officer’s decision in this case that the self-insured waived its right to contest SIBs eligibility for the 18th quarter under Rule 130.108(c) and render a new decision that the self-insured did not waive its right to contest SIBs entitlement for the 18th quarter under Rule 130.108(c).

In Finding of Fact No. 6, the hearing officer stated:

6.During the qualifying period for the 18th quarter of [SIBs]:

A. [The] [c]laimant had some ability to work;

B. [The] [c]laimant did demonstrate an active effort to obtain employment each week during the qualifying period;

C. [The] [c]laimant’s unemployment was a direct result of her impairment from the compensable injury.

The hearing officer’s determinations in Finding of Fact No. 6 are supported by sufficient evidence; however, we note that the Decision and Order contains no conclusion of law or decision concerning the claimant’s entitlement to SIBs for the 18th quarter based upon an active effort to obtain employment pursuant to Rule 130.102. Given that the evidence supports the hearing officer’s Finding of Fact No. 6, we reform the hearing officer’s decision that the claimant is entitled to SIBs for the 18th quarter to read as follows:

The claimant is entitled to SIBs for the 18th quarter, October 26, 2016, through January 24, 2017.

SUMMARY

We reform Finding of Fact No. 8 of the Decision and Order to conform to the evidence as follows:

The self-insured filed two DWC-45 requests for [BRC] disputing the claimant’s entitlement to SIBs: on October 24, 2016, and October 27, 2016.

We reform Finding of Fact No. 9 of the Decision and Order to conform to the evidence as follows:

The DWC-45 request filed on October 24, 2016, was denied by the Division; the DWC-45 request filed on October 27, 2016, was approved by the Division.

We reverse the hearing officer’s decision that [the self-insured] waived its right to contest SIBs eligibility for the 18th quarter under [Rule 130.108(c)] and render a new decision that the self-insured did not waive its right to dispute entitlement to SIBs for the 18th quarter under Rule 130.108(c).

We reform the hearing officer’s decision that [the] claimant is entitled to [SIBs] for the 18th quarter, October 26, 2016, through January 24, 2017, because [the self-insured] waived the right to contest [the] [c]laimant’s entitlement to [SIBs] for the 18th quarter and render a new decision that the claimant is entitled to SIBs for the 18th quarter, October 26, 2016, through January 24, 2017

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

For service in person the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

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

AUSTIN, TEXAS 78701.

For service by mail the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

In the Discussion section of her decision, the hearing officer mistakenly identifies the case as Docket No. AC-11-155208-22-CC-HD42.

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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 19, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the 13th quarter. The appellant (carrier) appeals the hearing officer’s determination of SIBs entitlement, contending that the claimant did not have a narrative that specifically explained a total inability to work and there are other records which show the claimant has an ability to work in a sedentary capacity. The carrier additionally argues that the hearing officer combined medical records to create a narrative that the claimant could not work. The claimant responded, urging affirmance of the disputed SIBs determination.

DECISION

Reversed and rendered.

The parties stipulated that on (date of injury), the claimant sustained a compensable injury resulting in an impairment rating of 15% or higher; the dates for the 13th quarter of SIBs began on September 2 through December 1, 2016; and the dates for the qualifying period ran from May 21 through August 19, 2016. The claimant testified that he was injured when he fell into a grease pit and was knocked unconscious, broke his hip, and injured his 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. 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 sole theory of entitlement to SIBs for the 13th quarter is based on a total inability to work. There is no evidence regarding work search efforts, return to work efforts, or involvement with vocational rehabilitation programs or the Texas Workforce Commission. Rule 130.102(d)(1) provides in pertinent part that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the following work search requirements each week during the entire qualifying period:

* * * *

In her discussion of the evidence, the hearing officer stated, “[t]he medical records contained information concerning [the] [c]laimant’s limitations and restrictions and when considered in conjunction with the designated doctors’ and [required medical examination doctors’] reports were sufficient to constitute a narrative explaining how [the] [c]laimant was unable to work because of the compensable injury.” In Appeals Panel Decision 011152, decided July 16, 2001, the Appeals Panel held that Rule 130.102(d)(4) (now found in Rule 130.102(d)(1)(E)) does not contemplate the combining of reports from more than one doctor to somehow fashion a combination narrative report. We have held that the reports from different doctors cannot be read together to create a narrative report. The narrative report must come from one doctor.

In a narrative report dated November 15, 2016, (Dr. R) a designated doctor appointed by the Division stated the claimant “has right lower extremity sensory deficit and weakness and ambulation is extremely difficult without assistance. It is my opinion the injured employee’s medical condition resulting from the workers’ compensation injury has prevented the employee from returning to work in any capacity for the disability period in question from 11/21/2015 to 11/18/2016.” Additionally, in a narrative report dated April 28, 2016, (Dr. D), a Division-appointed designated doctor stated that “[t]he records indicate that [the claimant] was disabled as a result of his injury prior to this incarceration and continued to be disabled following this incarceration with no change in his medical condition during his incarceration. . . . Whether incarcerated or not, [the claimant’s] disability is a direct result of his compensable injury. There are no records to indicate that he was ever released to return to work at any capacity.”

It is clear from her discussion, the hearing officer was persuaded the claimant had a total inability to work during each week of the qualifying period of the 13th quarter of SIBs by combining numerous records from more than one doctor to constitute a narrative explaining how the claimant was unable to work because of the compensable injury. In the instant case, there was not a narrative from a doctor who specifically explained how the compensable injury caused a total inability to work. Accordingly, the hearing officer’s finding that the claimant had no ability to work during the qualifying period for the 13th quarter is so against the great weight as to be clearly wrong and manifestly unjust. We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the 13th quarter and render a new decision that the claimant is not entitled to SIBs for the 13th quarter.

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

MR. GREG FARNIK, ATTORNEY OF RECORD

5525 LBJ FREEWAY

DALLAS, TEXAS 75240.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 22, 2015,^[1] in Houston, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that “[the respondent (claimant)] is entitled to supplemental income benefits (SIBs) for the 11th quarter, July 25, 2014, through October 23, 2014, because [the appellant (carrier)] waived its right to contest [the] [c]laimant’s entitlement to SIBs for the 11th quarter by failing to timely request a benefit review conference (BRC).”

The carrier appealed the hearing officer’s determination, contending that the hearing officer’s determination is unsupported by the evidence. The carrier alleged that the evidence established it timely filed a Request for a [BRC] (DWC-45) along with documentation reflecting its efforts to resolve the disputed SIBs issue with the claimant’s counsel, and therefore the denial by the Texas Department of Insurance, Division of Workers’ Compensation (Division) of the carrier’s DWC-45 was improper. The claimant responded, urging affirmance of the hearing officer’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 a final impairment of 19%; the claimant has not commuted any portion of the impairment income benefits; the 11th quarter of SIBs is from July 25 through October 23, 2014; the qualifying period for the 11th quarter of SIBs was from April 12 through July 11, 2014; and the minimum number of weekly work search contacts for the claimant’s county of residence is three. The claimant testified that she was injured when she slipped and fell on a wet floor.

The hearing officer found the following unappealed findings of fact:

5. [The] [c]laimant did not demonstrate an active effort to obtain employment during each week of the qualifying period for the 11th quarter of SIBs.

7. [The] [c]arrier filed its [DWC-45] to dispute [the] [c]laimant’s entitlement to SIBs for the 11th quarter with the Division on July 25, 2014, within 10 days after receiving the application for SIBs.

8. On July 30, 2014, the Division denied the [carrier’s] DWC-45.

9. [The] [c]arrier did not request an expedited CCH under [28 TEX. ADMIN. Code § 141.1(g) (Rule 141.1(g))] to determine whether there was good cause for failing to meet the requirements of Rule 141.1(d).

The hearing officer determined that the claimant is entitled to 11th quarter SIBs solely on the basis of carrier waiver. The hearing officer stated in the Discussion portion of the decision that the Division’s denial of the carrier’s DWC-45 noted that the documentation of efforts to resolve the disputed issues prior to requesting a BRC was insufficient. The hearing officer also noted that the carrier did not request an expedited CCH under Rule 141.1(g) to determine whether there was good cause for failing to meet the requirements of Rule 141.1(d). The hearing officer stated that because the carrier’s DWC-45 was denied and a complete DWC-45 was not filed within 10 days after receiving the claimant’s application for 11th quarter SIBs, the carrier waived its right to contest the claimant’s entitlement to SIBs for the 11th quarter by failing to timely request a BRC, and therefore the claimant is entitled to 11th quarter SIBs.

The carrier contended that it presented evidence establishing that it filed a DWC-45 on July 25, 2014, disputing the claimant’s entitlement to 11th quarter SIBs, and that it attached to the DWC-45 e-mails between the claimant’s attorney and the carrier’s adjuster as documentation of its efforts to resolve the disputed issue. We note that in evidence are e-mails from (Ms. J) from the carrier to (Ms. H) with the claimant’s attorney’s office that are date stamped as received by the Division on July 25, 2014, which is the same date the carrier filed the DWC-45. Also in evidence is a DRIS note dated September 4, 2014, Sequence Number 183 from a Division employee noting that she had “denied the [DWC-45] based on the fact that I [received] only two pages, which was the DWC-45 and no attachments. After reviewing TxComp, I see that the supportive documentation was scanned in and date stamped on the same day just not noticed that they were (sic) should be together. . . .”

The carrier alleged that it had timely filed a complete DWC-45 disputing the claimant’s entitlement to 11th quarter SIBs, and that because the Division had improperly denied the DWC-45 it did not waive its right to contest the claimant’s entitlement to 11th quarter SIBs.

Section 408.147(b) provides as follows:

Rule 141.1, effective October 1, 2010, provides in part:

(d) Request for [BRC]. A request for a [BRC] shall be made in the form and manner required by the [D]ivision. The request shall:

1. identify and describe the disputed issue or issues;

2. provide details and supporting documentation of efforts made by the requesting party to resolve the disputed issues, including but not limited to, copies of the notification provided in accordance with subsection (a) of this section, correspondence, e-mails, facsimiles, records of telephone contacts, or summaries of meetings or telephone conversations . . .;

3. contain a signature by the requesting party attesting that reasonable efforts have been made to resolve the disputed issue(s) prior to requesting a [BRC], and that any pertinent information in their possession has been provided to the other parties . . .; and

4. be sent to the [D]ivision and opposing party or parties.

(f) Incomplete Request. A request for a [BRC] that does not meet the requirements of subsection (d) of this section is an incomplete request and will be denied.

1. A denied request for a [BRC] does not constitute a dispute proceeding, except as provided by subsection (g) of this section.

2. The [D]ivision will notify the parties if a request is denied and state the reasons for the denial.

3. Upon notice from the [D]ivision, the requesting party may submit a new request for a [BRC] that meets the requirements of this section.

Rule 141.1(g) provides two methods under which a party may pursue a disagreement with the Division’s denial: a party may request an expedited CCH in accordance with Rule 140.3, or a party may pursue an administrative appeal of the Division’s denial in accordance with Chapter 142 relating to Dispute Resolution. While the hearing officer is correct in finding that the carrier did not request an expedited CCH in accordance with Rule 140.3 regarding the Division’s denial of the carrier’s DWC-45, that finding alone does not necessarily establish that the carrier failed to avail itself of its ability to challenge the Division’s denial under Rule 141.1(g). In evidence is a second DWC-45 filed by the carrier on September 3, 2014, in which the carrier described the disputed issue as follows:

[The] [c]arrier asserts that the [Division] abused its discretion in denying the BRC requested [on July 25, 2014] based on [Rule] 141.1. The [c]arrier included with the [July 25, 2014] DWC-45 its attempts to resolve the issue through documentation showing the date the claims adjuster contacted the claimant’s attorney and the representation that counsel would not agree that her client is not entitled to [SIBs]. The communications between the claims adjuster and the claimant’s attorney are memorialized in e-mail communications attached to the DWC-45. All documents reflect hand delivery to the [Division] on July 25, 2014.

A BRC was held on October 3, 2014. The BRC report in evidence shows that the two issues unresolved after the BRC were whether the claimant is entitled to 11th quarter SIBs, and whether the carrier waived its right to contest the claimant’s entitlement to 11th quarter SIBs by failing to timely request a BRC. The BRC report notes that the carrier’s position at the BRC was that it did not waive the right to dispute 11th quarter SIBs because it timely filed a DWC-45 on July 25, 2014, along with documentation showing the carrier’s attempts to resolve the issue with the claimant’s attorney, and that the Division abused its discretion by denying the July 25, 2014, DWC-45. The carrier argued the same position at the CCH.

The evidence in this case shows that the carrier pursued an administrative appeal of the Division’s denial of the carrier’s July 25, 2014, DWC-45 under Chapter 142 relating to Dispute Resolution, which is one of the two methods listed in Rule 141.1(g) under which a party may challenge a Division denial of an incomplete DWC-45.

The claimant contended that the facts in Appeals Panel Decision (APD) 111189-s, decided October 3, 2011, are directly applicable to the case on appeal. In that case the carrier timely filed a DWC-45 to dispute the claimant’s entitlement to 2nd quarter SIBs; however, the Division denied the carrier’s DWC-45. The Division denial noted that all claim information was not provided in Section II of the DWC-45 and that there was an insufficient description of the disputed issue. The claimant in that case argued on appeal that because the carrier’s DWC-45 was denied, the carrier waived its right to dispute the claimant’s entitlement to 2nd quarter SIBs. The Appeals Panel stated that because the carrier’s DWC-45 was incomplete and was denied it did not constitute a dispute proceeding. The Appeals Panel noted that the carrier did not request an expedited CCH under Rule 141.1(g) to determine whether there was good cause for failing to meet the requirements of Rule 141.1(d). The Appeals Panel therefore reversed the hearing officer’s determination that the carrier did not waive the right to contest the claimant’s entitlement to 2nd quarter SIBs by failing to timely request a BRC, and rendered a new decision that the carrier did waive the right to contest the claimant’s entitlement to 2nd quarter SIBs by failing to timely request a BRC.

The carrier in both the instant case and in APD 111189-s, supra, did not request an expedited CCH under Rule 141.1(g) to determine whether there was good cause for failing to meet the requirements of Rule 141.1(d). However, unlike the facts in the instant case, there was no evidence in APD 111189-s that the carrier had pursued an administrative appeal of the Division’s denial of the carrier’s DWC-45 under Chapter 142 relating to Dispute Resolution. As noted above the carrier in the instant case filed a DWC-45 asserting that the Division abused its discretion in denying the carrier’s July 25, 2014, DWC-45, because the carrier did file a complete DWC-45 under Rule 141.1(d). The carrier argued this position at both the BRC and the CCH. Therefore, we find the facts in the instant case distinguishable from those in APD 111189-s, and we hold that the carrier in the instant case appealed the Division’s denial of its July 25, 2014, DWC-45 under Rule 141.1(g).

The hearing officer based her determination that the carrier waived its right to contest the claimant’s entitlement to 11th quarter SIBs on the basis that the carrier’s DWC-45 was denied and a complete DWC-45 was not filed within 10 days after receiving the claimant’s 11th quarter SIBs application. However, as discussed above the carrier in this case appealed the Division’s denial of its July 25, 2014, DWC-45 under Rule 141.1(g). The carrier argued and presented evidence at the CCH that it timely filed a complete DWC-45 under Rule 141.1(d). The hearing officer erred in failing to determine whether or not the carrier filed a complete DWC-45 in compliance with Rule 141.1(d). We reverse the hearing officer’s determination that the claimant is entitled to 11th quarter SIBs because the carrier waived its right to contest the claimant’s entitlement to 11th quarter SIBs by failing to timely request a BRC, and we remand the issues of whether the carrier waived the right to contest the claimant’s entitlement to 11th quarter SIBs and whether the claimant is entitled to 11th quarter SIBs for further action consistent with this decision.

SUMMARY

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the 11th quarter, July 25, 2014, through October 23, 2014, because the carrier waived its right to contest the claimant’s entitlement to SIBs for the 11th quarter by failing to timely request a BRC, and we remand these issues to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to determine whether the carrier’s July 25, 2014, DWC-45 was a complete DWC-45 as provided in Rule 141.1(d). Once the hearing officer makes this determination, the hearing officer is then to determine whether the carrier waived its right to contest the claimant’s entitlement to SIBs for the 11th quarter by failing to timely request a BRC. Once the hearing officer makes this determination, the hearing officer is then to determine whether the claimant is entitled to 11th quarter SIBs.

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

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

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

We note that the decision incorrectly states that the CCH was held on January 22, 2014.
↑

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 March 25, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer determined that the respondent (claimant) was entitled to supplemental income benefits (SIBs) for the 13th quarter, October 12, 2012, through January 10, 2013.

The appellant (carrier) appealed the hearing officer’s SIBs determination. The claimant responded, urging affirmance.

DECISION

Reversed and rendered.

The parties stipulated that: (1) the claimant sustained a compensable injury on [date of injury], which resulted in an impairment rating (IR) of 15% or greater; (2) the claimant had not commuted any portion of the impairment income benefits; (3) the qualifying period for the 13th quarter of SIBs was June 30 through September 28, 2012; (4) during the qualifying period for the 13th quarter of SIBs, the claimant was unemployed; and (5) during the qualifying period of the 13th quarter of SIBs, the minimum number of job contacts required for [County] was five per week.

Eligibility criteria for SIBs entitlement are set forth in Section 408.142. Section 408.142 references the requirements of Section 408.1415 regarding work search compliance standards. Section 408.1415(a) states that the Texas Department of Insurance, Division of Workers’ Compensation commissioner by rule shall adopt compliance standards for SIBs recipients. 28 TEX. ADMIN. CODE §§ 130.100-130.109 (Rules 130.100-130.109), effective July 1, 2009, govern the eligibility of SIBs.

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

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

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

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

The hearing officer’s determination and the claimant’s theory of entitlement for SIBs for the 13th quarter, were based on an active work search effort documented by job applications (Rule 130.102(d)(1)(D)) each week during the qualifying period.

A review of the Detailed Job Search/Employer Contact Log of the Application for [SIBs] (DWC-52) for the 13th quarter qualifying period (June 30 through September 28, 2012) lists job contacts for each week during the qualifying period; however, the claimant only documents four job contacts in the third week (July 14 through July 20, 2012). Clearly the claimant did not meet the requirement of making five job searches during each week of the qualifying period.

As previously noted, Rule 130.102(d)(1) provides that an injured employee “demonstrates an active effort to obtain employment by meeting at least one or any combination of the following work search requirements each week during the entire qualifying period.” The preamble to Rule 130.102 stated “[s]ubsection (d)(1) is also amended to add ‘each week’ before ‘during’ and ‘entire’ before ‘qualifying period’ to clarify that the injured employee’s work search efforts were to continue each week during the entire qualifying period.” (34 Tex. Reg. 2140, 2009). See also Appeals Panel Decision 101722, decided January 12, 2011. The claimant presented no evidence of any other active work search efforts for week three of the 13th quarter qualifying period of SIBs. Therefore, the hearing officer’s SIBs determination is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Accordingly, we reverse the hearing officer’s determination that the claimant is entitled to SIBs for the 13th quarter and we render a new decision that the claimant is not entitled to SIBs for the 13th quarter.

The true corporate name of the insurance carrier is VALLEY FORGE INSURANCE 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:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 5, 2013, in [City], 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 9th through the 15th quarters from December 31, 2010, through September 27, 2012; (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 9th through the 14th quarters from December 31, 2010, through June 13, 2012; and (3) the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the 9th through the 15th quarters by failing to timely request a benefit review conference (BRC). The claimant appeals the hearing officer’s determinations. The carrier responds, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that: (1) the claimant sustained a compensable injury on [date of injury], which resulted in an impairment rating of 15% or greater; (2) the qualifying periods for the 9th through the 15th quarters were from September 18, 2010, through June 15, 2012; (3) the claimant was unemployed during the qualifying periods for the 9th through the 15th quarters of SIBs; and (4) the claimant made no job search efforts during any of the weeks of the qualifying periods for the 9th through the 15th quarters of SIBs.

CARRIER WAIVER

It is undisputed that the carrier did not pay the 8th quarter of SIBs, and that the 8th quarter of SIBs was actively in dispute at the time the claimant filed his DWC-52 for the 9th quarter of SIBs. It is undisputed that the carrier received the claimant’s DWC-52 for the 9th quarter on June 14, 2012. In order to avoid carrier waiver, the carrier had to timely request a BRC. See Section 408.147(b). The hearing officer states in the Background Information “[t]here is no evidence that would tend to show when [the] [c]arrier filed its request for a [BRC] to contest [the] [c]laimant’s entitlement to [SIBs] for the [9th] quarter and the hearing officer is asked to speculate that [the] [c]arrier failed to request a [BRC] within [10] days of the date it received the application for the [9th] quarter.” The hearing officer found that the evidence failed to establish when the carrier filed a request for a BRC to contest the claimant’s entitlement to SIBs for the 9th quarter.

Section 408.147(b) provides as follows:

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

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

Insurance Carrier Dispute; Subsequent Quarter With Prior Payment. If an insurance carrier disputes entitlement to a subsequent quarter and the insurance carrier has paid [SIBs] during the quarter immediately preceding the quarter for which the [DWC-52] is filed, the insurance carrier shall dispute entitlement to the subsequent quarter by requesting a [BRC] as provided by [Rule] 141 of this title (relating to Dispute Resolution—[BRC]) within 10 days after receiving the [DWC-52]. An insurance carrier waives the right to contest the entitlement to [SIBs] for the subsequent quarter if the request is not received by the 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 Appeals Panel Decision (APD) 051130-s, decided July 12, 2005, the Appeals Panel cited to APD 032868-s, decided December 11, 2003, which 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).” The Appeals Panel noted in APD 032868-s 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 APD 080242, decided April 7, 2008, there was an ongoing dispute of the 3rd quarter of SIBs at the time the DWC-52 for the 4th quarter was received by the carrier. In that case, there was no evidence that the carrier requested a BRC on entitlement to the 4th quarter of SIBs or that the carrier asserted that it did request a BRC to contest the 4th quarter of SIBs. The Appeals Panel reversed the hearing officer’s determination that the carrier did not waive the right to contest entitlement to the 4th quarter of SIBs and rendered a new determination that the carrier did waive the right to contest entitlement to the 4th quarter of SIBs. Subsequent Appeals Panel decisions have cited APD 032868-s, 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). See APD 041362, decided July 27, 2004; APD 041726, decided September 2, 2004; and APD 070653, decided May 29, 2007.

In this case, the hearing officer erred in determining that the carrier did not waive the right to contest entitlement to the 9th quarter of SIBs. The carrier states in its response that the claimant failed to offer any evidence at the CCH showing when the carrier disputed the 9th quarter of SIBs, and that the claimant failed to carry his burden of proof that the carrier waived the right to dispute the 9th quarter of SIBs. The evidence showed that the carrier received the claimant’s DWC-52 for the 9th quarter of SIBs on June 14, 2012. It is undisputed that the 8th quarter of SIBs was actively in dispute on June 14, 2012, and there was no evidence that the carrier timely filed a request for a BRC to dispute entitlement to the 9th quarter of SIBs. Consequently, the carrier waived the right to contest entitlement to SIBs for the 9th quarter. The hearing officer’s decision that the carrier did not waive the right to contest entitlement to SIBs for the 9th quarter by failing to timely request a BRC is reversed and a new decision is rendered that the carrier waived the right to contest entitlement to SIBs for the 9th quarter.

As to the 10th through the 15th quarters of SIBs, the hearing officer’s determination that the carrier did not waive the right to contest the claimant’s entitlement to SIBs for the 10th through the 15th quarters by failing to timely request a BRC is supported by sufficient evidence and is affirmed.

ENTITLEMENT TO THE 9TH THROUGH THE 15TH QUARTERS OF SIBS

Given that we have reversed the hearing officer’s carrier waiver determination and we rendered a new decision that the carrier waived the right to contest entitlement to SIBs for the 9th quarter, we reverse the hearing officer’s determination that the claimant is not entitled to SIBs for the 9th quarter and we render a new decision that the claimant is entitled to SIBs for the 9th quarter based on carrier waiver.

The hearing officer’s determination that the claimant is not entitled to SIBs for the 10th through the 15th quarters of SIBs is supported by sufficient evidence and is affirmed.

TIMELY FILING OF THE 9TH THROUGH THE 14TH QUARTERS OF SIBS

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. The exceptions under Rule 130.105(a) do not apply to the facts of this case.

The 9th quarter of SIBs is from December 31, 2010, through March 31, 2011. Although the claimant is entitled to SIBs for the 9th quarter based on carrier waiver, the evidence established that the claimant did not file his DWC-52 for the 9th quarter until June 14, 2012; therefore, the claimant shall not receive the 9th quarter SIBs from December 31, 2010, through March 31, 2011. See APD 050280, decided April 6, 2005. That portion of the hearing officer’s determination that the carrier is relieved of liability for the 9th quarter of SIBs because of the claimant’s failure to timely file a DWC-52 for the 9th quarter from December 31, 2010, through March 31, 2011, is supported by sufficient evidence and is affirmed.

The 10th through the 13th quarters of SIBs period is from April 1, 2011, through March 29, 2012. That portion of the hearing officer’s determination that the carrier is relieved of liability for the 10th through the 13th quarters of SIBs because of the claimant’s failure to timely file a DWC-52 for the 10th through the 13th quarters from April 1, 2011, through March 29, 2012, is supported by sufficient evidence and is affirmed.

The 14th quarter of SIBs is from March 30 through June 28, 2012. As previously stated, the claimant filed for the 9th through the 14th quarters of SIBs on June 14, 2012. That portion of the hearing officer’s determination that the carrier is relieved of liability for the 14th quarter of SIBs because of the claimant’s failure to timely file a DWC-52 for the 14th quarter from March 30 through June 13, 2012, 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 10th through the 15th quarters of SIBs.

We affirm the hearing officer’s determination that the carrier is relieved of liability for the 9th quarter of SIBs because of the claimant’s failure to timely file a DWC-52 for the 9th quarter from December 31, 2010, through March 31, 2011.

We affirm the hearing officer’s determination that the carrier is relieved of liability for the 10th through the 13th quarters of SIBs because of the claimant’s failure to timely file a DWC-52 for the 10th through the 13th quarters from April 1, 2011, through March 29, 2012.

We affirm the hearing officer’s determination that the carrier is relieved of liability for the 14th quarter of SIBs because of the claimant’s failure to timely file a DWC-52 for the 14th quarter from March 30 through June 13, 2012.

We affirm the hearing officer’s determination that the carrier did not waive the right to contest the claimant’s entitlement to SIBs for the 10th through the 15th quarters by failing to timely request a BRC.

We reverse the hearing officer’s decision that the carrier did not waive the right to contest entitlement to SIBs for the 9th quarter by failing to timely request a BRC and we render a new decision that the carrier waived the right to contest entitlement to SIBs for the 9th quarter.

We reverse the hearing officer’s determination that the claimant is not entitled to SIBs for the 9th quarter and we render a new decision that the claimant is entitled to SIBs for the 9th quarter based on carrier waiver.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge