This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 6, 2020, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the fifth, sixth, or seventh quarter; (2) the respondent (carrier) is relieved of liability for SIBs because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for the fifth quarter from September 10 through December 9, 2019; and (3) the claimant has permanently lost entitlement to SIBs benefits pursuant to Section 408.146(c). The claimant appealed, disputing the ALJ’s determinations of SIBs entitlement for the fifth, sixth, and seventh quarters; permanent loss of entitlement to SIBs as well as the ALJ’s determination that the carrier is relieved of liability for SIBs for the fifth quarter because of the claimant’s failure to timely file a DWC-52. The carrier responded, urging affirmance of the disputed determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury, which resulted in an impairment rating of 15% or greater; the qualifying period for the fifth quarter of SIBs was from May 29 through August 27, 2019; the qualifying period for the sixth quarter of SIBs was from August 28 through November 26, 2019; and the qualifying period for the seventh quarter of SIBs was from November 27, 2019, through February 25, 2020. It was undisputed that the claimant sustained an injury to his right hand on (date of injury). We note that the ALJ’s signature in her decision is mistakenly dated May 6, 2019, rather than May 6, 2020.

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

SIBS

Eligibility criteria for SIBs entitlement are set forth in Section 408.142. Section 408.142 references the requirements of Section 408.1415 regarding work search compliance standards. Section 408.1415(a) states that the Texas Department of Insurance, Division of Workers’ Compensation (Division) commissioner by rule shall adopt compliance standards for SIBs recipients. 28 TEX. ADMIN. CODE §§ 130.100-130.109 (Rules 130.100-130.109), effective July 1, 2009, govern the eligibility of SIBs. The claimant’s theory of entitlement for SIBs for the fifth, sixth, and seventh quarters was that he had a total inability to work. The ALJ found that during the qualifying periods for the fifth, sixth, and seventh SIBs quarters: the claimant was unemployed; the claimant did not actively participate in a vocational rehabilitation program; the claimant did not demonstrate an active effort to obtain employment each week during the entire qualifying periods; the claimant had some ability to work; and the claimant did not demonstrate that he had reasonable grounds for failing to comply with the work search requirements under Rule 130.102(d).

The ALJ’s determination that the claimant is not entitled to SIBs for the fifth, sixth, or seventh quarter of SIBs is supported by sufficient evidence and is affirmed.

PERMANENT LOSS OF ENTITLEMENT TO SIBS

Section 408.146(c) provides that an employee who is not entitled to SIBs for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury. Rule 130.106(a) similarly provides that an injured employee who is not entitled to SIBs for a period of four consecutive quarters permanently loses entitlement to such benefits.

Once it has been determined that the claimant was not entitled to SIBs for a period of four consecutive quarters, the claimant permanently loses entitlement to SIBs. In evidence was a prior decision and order from a CCH held on January 16, 2020, that determined that the claimant was not entitled to SIBs for the first, second, third, or fourth quarter. Additionally, in evidence is a letter dated March 4, 2020, stating that the Appeals Panel did not issue a written decision regarding the January 16, 2020, CCH and the ALJ’s decision became final. Section 410.205(b) provides that the decision of the appeals panel regarding benefits is binding during the pendency of an appeal under Subchapter F or G (relating to judicial review). The ALJ’s determination that the claimant has permanently lost entitlement to SIBs pursuant to Section 408.146(c) is supported by sufficient evidence and is affirmed.

TIMELY FILING OF SIBS APPLICATION

Section 408.143(c) provides that failure to file a statement under that section relieves the insurance carrier of liability for SIBs for the period during which a statement is not filed. Rule 130.104(c) provides, in part, that except as otherwise provided in that section, a DWC-52 shall be filed no later than 7 days before, and no earlier than 20 days before, the beginning of the quarter for which the injured employee is applying for SIBs. Rule 130.105(a) provides, in part, that an injured employee who does not timely file a DWC-52 with the insurance carrier shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the insurance carrier. Rule 130.105(a) does contain some exceptions to the timely filing of the SIBs application, but none of those exceptions were shown to apply in this case. See also Appeals Panel Decision 191783, decided November 7, 2019.

The disputed issue regarding timely filing before the ALJ was as follows: Is the carrier relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the fifth quarter, and if so, for what period? It is undisputed that the fifth quarter for SIBs was from September 10 through December 9, 2019. The ALJ found that the carrier received the claimant’s DWC-52 for the fifth quarter on November 26, 2019. That finding is supported by sufficient evidence. However, the ALJ mistakenly determined that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the fifth quarter from September 10 through December 9, 2019, the entire fifth quarter. We affirm that portion of the ALJ’s determination that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the fifth quarter from September 10 through November 25, 2019. Although it does not change the outcome of this case, we reverse that portion of the decision that the carrier is relieved of liability for SIBs for the fifth quarter of SIBs from November 26 through December 9, 2019, and render a new decision that the carrier is not relieved of liability for SIBs for the period of November 26 through December 9, 2019, based on the claimant’s filing of a DWC-52 for the fifth quarter on November 26, 2019. However, once the claimant permanently lost entitlement to SIBs he cannot subsequently be found to be entitled to SIBs for a succeeding quarter on either the merits or by waiver.

SUMMARY

We affirm the ALJ’s determination that the claimant is not entitled to SIBs for the fifth, sixth, or seventh quarter of SIBs.

We affirm the ALJ’s determination that the claimant has permanently lost entitlement to SIBs pursuant to Section 408.146(c).

We affirm that portion of the ALJ’s determination that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the fifth quarter from September 10 through November 25, 2019.

We reverse that portion of the decision that the carrier is relieved of liability for SIBs for the fifth quarter of SIBs from November 26 through December 9, 2019, and render a new decision that the carrier is not relieved of liability for SIBs for the period of November 26 through December 9, 2019, based on the claimant’s filing of a DWC-52 for the fifth quarter on November 26, 2019.

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

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

Margaret L. Turner
Appeals Judge

CONCUR:
Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on 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 October 29, 2012, in [City], Texas, with {hearing Officer] presiding as hearing officer. With regard to the three disputed issues before him, the hearing officer determined that: (1) the respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the ninth quarter based on an active effort to obtain employment; (2) because the appellant (carrier) waived its right to contest the claimant’s entitlement to SIBs for the ninth quarter by failing to timely request a benefit review conference (BRC), the claimant is entitled to SIBs based on carrier waiver; and (3) because “the claimant was not entitled to [SIBs] for 12 consecutive months, he has permanently lost entitlement to [SIBs]. Because the carrier waived its right to contest the [ninth] [q]uarter, however, the carrier must still pay the claimant SIBs for [the] [ninth] [q]uarter.”

The carrier appealed the hearing officer’s determinations that the carrier had waived its right to contest the ninth quarter of SIBs and that the carrier had to pay SIBs for the ninth quarter, contending that since the claimant has permanently lost entitlement to SIBs, the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the ninth quarter. The claimant responded, urging affirmance.

The hearing officer’s determinations that: (1) the claimant is not entitled to SIBs for the ninth quarter based on an active effort to obtain employment; and (2) because the claimant was not entitled to SIBs for 12 consecutive months, he has permanently lost entitlement to SIBs, have not been appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The parties stipulated that: the claimant had a final impairment rating of 15%; the claimant did not commute any portion of his impairment income benefits and the qualifying period for the ninth quarter runs from May 2 through July 31, 2012.

In a decision and order dated November 15, 2011, the claimant was determined not to be entitled to SIBs for the fifth quarter. Texas Department of Insurance, Division of Workers’ Compensation records indicate that decision was not appealed.

In a decision and order dated September 5, 2012, the claimant was determined not to be entitled to SIBs for the sixth, seventh, or eighth quarters. Although that decision was appealed to the Appeals Panel, the hearing officer’s decision was allowed to become final on November 19, 2012.

Section 408.146(c) provides that an employee who is not entitled to SIBs for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury. 28 TEX. ADMIN. CODE § 130.106(a) (Rule 130.106(a)) similarly provides that an injured employee who is not entitled to SIBs for a period of four consecutive quarters permanently loses entitlement to such benefits and that determination was not appealed.

Once it has been determined that the claimant was not entitled to SIBs for a period of four consecutive quarters, the claimant permanently loses entitlement to SIBs. In this case, once the claimant permanently lost entitlement to SIBs he cannot subsequently be found to be entitled to SIBs for a succeeding quarter (the ninth quarter in this case) on either the merits or by waiver. In a decision and order dated November 15, 2011, the claimant was determined not to be entitled to SIBs for the fifth quarter. In another decision and order dated September 5, 2012, the claimant was determined not to be entitled to SIBs for the sixth, seventh and eighth quarters. The hearing officer determined that the claimant has permanently lost entitlement to SIBs pursuant to Section 408.146(c) and Rule 130.106(a), and that determination was not appealed.

Accordingly, we reverse the hearing officer’s determination that because the carrier waived its right to contest the claimant’s entitlement to SIBs for the ninth quarter by failing to timely request a BRC, the claimant is entitled to SIBs based on carrier waiver and we render a new decision that the claimant is not entitled to SIBs for the ninth quarter because he has permanently lost entitlement to SIBs pursuant to Section 408.146(c) and Rule 130.106(a).

We also reverse by striking so much of Conclusion of Law No. 5 and the Decision portion of the hearing officer’s decision and order that “[b]ecause the carrier waived its right to contest the [ninth] [q]uarter, however, the carrier must still pay the claimant’s SIBs for the [ninth] [q]uarter [based on a carrier waiver].” We render a new decision that because the claimant has permanently lost entitlement to SIBs the claimant is not entitled to SIBs for the ninth quarter and therefore, the carrier is relieved from further payment of SIBs.

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.

Thomas A. Knapp

CONCUR:

Cynthia A. Brown
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 April 16, 2010. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the eighth quarter, January 24 through April 24, 2010, and that the claimant has not permanently lost entitlement to SIBs pursuant to Section 408.146(c). The appellant (carrier) appealed the hearing officer’s determination of the eighth quarter of SIBs entitlement as well as the determination that the claimant has not permanently lost entitlement to SIBs pursuant to Section 408.146(c). The claimant responded, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

EIGHTH QUARTER SIBS

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

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

The claimant’s theory of entitlement to SIBs for the eighth quarter is active participation in a vocational rehabilitation program (VRP). Section 408.1415(a)(1) provides that to be eligible to receive SIBs, a recipient must provide evidence satisfactory to the Division of active participation in a VRP conducted by the Department of Assistive and Rehabilitative Services (DARS) or a private vocational rehabilitation provider.Rule 130.101(8) defines VRP as any program, provided by DARS, a comparable federally-funded rehabilitation program in another state under the Rehabilitation Act of 1973, as amended, or a private provider of vocational rehabilitation services that is included in the Registry of Private Providers of Vocational Rehabilitation Services, for the provision of vocational rehabilitation services designed to assist the injured employee to return to work that includes a VRP. A VRP, also known as an Individual Plan for Employment (IPE) at DARS, includes, at a minimum, an employment goal, any intermediate goals, a description of the services to be provided or arranged, the start and end dates of the described services, and the injured employee’s responsibilities for the successful completion of the plan.

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

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

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

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

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

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

In evidence was an IPE dated May 4, 2009, which the claimant had entered into with DARS. The employment goal in the IPE was identified as a social service worker and the services to be provided by DARS included counseling and guidance, aid with a monthly bus pass, and assistance with tuition, books and supplies for college courses. The start dates of the services to be provided began May 4, 2009, and are anticipated to end on May 4, 2014. The IPE encompasses the entire qualifying period of the eighth quarter. The claimant’s responsibilities in achieving the employment goal included: maintain at least a 2.0 grade point average and 12 credit hours each semester, complete a Pell Grant, submit grades to her counselor, obtain and maintain employment once school is completed, follow doctor recommendations, apply for comparable services/benefits identified to assist the claimant in reaching her employment goal, and follow up on job leads once school is completed. In evidence is correspondence from a DARS representative dated December 22, 2009, which notes that an IPE was developed for the claimant, and that the claimant was actively participating with DARS from December 23, 2008, through December 22, 2009.

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

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

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

As previously noted Rule 130.102 provides that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the specified work search requirements each week during the entire qualifying period. The preamble to Rule 130.102 stated “[s]ubsection(d)(1) is also amended to add ‘each week’ before ‘during’ and ‘entire’ before ‘qualifying period’ to clarify that the injured employee’s work search efforts were to continue each week during the entire qualifying period.” (34 Tex. Reg. 2140, 2009). Although the hearing officer determined the claimant made a reasonable effort to fulfill her obligations in accordance with the terms of her IPE for the eighth quarter, it is undisputed that the claimant did not look for work in week 12 of the qualifying period for the eighth quarter and as previously noted no other evidence was offered that she performed any other activity in connection with her IPE in week 12 of the qualifying period for the eighth quarter. Further, the claimant presented no evidence of any other active efforts during week 12 to meet the work search requirements of Rule 130.102(d)(1). Accordingly, the hearing officer’s decision is reversed.

Rule 130.102(d)(2) provides that an injured employee who has not met at least one of the work search requirements in any week during the qualifying period is not entitled to SIBs unless the injured employee can demonstrate that he or she had reasonable grounds for failing to comply with the work search requirements under this section. Although the hearing officer did not make a specific written finding regarding whether the claimant had reasonable grounds under the evidence presented for failing to comply with work search requirements in week 12 of the qualifying period for the eighth quarter in his decision and order, he discussed this issue on the record. The hearing officer stated on the record that in his opinion the claimant did not present evidence of reasonable grounds for failing to search for work in week 12 if it is determined that the claimant had to perform an activity in week 12 since she was not attending classes or performing any other activity under the provisions of the IPE. The preamble states that Rule 130.102(d)(2) was added to confirm that hearing officers would continue to retain discretion in determining if an injured employee had demonstrated reasonable grounds for failure to meet at least one of the work search requirements in this section during any week during the qualifying period. (34 Tex. Reg. 2140, 2009). There is sufficient evidence to support the hearing officer’s stated finding on the record at the CCH that the claimant did not have reasonable grounds for failing to comply with work search requirements in week 12 of the qualifying period for the eighth quarter. We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the eighth quarter and render a new determination that the claimant is not entitled to SIBs for the eighth quarter.

PERMANENT LOSS OF SIBS ENTITLEMENT

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

SUMMARY

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

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

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 28, 2004. The hearing officer determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the first, second, third, fourth, and fifth quarters and that the claimant has permanently lost entitlement to SIBs pursuant to Section 408.146(c) of the 1989 Act because she was not entitled to them for 12 consecutive months. The claimant appeals the determinations on sufficiency of the evidence grounds. The respondent (carrier) urges affirmance.

DECISION

Affirmed.

The hearing officer did not err in determining that the claimant is not entitled to first, second, third, fourth, and fifth quarter SIBs. Section 408.142 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102) establish the requirements for entitlement to SIBs. At issue was whether the claimant made a good faith job search commensurate with her ability to work and whether her underemployment was a direct result of the impairment from the compensable injury. It was for the hearing officer, as the trier of fact, to resolve the conflicts and inconsistencies in the evidence and to determine what facts had been established.Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The evidence showed that the claimant sustained a compensable injury on ______________, while working for a firm which sold accessories to furniture makers. She fell off a ladder and hurt her back, knee, and shoulder. She earned about $35,000 per year at the time of her injury. In May 2000, the claimant went to work for a different firm where she earned about $45,000 per year. She worked there until November 2001 when she decided to become self-employed. At some point, the claimant received an impairment rating of 15%. The claimant testified that she was working without restrictions by May 2000 when she changed employers. Nevertheless, the claimant testified that she continued to experience pain and at times only worked part time. She stated that she had problems standing for very long or walking for very long. She testified that she started her own business in February 2002 so she could work at her own pace. Her business has not been profitable. The hearing officer found that the claimant’s underemployment during the qualifying periods was not the direct result of her impairment. He points out that she had demonstrated an ability to earn even more than she did at the time she was injured and that she had made a business decision to start her own company. In effect, she self-limited her income by her decision to pursue self-employment. For similar reasons, the hearing officer found that the claimant did not attempt in good faith to obtain employment commensurate with her ability to work. In view of the applicable law and the evidence presented, we cannot conclude that the hearing officer’s determination 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).

The hearing officer’s decision and order are affirmed.

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

HOWARD ORLA DUGGER

1720 NORTH COLLINS BOULEVARD, SUITE 200

RICHARDSON, TEXAS 75080.

Thomas A. Knapp

CONCUR:

Gary L. Kilgore
Appeals Judge

Edward Vilano
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 May 5, 2004. The hearing officer determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the fifth and sixth quarters, and that she has permanently lost entitlement to SIBs pursuant to Section 408.146(c) because she was not entitled to SIBs for 12 consecutive months. The claimant appealed and the respondent (carrier) responded, urging affirmance.

DECISION

A timely appeal not having been filed, the decision and order of the hearing officer have become final pursuant to Section 410.169.

Pursuant to Section 410.202(a), a written request for appeal must be filed within 15 days of the date of receipt of the hearing officer’s decision. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays, Sundays, and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal. Section 410.202(d). Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § Rule 143.3(c) (Rule 143.3(c)) provides that an appeal is presumed to have been timely filed if it is mailed not later than the 15th day after the date of receipt of the hearing officer’s decision and received by the Texas Workers' Compensation Commission (Commission) not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(c) must be satisfied in order for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 002806, decided January 17, 2001.

Records of the Commission indicated that the hearing officer’s decision was mailed to the claimant on May 19, 2004, at the address supplied by the claimant. Pursuant to Rule 102.5(d) the claimant was deemed to have received the hearing officer’s decision five days later, or on Monday, May 24, 2004.

With the deemed date of receipt of May 24, 2004, in accordance with amended Section 410.202, the appeal needed to be filed or mailed no later than June 15, 2004. The claimant’s appeal was metered on June 16, 2004, post marked June 17, 2004, and received by the Commission on June 21, 2004, and thus is untimely having been filed after June 15, 2004.

The claimant’s appeal being untimely, the decision and order of the hearing officer have become final pursuant to Section 410.169.

The true corporate name of the insurance carrier is FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INC. and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701.

Daniel R. Barry
Appeals Judge

CONCUR:

Chris Cowan
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 April 19, 2004. The hearing officer determined that: (1) the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the seventh quarter; (2) the claimant’s weekly earnings during the seventh quarter qualifying period cannot be determined; and (3) the claimant has permanently lost entitlement to SIBs pursuant to Section 408.146(c), because he was not entitled to SIBs for a period of four consecutive quarters. The claimant appeals these determinations on sufficiency of the evidence grounds. The respondent (carrier) urges affirmance.

DECISION

Affirmed.

SEVENTH QUARTER SIBS

The hearing officer did not err in determining that the claimant is not entitled to seventh quarter SIBs. Section 408.142 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102) establish the requirements for entitlement to SIBs. At issue was whether the claimant made a good faith job search commensurate with his ability to work and whether the claimant earned less than 80% of his average weekly wage (AWW) as a direct result of the impairment from the compensable injury. It was for the hearing officer, as the trier of fact, to resolve the conflicts and inconsistencies in the evidence, and to determine what facts had been established. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). While the hearing officer found that the claimant made an appropriate job search each week of the qualifying period, the hearing officer essentially determined that the evidence failed to establish that the claimant earned less than 80% of his AWW as a direct result of the impairment from the compensable injury. In view of the evidence presented, we cannot conclude that the hearing officer’s determination 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).

PERMANENT LOSS OF ENTITLEMENT

The evidence shows that the claimant was determined not entitled to fourth quarter SIBs and that determination was affirmed in Texas Workers’ Compensation Commission Appeal No. 031466, decided July 23, 2003. The claimant submitted an Application for [SIBs] (TWCC-52) for the fifth quarter on May 19, 2003. The carrier issued a determination of nonentitlement, pursuant to Rule 130.104(a), and requested a benefit review conference on May 22, 2003. The record reflects that the claimant elected not to pursue the matter further to a CCH. With regard to the sixth quarter, the claimant was determined not entitled to SIBs and that determination was affirmed in Texas Workers’ Compensation Commission Appeal No. 033238, decided February 5, 2004. The hearing officer considered the evidence and stated:

It therefore cannot be said that the claimant did not pursue fifth quarter benefits; the best that can be said is that he did not pursue a dispute of the carrier’s determination of non-entitlement. It might also be noted that the application for the fifth quarter as submitted here does not, on its face, show entitlement, as it contains job search documentation (indicating a concession of some ability to work) but no documentation of such searches for every week of the [fifth] quarter qualifying period.

The hearing officer found that the claimant was not entitled to four consecutive quarters of SIBs, including the fourth, fifth, sixth, and seventh quarters, and permanently lost entitlement to SIBs.

The hearing officer did not err in determining that the claimant has permanently lost entitlement to SIBs. Section 408.146(c) provides that an employee who is not entitled to SIBs for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury. Rule 130.106(a) similarly provides than an injured employee who is not entitled to SIBs for a period of four consecutive quarters permanently loses entitlement to such benefits. The evidence is clear that the claimant was not entitled to fourth and sixth quarter SIBs. Additionally, under the facts of this case, the carrier’s determination of nonentitlement to fifth quarter SIBs is sufficient to establish nonentitlement for that quarter for purposes of Section 408.146(c) and Rule 130.106(a). Compare Texas Workers’ Compensation Commission Appeal No. 981429, decided July 30, 1998 and cases cited therein (deciding that the claimant did not permanently lose entitlement to SIBs where he applied and was denied benefits for only two of the four quarters at issue). In view of the evidence and our decision above, we affirm the hearing officer’s determination that the claimant has permanently lost entitlement to SIBs. Cain, supra.

OTHER MATTERS

The claimant contends that the hearing officer spent 15 minutes alone in the hearing room with the carrier’s attorney prior to convening the CCH and that he otherwise demonstrated bias in reaching his decision in this case. In its response, the carrier states:

I sat in the hearing room, by myself, until the claimant, the ombudsman and the hearing officer came into the hearing room and the hearing began. Therefore, the hearing officer and I did not sit in the hearing room for 15 minutes by ourselves and we had no conversation during that time.

We note that the claimant did not raise an objection concerning the alleged ex parte communication at the hearing. Additionally, we find no support in the record for the claimant’s contention that the hearing officer was motivated by or in any way demonstrated bias in favor of the carrier. Accordingly, we find no basis to reverse the hearing officer’s decision.

The decision and order of the hearing officer is affirmed.

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

RUSS LARSEN

860 AIRPORT FREEWAY WEST, SUITE 500

HURST, TEXAS 75054-3286.

Edward Vilano

CONCUR:

Elaine M. Chaney
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 16, 2004. The hearing officer determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBs) for the first and second quarters; that the claimant was not entitled to SIBs for the third through eighth quarters (based on a different theory than the first two quarters); that the claimant has permanently lost entitlement to income benefits pursuant to Section 408.146(c); that good cause does not exist to relieve the claimant from the effects of a Benefit Dispute Agreement (TWCC-24); and that the claimant’s compensable injury of _____________, does not include a depressive disorder.

The claimant appeals, contending that he is entitled to SIBs because his treating chiropractor (and other doctors) had taken him off work, that he should be relieved of the effects of the TWCC-24 because he had been “tricked” by the respondent (carrier), and that his compensable injury should include a depressive disorder. The carrier responds, urging affirmance.

DECISION

Affirmed.

The parties stipulated that the claimant sustained a compensable left shoulder and neck injury on _____________. The hearing officer, in her Statement of the Evidence, lays out the timeline of treatment and events in some detail and that will not be repeated here.

Eligibility criteria for SIBs entitlement are set forth in Section 408.142(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102). The claimant asserts entitlement to SIBs for the first and second quarters on the basis of a return to work in a position relatively equal to his ability to work (see Rule 130.102(d)(1)). During the applicable qualifying periods the claimant had returned to work full time at a wage that exceeded his preinjury wage and thereby was not entitled to SIBs pursuant to Section 408.142(a)(2) and (b)(1) and Rule 130.102(b)(1).

During the third quarter qualifying period the claimant drew unemployment benefits but failed to document any job search efforts. See Rule 130.102)(d)(5) and (e). Basically the claimant asserts entitlement to SIBs for quarters three through eight on the basis of a total inability to work. Rule 130.102(d)(4) provides that an injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work. The hearing officer commented that during all of the qualifying periods at issue, the claimant did not produce narrative medical reports specifically explaining how the compensable injury causes a total inability to work which would satisfy the requirement of Rule 130.102(d)(4) and further that during the last two qualifying periods there were other records that showed that the claimant could work in some capacity. Conclusory off-work slips or Work Status Reports (TWCC-73) without further explanation do not provide the specific narrative required by Rule 130.102(d)(4).

The claimant asserts that he had good cause to be relieved of the effects of the TWCC-24 dated April 8, 2003, in which the parties agreed that the compensable injury includes cervical disc injuries at C5-6 and C6-7 but does not include a depressive disorder. The claimant had been diagnosed as having depression in November 2002;, that diagnosis had been disputed by the carrier and a Texas Workers' Compensation Commission (Commission)-required medical examination (RME) doctor in a report dated March 17, 2003, gave the opinion that the claimant’s depression was due more to his lifestyle than his work-related injury. The claimant contends that he should be relieved from the effects of the TWCC-24 because he was “tricked” by the carrier. Exactly how the claimant believes he was tricked is not clear other than the claimant apparently believed that he would be getting SIBs for the accepted cervical injury. The hearing officer’s determination regarding the TWCC-24 is supported by the evidence.

Regarding whether the compensable includes depression (aside from the TWCC-24), there was conflicting evidence. The hearing officer’s determination is supported by sufficient evidence in the form of the Commission’s RME doctor’s report.

We have reviewed the complained-of determinations and conclude that the hearing officer’s determinations are not 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).

We affirm the hearing officer’s decision and order.

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL

DALLAS, TEXAS 75201.

Thomas A. Knapp

CONCUR:

Chris Cowan
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 10, 2004. The hearing officer determined that appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the 11th through 15th quarters and that claimant has permanently lost entitlement to SIBs. Claimant appealed these determinations on sufficiency grounds and also contended that the hearing officer abused his discretion in failing to add an issue. Respondent (carrier) responded that the Appeals Panel should affirm the hearing officer’s decision and order.

DECISION

We affirm.

Claimant asserts that the hearing officer abused his discretion in failing to add an issue regarding carrier waiver of the right to dispute SIBs. Claimant raised this issue in a January 27, 2004, response to the benefit review conference (BRC) report. We find no abuse of discretion in the hearing officer's ruling that claimant did not show good cause. Ignorance of the law does not excuse the failure to raise an issue at the BRC. Texas Workers' Compensation Commission Appeal No. 94253, decided April 18, 1994. Texas Workers' Compensation Commission Appeal No. 032868-s, decided December 11, 2003, was decided before the January 13, 2004, BRC, and claimant could have raised this issue in any case. We perceive no abuse of discretion in the refusal to add the issue.

We have reviewed the complained-of determinations regarding SIBs entitlement and conclude that the issues involved fact questions for the hearing officer. The hearing officer reviewed the record and decided what facts were established. We conclude that the hearing officer’s determinations are supported by the record and are not 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).

We affirm the hearing officer’s decision and order.

According to information provided by carrier, the true corporate name of the insurance carrier is (a certified self-insured) 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.

Judy L. S. Barnes

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 was held on December 4, 2003. The hearing officer decided that: (1) the appellant/cross-respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the 1st through 12th quarters; and (2) the claimant permanently lost entitlement to SIBs, pursuant to Section 408.146(c). The claimant appeals these determinations on sufficiency of the evidence grounds. The claimant also raises several procedural points of error. The respondent/cross-appellant (carrier) urges affirmance, but filed a conditional cross-appeal of the hearing officer’s “direct result” determination. The claimant did not file a cross-response.

DECISION

Affirmed as reformed.

The hearing officer did not err in determining that the claimant is not entitled to 1st through 12th quarter SIBs. Section 408.142 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102) establish the requirements for entitlement to SIBs. At issue is whether the claimant had an ability to work and whether he returned to work commensurate with his ability to work. It was for the hearing officer, as the trier of fact, to resolve the conflicts and inconsistencies in the evidence and to determine what facts had been established. Garza v. Commercial Ins. Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The hearing officer considered the evidence and essentially found that the claimant failed to meet his burden of proof on these issues. In view of the applicable law and the evidence presented, we cannot conclude that the hearing officer’s determination 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).

With regard to the carrier’s cross-appeal, we have consistently held that an injured employee need only establish that the impairment from the compensable injury is a cause of his underemployment and that the “direct result” requirement is “sufficiently supported by evidence that an injured employee sustained a serious injury with lasting effects and could not reasonably perform the type of work being done at the time of the injury.” Texas Workers' Compensation Commission Appeal No. 960028, decided February 15, 1996. We decline to reconsider our prior holdings at this time. Applying this standard, the hearing officer’s “direct result” determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.

The hearing officer did not err in determining that the claimant permanently lost entitlement to SIBs. Section 408.146(c) provides that an employee who is not entitled to SIBs for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury. In view of our affirmance above, we likewise affirm the hearing officer’s determination that the claimant has permanently lost entitlement to SIBs, pursuant to Section 408.146(c).

In his appeal, the claimant complains that he received ineffective assistance from his ombudsman and that he was cut short by the hearing officer when making his closing argument. The claimant requests a rehearing, on this basis, and an opportunity to obtain an attorney. We note that the claimant was informed of his right to obtain an attorney at the hearing below but elected to proceed with the assistance of an ombudsman. We have said that ombudsmen are available only to assist a claimant and it is the claimant who remains responsible for the proper and adequate presentation of his case. The record does not reflect that the claimant was prevented from providing evidence or argument in support of his claim at the hearing below. Accordingly, we decline to reverse the hearing officer’s decision.

The claimant also complains that the “Order” paragraph in the hearing officer’s decision and order provides an incorrect date of injury. Consistent with the record evidence, we reform the hearing officer’s ordering paragraph to provide a date of injury of April 3, 1998.

The hearing officer’s decision and order is affirmed as reformed.

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

LEE F. MALO

12222 MERIT DRIVE, SUITE 700

DALLAS, TEXAS 75251.

Edward Vilano

CONCUR:

Gary L. Kilgore
Appeals Judge

Thomas A. Knapp
Appeals Judge