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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 April 20, 2022, 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 first quarter, January 21, 2016, through April 20, 2016; second quarter, April 21, 2016, through July 20, 2016; or third quarter, July 21, 2016, through October 19, 2016. The claimant appealed the ALJ’s determinations.  The carrier (respondent) responded, urging affirmance of the disputed determinations.

DECISION

Affirmed.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury with a 15% or greater impairment rating (IR); and (2) the claimant’s average weekly wage (AWW) is $742.18 for the 13-week period prior to the date of injury. The claimant testified that he was a yard foreman and he fractured his right hip on (date of injury), when he fell onto his right side.

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).  

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

Rule 130.102(b) provides that an injured employee who has an IR of 15% or greater, who has not commuted any impairment income benefits, who has not permanently lost entitlement to [SIBs] and who has completed and filed an Application for [SIBs] (DWC-52) in accordance with this subchapter is eligible to receive SIBs if, during the qualifying period, the injured employee: (1) has earned less than 80% of the injured employee's AWW as a direct result of the impairment from the compensable injury; and (2) has demonstrated an active effort to obtain employment in accordance with [Section] 408.1415 and this section.  

The ALJ determined that the claimant is not entitled to SIBs for the first, second, or third quarter. The ALJ’s determinations are supported by sufficient evidence and are affirmed. However, a decision is being written to clarify a statement made by the ALJ in his discussion.

The ALJ stated in his discussion that the claimant argued he had a total inability to work during the qualifying periods because “he had a total knee replacement.” However, the evidence reflects that the claimant did not undergo a total knee replacement, but a total hip replacement. Under the circumstances of this case, we view the ALJ’s statement in his discussion that the claimant had a total knee replacement instead of a total hip replacement as a typographical error that does not affect the outcome of the case. See Appeals Panel Decision 220307, decided April 20, 2022. The ALJ found that the claimant failed to provide a narrative statement from a doctor which specifically explains how the injury caused a total inability to work during the qualifying periods at issue. This finding is supported by sufficient evidence.

The ALJ additionally noted in his discussion that pursuant to Rule 130.102, the claimant must show that he earned less than 80% of his AWW. He stated that the evidence established that the claimant returned to work on June 10, 2013, was paid the same hourly rate of pay, and received incremental yearly raises. The ALJ found that the claimant did not prove that he earned less than 80% of his AWW and that finding is supported by sufficient evidence.

Accordingly, we affirm the ALJ’s determinations that the claimant is not entitled to SIBs for the first, second, or third quarter.

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

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 5, 2022, 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 first quarter (September 23, 2021, through December 22, 2021). The appellant (carrier) appealed the ALJ’s determination. 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 higher, and that the qualifying period for the first quarter was from June 11, 2021, through September 9, 2021. We note that in Stipulation 1.G., the word “quarter” was mistakenly omitted. Therefore, we reform Stipulation 1.G. to read: During the qualifying period for the first quarter, the claimant was a resident of the county of (city), Texas. The claimant testified that on (date of injury), as a result of the compensable injury he lost his right index finger, and his right middle finger was successfully reattached.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibit 1; Claimant’s Exhibits 1 through 6; and Carrier’s Exhibits A through J. However, in Claimant’s Exhibit 3, page 94 is missing from the records that were admitted into evidence. Additionally, Claimant’s Exhibit 6 is missing page 3 from the records that were admitted into evidence. Because the record at the CCH was incomplete, it must be remanded for the addition or reconstruction of the missing exhibits. See Appeals Panel Decision (APD) 030543, decided April 18, 2003.

Pursuant to Section 410.203(c), the Appeals Panel may not remand a case more than once. Given that we are remanding this case for reconstruction of the record, we have reviewed the audio recording of the January 5, 2022, CCH, the documentary evidence, the ALJ’s decision, the appeal, and the response with regard to the issue in dispute.

The ALJ determined the claimant is entitled to SIBs for the first quarter. The ALJ stated in the discussion portion of the decision that the claimant “lost his complete index finger of his left hand and his middle finger of his left hand was amputated, but was successfully surgically reattached.” She further stated that the claimant had surgery to his left wrist and that the claimant stated he still has loss of strength of his left wrist.

However, the claimant testified that the injury was to his right wrist and fingers, not his left wrist and fingers as stated by the ALJ. The ALJ has misstated the claimant’s testimony in this case regarding the nature of the claimant’s compensable injuries. We view the ALJ’s misstatement of the evidence as a material misstatement of fact. While the ALJ can accept or reject in whole or in part the evidence regarding the claimed injury, her decision in this case is based upon an incorrect understanding of the injury and requires that we reverse her determination on entitlement to SIBs for the first quarter. See APD 172522, decided December 6, 2017, and APD 210449, decided May 24, 2021.

We remand the case to the ALJ for a reconstruction of the record and for the ALJ to correct her misstatement of the evidence regarding the nature of the compensable injury. The ALJ shall consider all of the evidence and make findings of fact, conclusions of law, and a determination of whether the claimant is entitled to SIBs for the first quarter.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 060721, decided June 12, 2006.

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

ROBIN MILLER
5221 N. O’CONNOR BLVD., STE 400
IRVING, TEXAS 75039-3711.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on December 8, 2020, with the record closing on December 28, 2020, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to left claw hand deformity and left upper extremity complex regional pain syndrome (CRPS); (2) the respondent (carrier) did not waive the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the impairment rating (IR) of 26% for the designated doctor determined compensable injury pursuant to 28 TEX. ADMIN. CODE § 130.102(h) (Rule 130.102(h)); (3) the IR of 26% for the designated doctor determined compensable injury assigned by (Dr. S) on August 2, 2019, did not become final under Rule 130.102(h); (4) the appellant (claimant) reached maximum medical improvement (MMI) on November 27, 2017; (5) the claimant’s IR is 4%; (6) the claimant is not entitled to supplemental impairment benefits (SIBs) for the first quarter, June 27, 2020, through September 25, 2020; and (7) the claimant is not entitled to SIBs for the second quarter, September 26, 2020, through December 25, 2020. The claimant appealed, disputing the ALJ’s determinations. The carrier responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to a displaced fracture of the base of the 5th metacarpal bone of the left hand; Dr. S was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor to determine extent of injury, MMI, and IR; the qualifying period for the first quarter of SIBs is from March 15, 2020, through June 13, 2020; and the qualifying period for the second quarter of SIBs for this case is from June 14, 2020, through September 12, 2020. The claimant, a mobile phlebotomist, testified she was injured on (date of injury), when her right knee buckled and she fell on her left hand. We note that the ALJ’s decision indicates there were no witnesses testifying on behalf of the claimant, when in fact, the claimant testified on her own behalf.

MMI/IR, FINALITY, AND WAIVER UNDER RULE 130.102(h)

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due, and if so, an award of benefits due.

In the ALJ’s decision, the ALJ indicated in Conclusion of Law No. 5 and in the Decision section that the IR of 26% assigned by Dr. S did not become final under Rule 130.102(h). However, the ALJ did not make a specific finding of fact regarding the issue of finality as was certified in this case and as required by Section 410.168 and Rule 142.16. See Appeals Panel Decision (APD) 132339, decided December 12, 2013; APD 150510, decided April 21, 2015; APD 162262, decided January 10, 2017; APD 181349, decided August 15, 2018.

We note that Finding of Fact No. 5 states, “[the] [carrier] contested the finding on extent of injury by filing a request for a benefit review conference prior to September 25, 2020.” However, this finding does not indicate that the 26% IR certification by Dr. S was disputed on that date or any other date. Accordingly, we reverse the ALJ’s determination that the IR of 26% for the designated doctor determined compensable injury assigned by Dr. S on August 2, 2019, did not become final under Rule 130.102(h) as being incomplete, and we remand the issue of whether the IR of 26% for the designated doctor determined compensable injury assigned by Dr. S on August 2, 2019, became final under Rule 130.102(h) back to the ALJ for further action consistent with this decision.

The ALJ also stated in Conclusion of Law No. 4 and in the Decision section that the carrier did not waive the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the IR of 26% for the designated doctor determined compensable injury pursuant to Rule 130.102(h). However, again the ALJ failed to make a specific finding of fact regarding the waiver issue as required. Therefore, we reverse the ALJ’s determination that the carrier did not waive the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the IR of 26% for the designated doctor determined compensable injury pursuant to Rule 130.102(h) as being incomplete, and we remand the waiver issue back to the ALJ for further action consistent with this decision.

In Conclusions of Law Nos. 6 and 7 and in the Decision section, the ALJ states that the claimant reached MMI on November 27, 2017, with an IR of 4%. However, the ALJ failed to make specific findings of fact regarding the MMI and IR issues as required. We reverse the ALJ’s determinations that the claimant reached MMI on November 27, 2017, with an IR of 4% as being incomplete, and we remand the issues of MMI and IR back to the ALJ for further action consistent with this decision.

EXTENT OF INJURY

The extent-of-injury conditions at issue in the present case are rated in Dr. S’ 26% IR which is considered in the waiver and finality issues above. Since we have reversed the ALJ’s determination that the carrier did not waive the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the IR of 26% for the designated doctor determined compensable injury pursuant to Rule 130.102(h) as being incomplete, we also reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to left claw hand deformity and left upper extremity CRPS. We remand the issue of whether the compensable injury of (date of injury), extends to left claw hand deformity and left upper extremity CRPS to the ALJ for further action consistent with this decision.

SIBS

The ALJ determined that the claimant is not entitled to SIBs for the first or second quarter because he determined that the claimant’s IR is 4% and does not meet the required 15% IR threshold to be eligible for SIBs. Since we have reversed the ALJ’s determinations that claimant reached MMI on November 27, 2017, with an IR of 4% as being incomplete, we also reverse the ALJ’s determinations that the claimant is not entitled to SIBs for the first quarter, June 27, 2020, through September 25, 2020, and that that the claimant is not entitled to SIBs for the second quarter, September 26, 2020, through December 25, 2020. We remand the issues of whether the claimant is entitled to SIBs for the first quarter, June 27, 2020, through September 25, 2020, and whether the claimant is entitled to SIBs for the second quarter, September 26, 2020, through December 25, 2020, to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the IR of 26% for the designated doctor determined compensable injury assigned by Dr. S on August 2, 2019, did not become final under Rule 130.102(h) as being incomplete, and we remand the issue of whether the IR of 26% for the designated doctor determined compensable injury assigned by Dr. S on August 2, 2019, became final under Rule 130.102(h) back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the carrier did not waive the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the IR of 26% for the designated doctor determined compensable injury pursuant to Rule 130.102(h) as being incomplete, and we remand the waiver issue back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determinations that the claimant reached MMI on November 27, 2017, with an IR of 4% as being incomplete, and we remand the issues of MMI and IR back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to left claw hand deformity and left upper extremity CRPS, and we remand the issue of whether the compensable injury of (date of injury), extends to left claw hand deformity and left upper extremity CRPS to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the first quarter, June 27, 2020, through September 25, 2020, and we remand the issue of whether the claimant is entitled to SIBs for the first quarter, June 27, 2020, through September 25, 2020, to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the second quarter, September 26, 2020, through December 25, 2020, and we remand the issue of whether the claimant is entitled to SIBs for the second quarter, September 26, 2020, through December 25, 2020, to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a decision as to whether the IR of 26% for the designated doctor determined compensable injury assigned by Dr. S on August 2, 2019, became final under Rule 130.102(h). Then, the ALJ is to make findings of fact, conclusions of law, and a decision as to whether the carrier waived the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the IR of 26% for the designated doctor determined compensable injury pursuant to Rule 130.102(h). The ALJ is to then make findings of fact, conclusions of law, and decisions as to whether the claimant has reached MMI, and if so, what is the IR. The ALJ is then to make findings of fact, conclusions of law, and a decision as to whether the compensable injury of (date of injury), extends to left claw hand deformity and left upper extremity CRPS. Finally, the ALJ is to make findings of fact, conclusions of law, and decisions as to whether the claimant is entitled to SIBs for the first and second quarters.

Additionally, the ALJ is to correct the Evidence Presented section to indicate that the claimant testified on her own behalf.

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

The true corporate name of the insurance carrier is AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA 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.

Cristina Beceiro
Appeals Judge

CONCUR:
Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 4, 2021, 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 first quarter from October 9, 2020, through January 7, 2021.

The claimant appealed, disputing the ALJ’s determination that she is not entitled to SIBs for the first quarter. The respondent (carrier) responded, urging affirmance of the disputed SIBs determination.

DECISION

Reversed and remanded.

The parties stipulated, in part, 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 has not commuted any portion of the impairment income benefits (IIBs); and (3) the qualifying period for the first quarter of SIBs was from June 27, 2020, through September 25, 2020.

28 TEX. ADMIN. CODE § 142.13(c)(1) (Rule 142.13(c)(1)) provides, in pertinent part, that no later than 15 days after the benefit review conference, the parties shall exchange with one another the following information:

(A) all medical reports and reports of expert witnesses who will testify at the hearing;

(B) all medical records;

(C)any witness statements;

(D)the identity and location of any witness known to have knowledge of relevant facts; and

(E) all photographs or other documents which a party intends to offer into evidence at the hearing.

The claimant submitted an Application for SIBs for the first quarter into evidence at the CCH. The carrier objected to its admission into evidence, contending that the application was not timely exchanged. The ALJ sustained the carrier’s objection and excluded the claimant’s first quarter SIBs application. Based on that evidentiary ruling, the ALJ found that no exhibits were admitted into evidence to support that the claimant completed and filed a DWC-52 for the first quarter and determined that the claimant was not entitled to SIBs for the first quarter. We note that although the ALJ excluded the claimant’s first quarter SIBs application, the decision incorrectly reflects that all of the claimant’s exhibits that were offered into evidence were admitted.

To obtain a reversal of a decision based on the ALJ’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show the admission or exclusion was in fact error, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper decision. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.—San Antonio 1981, no writ).

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

Rule 130.102(b) provides that an injured employee who has an impairment rating of 15% or greater, who has not commuted any [IIBs], who has not permanently lost entitlement to [SIBs] and who has completed and filed [a DWC-52] in accordance with this subchapter is eligible to receive SIBs if, during the qualifying period, the injured employee: (1) has earned less than 80% of the injured employee's average weekly wage as a direct result of the impairment from the compensable injury; and (2) has demonstrated an active effort to obtain employment in accordance with [Section] 408.1415 and this section.

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

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

On March 27, 2020, the Commissioner of Workers’ Compensation issued Commissioner’s Bulletin # B-0012-20 that noted Governor Greg Abbott declared COVID-19 a statewide public health disaster. The bulletin states that it is in effect for the duration of the governor’s COVID-19 declaration or until further notice from the Division. The bulletin notes that Governor Abbott approved the Division’s request to suspend work search compliance standards for SIBs under Section 408.1415(a) and Rule 130.102(d).

The claimant testified at the CCH that she made some job searches but did not document the searches because of Bulletin #B-0012-20. Additionally, the claimant testified that she filed the DWC-52 by faxing it to the number on the DWC-52 and that she sent the DWC-52 to the adjuster for the carrier. On appeal, the claimant alleges she filed the DWC-52 with the Division on October 2, 2020, and that she has a file-stamped copy that shows receipt as of 10:26 a.m.

Rule 130.103(a) provides:

(a) Division Determination. For each injured employee with an [IR] of 15% of greater, and who has not commuted any [IIBs], the Division will make the determination of entitlement or non-entitlement for the first quarter of [SIBs]. This determination shall be made not later than the last day of the [IIBs] period and the notice of determination shall be sent to the injured employee and the carrier by first class mail, electronic transmission, or personal delivery.

Section 410.163(b) provides, in part, that an ALJ shall ensure the preservation of the rights of the parties and the full development of facts required for the determinations to be made. We have previously required ALJs to take official notice of essential Division records where compliance with the 1989 Act is at issue. See Appeals Panel Decision (APD) 031441, decided July 23, 2003, and cases cited therein. The DWC-52 is an essential Division record necessary for the full development of the record in this case. Therefore, the exclusion of the claimant’s DWC-52 for the first quarter was in error and was reasonably calculated to cause the rendition of an improper judgment. Accordingly, we hold that the ALJ abused his discretion. See generally APD 022702, decided December 16, 2002; APD 030295, decided March 27, 2003; APD 032619-s, decided November 13, 2003.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the first quarter from October 9, 2020, through January 7, 2021, and remand the case to the ALJ to admit the claimant’s DWC-52 for the first quarter and make a determination regarding the claimant’s entitlement to SIBs for the first quarter.

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

The true corporate name of the insurance carrier is XL INSURANCE AMERICA, INC. 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.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 1, 2020, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent/cross-appellant (claimant) is entitled to supplemental income benefits (SIBs) for the first quarter from January 31 through April 30, 2020; and (2) the claimant is not entitled to SIBs for the second quarter from May 1 through July 30, 2020.

The appellant/cross-respondent (self-insured) appealed the ALJ’s determination that the claimant is entitled to SIBs for the first quarter, contending that the claimant applied for jobs that he was not qualified for and was not physically able to perform. The appeal file does not contain a response from the claimant to the self-insured’s appeal.

The claimant cross-appealed, disputing the ALJ’s determination that the claimant is not entitled to SIBs for the second quarter. The claimant argued that due to a statewide health disaster, the claimant was not required to perform a job search as of March 13, 2020. The self-insured responded, urging affirmance of the determination disputed by the claimant.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury in the form of a lumbar sprain, left fibular fracture, left tibia fracture, compartment syndrome, lumbar contusion, and left leg pain which resulted in an impairment rating of 15% or greater; (2) the first quarter of SIBs was from January 31 through April 30, 2020, with a corresponding qualifying period from October 19, 2019, through January 17, 2020; (3) the second quarter of SIBs was from May 1 through July 30, 2020, with a corresponding qualifying period from January 18 through April 17, 2020; and (4) the required number of job searches for Travis County, the claimant’s county of residence, is five per week.

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).

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

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);        

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

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

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

FIRST QUARTER SIBS

The ALJ’s determination that the claimant is entitled to SIBs for the first quarter from January 31 through April 30, 2020, is supported by sufficient evidence and is affirmed.

SECOND QUARTER SIBS

The ALJ noted in the discussion portion of her decision that the claimant filed an Application for [SIBs] (DWC-52) for the second quarter stating that the claimant made the requisite five job searches during each week of the qualifying period for the second quarter. The ALJ further noted that a review of the work search logs indicate that the claimant indicated he only made four work searches during week 13 of the qualifying period for the second quarter. We note that the evidence additionally reflects that the claimant only made four job searches during week 10 of the qualifying period. The ALJ determined that the claimant is not entitled to SIBs for the second quarter because he did not make an active effort to obtain employment in each week of the qualifying period of the second quarter.

On March 27, 2020, the Commissioner of Workers’ Compensation issued Commissioner’s Bulletin # B-0012-20 that noted Governor Greg Abbott declared COVID-19 a statewide public health disaster. The bulletin states that it is in effect for the duration of the governor’s COVID-19 declaration or until further notice from the Division. The bulletin notes that Governor Abbott approved the Division’s request to suspend work search compliance standards for SIBs under Section 408.1415(a) and Rule 130.102(d).

We note that week 10 of the qualifying period of the second quarter of SIBs was from March 21 through March 27, 2020, and week 13 of the qualifying period of the second quarter of SIBs was from April 11 through April 17, 2020. The two weeks of the qualifying period for the second quarter of SIBs that the claimant failed to make five job searches were at a time that the work search compliance standards for SIBs were suspended due to the public health disaster. Accordingly, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the second quarter, May 1 through July 30, 2020, and render a new decision that the claimant is entitled to SIBs for the second quarter, May 1 through July 30, 2020.

SUMMARY

We affirm the ALJ’s determination that the claimant is entitled to SIBs for the first quarter from January 31 through April 30, 2020.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the second quarter, May 1 through July 30, 2020, and render a new decision that the claimant is entitled to SIBs for the second quarter, May 1 through July 30, 2020.

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

HONORABLE JUDGE SAMUEL BISCOE
700 LAVACA, SUITE 2.300
AUSTIN, TEXAS 78701.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act).  A contested case hearing was held on September 10, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ).  The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the first quarter, April 4 through July 3, 2018; (2) the claimant is not entitled to SIBs for the second quarter, July 4 through October 2, 2018; (3) the claimant is not entitled to SIBs for the third quarter, October 3, 2018, through January 1, 2019; (4) the claimant is not entitled to SIBs for the fourth quarter, January 2 through April 2, 2019; (5) the claimant is not entitled to SIBs for the fifth quarter, April 3 through July 2, 2019; and (6) the respondent (carrier) is relieved of liability for SIBs for the first through fourth quarters because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for those quarters.

The claimant appealed, disputing the ALJ’s SIBs determinations.  The claimant also disputed the ALJ’s determination that the carrier is relieved of liability for SIBs for the first through fourth quarters because of the claimant’s failure to timely file SIBs applications for those quarters.  The carrier responded, urging affirmance of the disputed determinations.

DECISION

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

The parties stipulated, in part, that:  (1) the claimant sustained a compensable injury on (date of injury), which the Texas Department of Insurance, Division of Workers’ Compensation (Division) determined resulted in an impairment rating of 15% or greater; (2) the qualifying period for the first quarter of SIBs was from December 21, 2017, through March 21, 2018; (3) the qualifying period for the second quarter of SIBs was from March 22 through June 20, 2018; (4) the qualifying period for the third quarter of SIBs was from June 21 through September 19, 2018; (5) the qualifying period for the fourth quarter of SIBs was from September 20 through December 19, 2018; (6) the qualifying period for the fifth quarter of SIBs was from December 20, 2018, through March 20, 2019; and (7) the claimant’s county of residence requires three job searches each week of the qualifying period.  A review of the record reflects that the parties stipulated that on (date of injury), the claimant’s employer provided workers’ compensation insurance with Texas Mutual Insurance Company.  However, the ALJ incorrectly found in Finding of Fact No. 1.C. that on (date of injury), the claimant’s employer provided workers’ compensation insurance as a self-insured.  We reform Finding of Fact No. 1.C. to conform to the actual stipulation of the parties to read as follows:  On (date of injury), the claimant’s employer provided workers’ compensation insurance with Texas Mutual Insurance Company.  The records reflect that the claimant sustained an injury to his right upper extremity when it was caught in a machine used to cut sheet metal.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence.  Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ).  As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

SIBS

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

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

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

The claimant’s theory of entitlement for SIBs for the first through fifth quarters was based on an active work search effort documented by job applications each week during the qualifying period.  We note that in her discussion of the evidence, the ALJ incorrectly stated that the claimant did not provide the business address, phone number or website for any of the contacts listed.  A review of the evidence reflects that the phone numbers for some of the contacts listed were provided.  However, the evidence reflects that the claimant only performed eight job searches for each of the qualifying periods for the first through fifth quarters of SIBs.  The ALJ found that the claimant did not provide documentation of at least three work search contacts each week of the qualifying periods for the first through fifth quarter qualifying periods.  That finding is supported by sufficient evidence.  Accordingly, the ALJ’s determinations that the claimant is not entitled to SIBs for the first, second, third, fourth, or fifth quarter of SIBs is supported by sufficient evidence and is affirmed.

TIMELY FILING OF SIBS APPLICATION

Section 408.143(c) provides that failure to file a statement under that section relieves the insurance carrier of liability for SIBs for the period during which a statement is not filed.  Rule 130.104(c) provides, in part, that except as otherwise provided in that section, a DWC-52 shall be filed no later than 7 days before, and no earlier than 20 days before, the beginning of the quarter for which the injured employee is applying for SIBs.  Rule 130.105(a) provides, in part, that an injured employee who does not timely file a DWC-52 with the insurance carrier shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the insurance carrier.  Rule 130.105(a) does contain some exceptions to the timely filing of the SIBs application, but none of those exceptions were shown to apply in this case.

The disputed issue regarding timely filing before the ALJ was as follows:  Is the carrier relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the first through fifth quarters, and if so, for what period?  The ALJ’s determination that the carrier is relieved of liability for SIBs for the second through fourth quarters because of the claimant’s failure to timely file a DWC-52 for those quarters is supported by sufficient evidence and is affirmed.

Section 408.143(a) provides that after the Division’s initial determination of SIBs, the employee must file a statement.  We note that by its plain language, Section 408.143(c), which provides that the claimant’s failure to timely file a DWC-52 relieves the carrier of liability for the period during which the statement is not filed, does not apply to the first quarter.  See Appeals Panel Decision 030285, decided March 11, 2003.  Therefore, the ALJ improperly determined that the carrier would be relieved of liability for the first quarter because of the claimant’s late filing.  Although it does not change the outcome of this case, we reverse that portion of the decision that the carrier is relieved of liability for SIBs for the first quarter of SIBs and render a new decision that the carrier is not relieved of liability for SIBs for the first quarter.

As previously noted, the issue before the ALJ also included whether the carrier is relieved of liability for SIBs for the fifth quarter.  The ALJ failed to make a determination of whether the carrier is relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file an application for fifth quarter SIBs which was an issue before her to decide.  Accordingly, we reverse the ALJ’s decision as being incomplete.

It was undisputed that the fifth quarter was from April 3 through July 2, 2019.  The ALJ found that the claimant filed a DWC-52 for the first through fifth quarters on April 19, 2019.  That finding is supported by sufficient evidence.  Accordingly, we render a new decision that the carrier is relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file a DWC-52 from April 3 through April 18, 2019, and that the carrier is not relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file a DWC-52 from April 19 through July 2, 2019.  However, as previously noted, the ALJ’s determination that the claimant is not entitled to SIBs for the fifth quarter, April 3 through July 2, 2019, is supported by sufficient evidence and is affirmed.  Further, we note that Section 408.146(c) provides that notwithstanding any other provision of this section, an employee who is not entitled to SIBs for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury.

SUMMARY

We reform Finding of Fact No. 1.C. to read as follows:  On (date of injury), the claimant’s employer provided workers’ compensation insurance with Texas Mutual Insurance Company.

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the first quarter, April 4 through July 3, 2018.

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the second quarter, July 4 through October 2, 2018.

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the third quarter, October 3, 2018, through January 1, 2019.

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the fourth quarter, January 2 through April 2, 2019.

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the fifth quarter, April 3 through July 2, 2019.

We affirm the ALJ’s determination that the carrier is relieved of liability for SIBs for the second through fourth quarters because of the claimant’s failure to timely file a DWC-52 for those quarters.

We reverse that portion of the ALJ’s determination that the carrier is relieved of liability for SIBs for the first quarter of SIBs and render a new decision that the carrier is not relieved of liability for SIBs for the first quarter.

We reverse the ALJ’s determination as being incomplete and render a new decision that the carrier is relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file a DWC-52 from April 3 through April 18, 2019, and that the carrier is not relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file a DWC-52 from April 19 through July 2, 2019.

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

RICHARD GERGASKO, PRESIDENT
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 5, 2018, with the record closing on March 6, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the compensable injury of (date of injury), does not extend to a right shoulder acromioclavicular joint sprain; (2) the appellant/cross-respondent (claimant) reached maximum medical improvement (MMI) on August 26, 2016; (3) the claimant’s impairment rating (IR) is 19%; (4) the claimant is entitled to supplemental income benefits (SIBs) for the first quarter, from September 30 through December 29, 2017; and (5) the first certification of MMI and assigned IR from (Dr. M) on October 10, 2016, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12). We note that the stipulations contained in Finding of Fact No. 1 are listed as A through E and G through J.

The claimant appealed, disputing the ALJ’s determination that the compensable injury does not extend to a right shoulder acromioclavicular joint sprain. The respondent/cross-appellant (carrier) responded, urging affirmance of the ALJ’s extent-of-injury determination. The carrier cross-appealed, disputing the ALJ’s MMI, IR, and SIBs determinations. The claimant responded, urging affirmance of those determinations.

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. M on October 10, 2016, did not become final under Section 408.123 and Rule 130.12 was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a right shoulder rotator cuff tear. The claimant testified that he was injured while attempting to prevent a heavy bundle of wood from falling off a cart.

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).

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a right shoulder acromioclavicular joint sprain is supported by sufficient evidence and is affirmed.

MMI AND IR

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.”  Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.  Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  Rule 130.1(c)(3) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

The ALJ found that the preponderance of the other medical evidence is not contrary to the MMI/IR certification by Dr. M, the designated doctor, and therefore determined that the claimant reached MMI on August 26, 2016, with a 19% IR. Dr. M initially examined the claimant on June 11, 2016, and certified on July 1, 2016, that the claimant had not reached MMI but was expected to do so on or about November 11, 2016. Dr. M’s attached narrative report reflects that he considered the right shoulder acromioclavicular joint sprain in his MMI/IR certification.

Dr. M next examined the claimant on October 1, 2016, and certified on October 10, 2016, that the claimant reached MMI on August 26, 2016, with a 19% IR, using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. M assessed 24% upper extremity impairment for loss of range of motion of the claimant’s right shoulder, and 10% upper extremity impairment per Table 27 on page 3/61 of the AMA Guides for a distal clavicle resection that was performed for the compensable injury, for a combined whole person IR of 19%. We note that Dr. M stated in his narrative report that there “is also notation of a right shoulder arthroscopy with rotator cuff repair performed on [March 3, 2016]; this operative report was not [received].” Dr. M’s attached narrative report reflects that he considered the right shoulder acromioclavicular joint sprain in his MMI/IR certification. As noted above, we have affirmed the ALJ’s determination that the compensable injury does not extend to a right shoulder acromioclavicular joint sprain as being supported by the evidence. Dr. M’s MMI/IR certification considers and rates a condition that has been determined to not be part of the compensable injury, and as such it cannot be adopted. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on August 26, 2016, with a 19% IR.

There are other MMI/IR certifications in evidence, which are from (Dr. W), the post-designated doctor required medical examination doctor. Dr. W examined the claimant on February 17, 2017, and certified on February 27, 2017, that the claimant reached MMI on July 29, 2016, with a 7% IR. Dr. W’s narrative report makes clear that this MMI/IR certification is based on a right rotator cuff tear and a right shoulder acromioclavicular joint sprain; because this MMI/IR certification considers and rates a noncompensable injury it cannot be adopted. On May 25, 2017, Dr. W amended the MMI/IR certification that was based on a right rotator cuff tear and a right shoulder acromioclavicular joint sprain, to certify that the claimant reached MMI on July 29, 2016, with an 11% IR. We note that the amended Report of Medical Evaluation (DWC-69) incorrectly states Dr. W examined the claimant on February 27, 2017. Because the amended MMI/IR certification considers and rates a noncompensable injury it cannot be adopted.

Dr. W also certified on February 27, 2017, that the claimant reached MMI on July 29, 2016, with a 7% IR, and made clear in her narrative report that this MMI/IR certification is based solely on a right shoulder rotator cuff tear, which is the compensable injury in this case. Dr. W noted in her narrative report that the claimant underwent right shoulder surgery on September 22, 2015, to repair a torn rotator cuff, which included a distal clavicle resection, and another right shoulder surgery on March 3, 2016, to again repair a rotator cuff tear. Dr. W also noted that there was a follow-up appointment with (Dr. S) on July 29, 2016, and that the claimant still had some therapy visits left but was “apparently not making progress.” Dr. W opined July 29, 2016, was the earliest date after which no further material recovery could be anticipated.

In evidence is the office note from Dr. S dated July 29, 2016. On that date Dr. S noted the claimant had increased pain and recurrent full thickness tear of the rotator cuff tendon, and opined that the claimant would benefit from right shoulder arthroscopy with debridement, rotator cuff repair, postoperative immobilization and therapy for 6 weeks. Also in evidence is an office note from Dr. S dated October 7, 2016, in which Dr. S opined the claimant would benefit from right shoulder percutaneous neurostimulation. In Appeals Panel Decision (APD) 012284, decided November 1, 2001, the Appeals Panel noted that the question regarding the date of MMI was not whether the claimant actually recovered or improved during the period at issue, but whether based upon reasonable medical probability, material recovery or lasting improvement could reasonably be anticipated. The Appeals Panel held that it is of no moment that the treatment did not ultimately prove successful in providing material recovery or lasting improvement in the claimant’s condition if improvement could reasonably be anticipated. See also APD 110670, decided July 8, 2011; APD 120071, decided March 9, 2012. Dr. W’s July 29, 2016, date of MMI is not supported by the evidence.

As there is no MMI/IR certification in evidence that can be adopted, we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SIBs

Because we have reversed the ALJ’s MMI and IR determinations and have remanded those issues to the ALJ, we also reverse the ALJ’s determination that the claimant is entitled to SIBs for the first quarter, from September 30 through December 29, 2017, and we remand this issue to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right shoulder acromioclavicular joint sprain.

We reverse the ALJ’s determination that the claimant reached MMI on August 26, 2016, and we remand the issue of the claimant’s date of MMI to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant’s IR is 19%, and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant is entitled to SIBs for the first quarter, from September 30 through December 29, 2017, and we remand this issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. M is the designated doctor in this case. On remand the ALJ is to determine whether Dr. M is still qualified and available to be the designated doctor. If Dr. M is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s MMI and IR for the compensable injury.

Section 401.011(30) provides MMI means the earlier of:  (A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated; (B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or (C) the date determined as provided by Section 408.104.  The ALJ is to either take a stipulation from the parties or make a finding as to the date of statutory MMI.

The ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a right shoulder rotator cuff tear, and does not extend to a right shoulder acromioclavicular joint sprain. The ALJ is also to ensure all of the medical records, including the March 3, 2016, operative report, are sent to the designated doctor. The ALJ is to request the designated doctor to give an opinion on the claimant’s date of MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination.  The ALJ is also to inform the designated doctor of the date of statutory MMI, and that the date of MMI cannot be after the statutory date of MMI.  The parties are to be provided with the designated doctor’s new MMI/IR certification and are to be allowed an opportunity to respond.  The ALJ is then to make a determination on MMI, IR, and whether the claimant is entitled to SIBs for the first quarter, from September 30 through December 29, 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 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 ACCIDENT FUND INSURANCE COMPANY OF AMERICA 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

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 11, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the sole disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the 1st quarter, June 15 through September 13, 2017.

The claimant appealed the ALJ’s determination, contending that the ALJ imposed an incorrect burden of proof to establish a total inability to work under 28 TEX. ADMIN. CODE § 130.102(d)(1)(E) (Rule 130.102(d)(1)(E)). The respondent (self-insured) 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 (IR) of 15% or greater; the claimant has not commuted any portion of his impairment income benefits (IIBs); and the qualifying period for the 1st quarter was February 21 through May 22, 2017. The claimant testified he was injured in a motor vehicle accident.

The SIBs issue listed on the Benefit Review Conference (BRC) Report is as follows:

Is the [c]laimant entitled to [SIBs] for the [1st] quarter, [June 15 through September 3, 2017]?

After the conclusion of the CCH the ALJ notified the parties that the disputed issue on the BRC report was incorrect, and the parties agreed to amend the issue to state the following:

Is the claimant entitled to SIBs for the 1st quarter, June 15 through September 13, 2017?

Rule 130.101 provides, in part, that the 1st quarter is the 13 weeks beginning on the day after the last day of the IIBs period, and that the qualifying period ends on the 14th day before the beginning date of the quarter and consists of the 13 previous consecutive weeks. The evidence established that the claimant’s date of maximum medical improvement is February 15, 2015, and that his IR is 40%. The parties stipulated that the qualifying period for the 1st quarter began on February 21 through May 22, 2017. Based on these dates and figures, the 1st quarter should begin on June 5, 2017, and end on September 3, 2017, rather than begin on June 15, 2017, and end on September 13, 2017.

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 in part 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.

The claimant’s sole theory of entitlement to SIBs for the 1st 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:

* * * *

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

In evidence are letters from (Dr. P) and (Dr. G), dated April 17, 2017, and May 18, 2017, respectively, which were offered to serve as narrative reports to explain how the compensable injury caused a total inability to work. In her discussion of the evidence the ALJ stated that the claimant “failed to provide a single ‘narrative report’ which explained how the compensable injury caused a total inability to work during the qualifying period for the [1st] quarter.”

The Appeals Panel has held that reports from different doctors cannot be read together to create a narrative report.  The narrative report must come from one doctor. Appeals Panel Decision (APD) 011152, decided July 16, 2001; see also APD 130821, decided May 29, 2013, and APD 170210, decided March 22, 2017. In APD 002724, decided January 5, 2001, the Appeals Panel stated that in determining whether the requirements of Rule 130.102(d)(4) (now found in Rule 130.102(d)(1)(E)) for a doctor's narrative report are met, the following will be considered:  amendments; supplements, including CCH testimony from the doctor; information incorporated in the report by reference; or information from a doctor's medical records in evidence that can be reasonably incorporated in the doctor's narrative report by inference based on some connection between the report and the information in the medical records.  See also APD 033152, decided January 16, 2004, and APD 130821. Rule 130.102(d)(1)(E) does not require a single narrative report to establish a total inability to work. We hold that the ALJ has applied an incorrect standard in requiring a single narrative report to establish a total inability to work for purposes of SIBs. Accordingly, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the 1st quarter and we remand the issue of whether the claimant is entitled to SIBs for the 1st quarter to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to determine the correct SIBs 1st quarter dates. The ALJ is also to weigh the evidence and apply the correct legal standard to determine whether or not the claimant is entitled to SIBs for the 1st quarter. The ALJ is to make findings of fact, conclusions of law, and a decision regarding the issue that are consistent with this decision.  The ALJ is not to consider additional evidence on remand.

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

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

JAMES BASS, EXECUTIVE DIRECTOR

125 E. 11TH STREET

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

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

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

DECISION

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

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

REFORMED PORTIONS OF DECISION

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

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

WAIVER OF RIGHT TO CONTEST ENTITLEMENT TO THIRD QUARTER SIBs

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

ENTITLEMENT TO THIRD QUARTER SIBs

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

WAIVER OF RIGHT TO CONTEST ENTITLEMENT TO SECOND QUARTER SIBs

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

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

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

 

Rule 130.108(d) provides as follows:

 

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

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

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

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

CLAIMANT’S ENTITLEMENT TO SECOND QUARTER SIBs

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

CLAIMANT’S ENTITLEMENT TO FIFTH QUARTER SIBs

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

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

* * * *

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

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

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

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

SUMMARY

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

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

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

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

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

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

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

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

DR. DON STOCKTON, SUPERINTENDENT

3205 WEST DAVIS STREET

CONROE, TEXAS 77304-2039.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

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

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 25, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the sole disputed issue by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the first quarter. The appellant (carrier) filed a Request for Correction of Clerical Error noting that the hearing officer mistakenly identified the beginning date of the first quarter of SIBs as May 13, 2015, rather than the correct date of May 13, 2016. The appeal file does not contain a response from the claimant.

DECISION

Affirmed as reformed.

The parties stipulated that: on (date of injury), the claimant sustained a compensable injury which resulted in an impairment rating of at least 15%; three is the required number of work search contacts required by the Texas Workforce Commission for unemployment in the claimant’s county of residence (Runnels) during the qualifying period for the first quarter of SIBs; and the qualifying period for the first quarter of SIBs is from January 30 through April 29, 2016. The Benefit Review Conference Report in evidence identified the issue in dispute as follows: Is the claimant entitled to SIBs for the first quarter, May 13 through August 11, 2016?

The carrier correctly points out in its Request for Correction of Clerical Error that throughout his decision, the hearing officer mistakenly refers to the beginning date of the first quarter as May 13, 2015, rather than the correct date of May 13, 2016. A review of the record reflects that the correct beginning date of the first quarter was stated on the record and the parties agreed that May 13, 2016, was the beginning date of the first quarter. In evidence is the Application for SIBs (DWC-52) which identifies the first quarter as beginning on May 13, 2016. Accordingly, we reform the stated issue in the decision and order to reflect the correct beginning date of the first quarter, May 13, 2016. Additionally, we reform the hearing officer’s decision, both in the beginning paragraph and in the Decision section of the Decision and Order, and Conclusion of Law No. 3 to reflect the correct beginning date of the first quarter, May 13, 2016. The hearing officer’s determination that the claimant is entitled to SIBs for the first quarter, May 13 through August 11, 2016, is affirmed as reformed.

The true corporate name of the insurance carrier is FEDERAL 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

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

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