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 commenced on February 8, 2005, and concluded on April 11, 2005. With regard to the issues before him the hearing officer determined that the appellant/cross-respondent (claimant) is not entitled to lifetime income benefits (LIBs) based on the total and permanent loss of use of the upper extremities, lower extremities, or one upper extremity and one lower extremity, that respondent 2 (Subsequent Injury Fund (SIF)) is not liable for LIBs pursuant to Section 408.162, that the claimant’s _________, compensable injury does extend to and include complex Regional Pain Disorder (CRPS or RSD) of the bilateral upper extremities and right lower extremity and that respondent/cross-appellant 1 (self-insured) waived the right to contest compensability of the CRPS of the bilateral upper extremities and right lower extremity.

The claimant appealed the LIBs determination summarizing the evidence in some detail and contending that the hearing officer erred in not correctly applying Section 408.161, the case of Travelers Insurance Company v Seabolt, 361 S.W.2d 204 (Tex. 1962), and the Appeals Panel decisions. The self-insured appealed the extent-of-injury issue, the carrier waiver issue and conditionally appealed the SIF issue if the Appeals Panel reversed the LIBs entitlement issue. The self-insured also responded to the claimant’s appeal urging affirmance on the LIBs issue. The self-insured responded to the claimant and self-insured’s appeals, urging affirmance. The file does not contain a response from the claimant.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant was employed as a deputy sheriff for the self-insured. The claimant has an extensive history of various injuries as set out by the hearing officer. The claimant testified how he was kicked in the left knee and sustained a dislocated knee cap on _________. In 1998 another hearing officer determined that the claimant sustained a compensable left knee injury on _________. That determination was affirmed in Texas Workers’ Compensation Commission Appeal No. 981814, decided September 17, 1998. A designated doctor found the claimant to be at maximum medical improvement (MMI) on September 22, 1999, with a 19% impairment rating (IR) which included a diagnosis of RSD and CRPS of the left lower extremity. The claimant testified that his right leg began bothering him in the “first part of 99.” The first medical documentation of “RSD type symptoms” spreading to both legs is in a February 2001 note from the claimant’s doctor, referencing “vein harnesting” in both legs in conjunction with a heart attack sometime in 2000.

ENTITLEMENT TO LIBS

Section 408.161 sets out the requirements for LIBs and provides LIBs for the loss of both feet at or above the ankle, loss of both hands at or above the wrist or the loss of one foot at or above the ankle and the loss of one hand at or above the wrist. The claimant’s appeal, after summarizing the evidence from his perspective, asserts that the hearing officer did not apply the legal standard for LIBs set out in Seabolt, supra. We disagree. The hearing officer not only saw and heard the evidence presented at the CCH, but also had the benefit of observing the claimant and his demeanor at the CCH. The hearing officer made five factual determinations to support his conclusion that the claimant did not meet the requirements for entitlement to LIBs. The hearing officer’s determination on this issue is supported by the evidence and is affirmed.

SIF NOT LIABLE FOR LIBS

In so far as this issue was contingently appealed and as we are affirming the hearing officer’s determination regarding the LIBs issue we also affirm the hearing officer’s determination that the SIF is not liable for LIBs.

EXTENT OF INJURY

There was conflicting medical evidence presented regarding this issue. Both the claimant’s treating doctor and a carrier peer review doctor testified at the CCH. The hearing officer, as the sole judge of the weight and credibility of the evidence could, and apparently did, accept the treating doctor’s reports and testimony on this issue. With conflicting evidence the hearing officer’s decision on this issue is supported by sufficient evidence and is affirmed.

CARRIER WAIVER

The hearing officer determined that the carrier waived the right to contest compensability of CRPS of the bilateral upper extremities and right lower extremity stating in his Background Information section:

Carrier filed a letter dated November 1, 2004, to dispute the extent of Claimant’s injury. Claimant’s Ex. 8 at 1. The evidence presented does not appear to indicate that Carrier disputed the claim or paid benefits within 7 days of the date of first written notice or within 60 days of the date of first written notice.

There was no evidence when the carrier received the first written notice of the present claimed injuries. Fairly clearly the carrier received notice of the left knee injury sometime in 1997 and the compensability of the left knee injury was resolved in Appeal No. 981814, supra. As indicated there was no specific evidence of a date when the carrier was given written notice of the claimed upper extremities and right lower extremity injuries. Such a date might have possibly been in February 2001.

The provisions of Section 409.021 in effect for compensable injuries that occurred before September 1, 2003, provides in pertinent part that for injuries occurring prior to September 1, 2003, an insurance carrier shall, not later than the 7th day after the receipt of written notice of an injury, begin the payment of benefits as required by the 1989 Act or notify the Texas Workers’ Compensation Commission and the employee in writing of its refusal to pay benefits. Prior to the March 13, 2000, change to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3), a carrier had 60 days to dispute the compensability of an injury or waived the right to do so. Based upon Appeals Panel decisions prior to March 13, 2000, every time the carrier was notified of a new diagnosis, condition, or claimed body part, the carrier had an additional 60 days from the date it received notice to dispute the diagnosis, condition, or body part, or it again waived. See Texas Workers’ Compensation Commission Appeal No. 980822, decided June 3, 1998; Texas Workers’ Compensation Commission Appeal No. 962415, decided January 9, 1997. In other words, prior to the adoption of Rule 124.3, the carrier would waive the extent of injury if it failed to dispute the additionally claimed diagnosis, condition, or body part within 60 days of receiving notice. When Rule 124.3 was changed effective March 13, 2000, it provided that the waiver provisions of Section 409.021 do not apply to issues of extent of injury.

Rule 124.3(e) provides that Section 409.021 and subsection (a) of Rule 124.3 do not apply to disputes of extent of injury. In TIG Premier Insurance Company v. Pemberton, 127 S.W.3d 270 (Tex. App.-Waco 2003, pet denied), the court stated that Section 409.021 pertains only to the “overall injury” and that Section 409.021(c)’s 60-day provision applies only to the carrier’s initial response to a notice that an employee has been injured.

In Texas Workers’ Compensation Commission Appeal No. 041738-s, decided September 8, 2004, the Appeals Panel considered the question of what is the nature of the injury that becomes compensable by virtue of carrier waiver and said that:

We hold that the injury that becomes compensable by virtue of waiver is not necessarily limited by the information listed on the first written notice of injury. Rather the nature of the injury will be defined by the information that could have been reasonably discovered in the carrier’s investigation prior to the expiration of the waiver period.

In Texas Workers’ Compensation Commission Appeal No. 042048-s, decided October 11, 2004, the Appeals Panel noted that “prior to deciding whether a case presents an issue of waiver or extent of injury, one must define what the original injury was.”

In this case the original injury was clearly the compensable left knee injury and the original waiver period would have been in 1997. There was no diagnosis or evidence of CRPS/RSD of the upper extremities or lower right leg during the waiver period. The additional CRPS/RSD injuries only arose at some later date, not documented prior to February 2001, or at the very earliest a spread to the right leg in June 2000, based on the treating doctor’s testimony. In any event, the additional CRPS/RSD injuries are clearly an extent-of-injury issue not subject to waiver under Rule 124.3(e). The hearing officer erred in finding that the carrier waived the right to contest compensability of CRPS of the bilateral upper extremities and right lower extremity.

We reverse that determination and render a new decision that the carrier did not waive the right to contest compensability on the extent of injury to the CRPS of the bilateral upper extremities and right lower extremity.

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

(NAME)

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Thomas A. Knapp

CONCUR:

Robert W. Potts
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal on remand 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 June 9, 2003. The hearing officer determined that respondent 2 (claimant) was entitled to lifetime income benefits (LIBs) based on the loss of sight in both eyes; that respondent 1 (Subsequent Injury Fund (SIF)) was liable for LIBs pursuant to Section 408.162, and that those benefits began to accrue on August 10, 1997; and that appellant (carrier) was entitled to reimbursement from the SIF for overpayment of supplemental income benefits (SIBs). The SIF appealed the hearing officer’s decision, contending that by not giving it an opportunity to show cause for its failure to appear at the hearing, it was not “afforded due process.” In Texas Workers’ Compensation Commission Appeal No. 031938, decided September 10, 2003, the Appeals Panel remanded the case to give the SIF an opportunity to show cause why it had failed to appear and for the hearing officer to take evidence on the merits of the case. On November 12, 2003, a hearing on remand was held. The hearing officer determined that the SIF had good cause for its failure to appear at the initial hearing; that the claimant is entitled to LIBs based on the total loss of sight in both eyes; that the SIF is liable for LIBs, which began to accrue on August 10, 1997; and that the carrier is not entitled to reimbursement from the SIF for the overpayment of SIBs^[1]. The carrier appeals the determinations that the SIF had good cause for failing to appear at the initial hearing and that the carrier is not entitled to reimbursement from the SIF for the overpayment of SIBs. The carrier additionally argues on appeal that the SIF is liable for reimbursing the carrier for the amount it paid in impairment income benefits (IIBs). The SIF responds, urging affirmance of the hearing officer’s decision. The appeal file does not contain a response from the claimant.

DECISION

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

The hearing officer notes in her decision on remand that despite the fact that the SIF was not listed as a party to the initial litigation, the Appeals Panel remanded the case to give the SIF an opportunity to show good cause for its failure to attend the initial hearing. The hearing officer implies that if a party is erroneously omitted from the style of a case, that person/entity should not be considered to be a party and should not be entitled to the rights that are afforded to parties. The disputed issues made it clear that the SIF was indeed a party to the case. The fact that it was erroneously omitted from the style of the case does not negate its party status or otherwise abrogate its rights. For this reason, it was necessary for the hearing officer to afford the SIF an opportunity to show cause for its failure to attend the initial hearing. See Texas Workers' Compensation Commission Appeal No. 960464, decided April 22, 1996.

At the hearing on remand, the SIF explained that it did not appear on June 9, 2003, because “the expenditure of resources was not found necessary to dispute the carrier’s request for determination of the amount of reimbursement if [sic] it could seek from the SIF.” The SIF went on to explain that it believed the hearing officer’s original decision was incorrect; “hence the need for us to request a remand and present evidence supporting our point of view.” The hearing officer noted that “[i]n light of the Appeals Panel’s clear intention that good cause be found for the SIF’s failure to attend the original hearing (in that they also remanded the hearing to ‘take evidence on the merits of the case’ and ‘further development of evidence and for consideration’ of the issues involving the SIF, good cause was found for the SIF’s failure to attend the original hearing. . . .” We fail to see how our attempt to ensure the preservation of the SIF's rights equates to a clear intention that the hearing officer find good cause for the SIF’s failure to appear. Clearly, had the SIF not responded to the opportunity to show cause, there would have been no need to take additional evidence on the merits of the case. However, once the SIF appeared at the hearing on remand, it was entitled to present evidence on the merits of its case irrespective of the determination made by the hearing officer on the good cause issue. Given the explanation provided by the SIF for its failure to appear and the hearing officer’s explanation for the basis of her good cause determination, we cannot agree that the SIF established good cause. Finding of Fact No. 4 is reversed and a new decision rendered that the SIF did not establish good cause for its failure to appear at the initial hearing on June 9, 2003.

On the merits of the case, the carrier argues that the hearing officer erred in determining that it is not entitled to reimbursement from the SIF for the carrier’s overpayment of SIBs and IIBs. The evidence reflects that the claimant sustained a compensable injury in 1995, which included loss of vision in her right eye. The claimant had previously lost the vision in her left eye, due to a viral infection. The claimant’s date of maximum medical improvement for the compensable injury was August 10, 1997, at which time she was assigned a 37% impairment rating (IR), which reflected impairment attributed to the compensable injury and did not include a rating for the loss of left eye vision. It is undisputed by the parties on appeal that the claimant is entitled to LIBs based on the total and permanent loss of sight in both eyes and that LIBs began to accrue on August 10, 1997. Based on the 37% IR, the carrier paid 111 weeks of IIBs. Upon the expiration of the IIBs period, the carrier initiated payment of SIBs. The carrier paid SIBs beginning November 2, 1999, and continuing through March 19, 2003, for a total in excess of $59,000. The carrier now seeks reimbursement for the amounts of IIBs and SIBs paid to the claimant, which it characterizes as “overpayment.”

We first address the carrier’s argument with respect to the IIBs paid. Section 408.162(a) provides that “the insurance carrier is liable for the payment of benefits for the subsequent injury only to the extent that the subsequent injury would have entitled the employee to benefits had the previous injury not existed” (emphasis added). The evidence reflects that the carrier paid 111 weeks of IIBs, based on the 37% IR. As the hearing officer correctly points out, the 37% IR was assigned to the claimant for the compensable injury only; it does not include a rating for the left eye vision loss. For this reason, the hearing officer concluded that even though the SIF is liable for LIBs as of August 10, 1997, as the IIBs in question were paid based on a rating assigned for the “subsequent” injury and the claimant would have been entitled to these IIBs even in the absence of the left eye vision loss, the carrier is not entitled to reimbursement from the SIF for these payments. We perceive no error in the hearing officer’s resolution of the issue of IIBs payments. However, although the hearing officer explained her rationale and decision with regard to the IIBs in the Statement of the Evidence, there are no findings of facts or conclusions of law made with respect to IIBs. The hearing officer’s decision is reformed to reflect that the carrier is not entitled to reimbursement from the SIF for the payment of IIBs made to the claimant.

We next turn to the issue of the carrier’s right to reimbursement from the SIF for the amount of SIBs paid to the claimant. The carrier asserts on appeal that had the previous injury not existed, the claimant would not have been entitled to SIBs and, therefore, the carrier is entitled to reimbursement from the SIF for the SIBs previously paid. The hearing officer explained that there was insufficient evidence to establish that the claimant would have been entitled to SIBs based solely on the compensable injury; however, she noted that the carrier did not dispute the claimant’s entitlement to SIBs and paid approximately $59,000 in benefits between November 1999 and March 2003. The hearing officer pointed out that there is no statutory provision allowing the carrier to obtain reimbursement from the SIF for SIBs payments that were not required to be made, and concluded that the carrier is not entitled to reimbursement from the SIF for the SIBs payments. We agree. If, as in the present case, the SIF is liable for LIBs, the carrier is not automatically liable for SIBs for the remainder of the 401-week period provided for in Section 408.083. Texas Workers’ Compensation Commission Appeal No. 030330-s, decided April 2, 2003. However, after the carrier determined that the claimant was entitled to SIBs and paid the benefits, it could no longer contest the entitlement for the SIBs quarters paid. See Texas Workers’ Compensation Commission Appeal No. 032868-s, decided December 11, 2003. There being insufficient evidence to establish that the claimant would not have been entitled to SIBs had the prior left eye injury not existed, the carrier is not entitled to reimbursement for the SIBs paid to the claimant.

The hearing officer’s good cause determination is reversed and a new decision rendered that the SIF did not have good cause for its failure to appear at the initial hearing on June 9, 2003. The remainder of the hearing officer’s decision and order are affirmed as reformed.

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

CORPORATION SERVICE COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Chris Cowan

CONCUR:

Elaine M. Chaney
Appeals Judge

Thomas A. Knapp
Appeals Judge

1. At both the initial hearing and the hearing on remand this issue was, generally, whether the SIF is liable for reimbursement to the carrier for the amount of income benefits it overpaid the claimant. The issue was not limited to the overpayment of only SIBs.

   ↑

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 June 9, 2003. The hearing officer determined that respondent 1 (claimant) is entitled to lifetime income benefits (LIBs) based on the loss of sight in both eyes; that the appellant (Subsequent Injury Fund (SIF)) is liable for LIBs pursuant to Section 408.162 and those benefits began to accrue on August 10, 1997; and that respondent 2 (carrier) is entitled to reimbursement from the SIF for overpayment of supplemental income benefits. With the exception of the determination that the claimant is entitled to LIBs, the SIF appeals the hearing officer’s decision and contends that by not giving it an opportunity to show cause for its failure to appear at the hearing, it was not “afforded due process.” The SIF does not allege that it did not receive notice of the hearing. The claimant and the carrier responded to the SIF’s appeal.

DECISION

Reversed and remanded.

The record reflects that although the SIF is not listed in the heading of the case as a party, it was notified of the time and date of the hearing, but a representative from the SIF did not appear at the hearing. The hearing officer closed the hearing on the date it was convened and did not send a “show cause” letter to the SIF. The hearing officer did not make a finding regarding good cause for the failure of the SIF to attend the hearing. Texas Workers' Compensation Commission Appeal No. 962387, decided January 14, 1997, indicates that "after a single failure to appear," the hearing officer does not have authority to preclude the nonattending party from presenting evidence. See Texas Workers' Compensation Commission Appeal No. 960464, decided April 22, 1996, which referred to a process in which a party was given 10 days to request an opportunity to show cause; the Appeals Panel in that case commented that another procedure would be for the hearing officer to "affirmatively set" a hearing date, with written notice to both parties, at which time cause could be considered and, regardless of the outcome concerning cause, evidence on the merits could be presented. Also see Texas Workers' Compensation Commission Appeal No. 970121, decided March 4, 1997, which applied the "single failure to appear" criterion in remanding for another hearing. That case held that another hearing should be set at which time either party may present evidence, regardless of whether the evidence relating to good cause is found to be credible by the hearing officer.

There is no evidence that a “show cause letter” was sent to the SIF in this case or that another hearing was scheduled. We find our decisions in Appeal Nos. 960464 and 970121 to be controlling under the circumstances presented in the instant case, which does not involve repeated failures to appear at a scheduled hearing. In accordance with our precedent, the hearing officer should schedule another hearing, order the SIF to attend, afford the SIF the opportunity to show good cause for not attending the prior hearing, and take evidence on the merits of the case. In addition to remanding the case for consideration and development of the evidence on the matter of good cause for failure to attend the hearing, we remand for further development of the evidence and for consideration of the following disputed issues: (1) whether the SIF is liable for LIBs and, if so, on what date should payment of those benefits have begun; and (2) if the SIF is liable for LIBs, is the SIF liable to reimburse the carrier for the amount of income benefits that the carrier overpaid the claimant for which the SIF was liable? Texas Workers’ Compensation Commission Appeal No. 030330-s, decided April 2, 2003, may be instructive in the resolution of the disputed issues on remand. As the SIF does not dispute that the claimant is entitled to LIBs based on the loss of sight in both eyes and the carrier did not appeal, the hearing officer need not consider that issue 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 hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission's Division of Hearings, 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 Texas Workers' Compensation Commission Appeal No. 92642, decided January 20, 1993.

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

CORPORATION SERVICE COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Chris Cowan

CONCUR:

Elaine M. Chaney
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On December 3, 2002, a contested case hearing (CCH) was held. In Texas Workers’ Compensation Commission Appeal No. 030330-s, decided April 2, 2003, the Appeals Panel reversed the hearing officer’s decision that the appellant (claimant) is entitled to supplemental income benefits (SIBs) for the seventh quarter; that the claimant is entitled to lifetime income benefits (LIBs); and that the Subsequent Injury Fund (SIF) is liable for LIBs, and remanded the case to the hearing officer to admit Dr. R report into evidence and to consider that report on the issues of SIBs and LIBs entitlement. A CCH on remand was held on May 15, 2003. In the decision on remand, the hearing officer decided that the claimant is not entitled to SIBs for the seventh quarter, that the claimant is entitled to LIBs, and that the SIF is liable for LIBs pursuant to Section 408.162. The claimant appeals the hearing officer’s determination that he is not entitled to SIBs for the seventh quarter, contending that that determination is not supported by the evidence and is against the great weight and preponderance of the evidence, and reurging his objection to the admission of Dr. R’s report. Respondent 1 (carrier) responds, requesting affirmance of the hearing officer’s determination that the claimant is not entitled to SIBs for the seventh quarter. No response was received from Respondent 2 (SIF). There is no appeal of the hearing officer’s determinations in his decision on remand that the claimant is entitled to LIBs and that the SIF is liable for LIBs pursuant to Section 408.162, and thus those determinations have become final under Section 410.169.

DECISION

Affirmed.

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 SIBs criterion in issue is whether the claimant made a good faith effort to obtain employment commensurate with his ability to work during the qualifying period for the seventh quarter. The claimant claimed he had no ability to work during the qualifying period for the seventh quarter as a result of his compensable injury. The hearing officer determined that the claimant did not meet the requirements of Rule 130.102(d)(4) because a record showed that the claimant had some ability to work. The hearing officer found that the claimant had some limited ability to work during the qualifying period for the seventh quarter and that the claimant did not make a good faith effort to find employment commensurate with his ability to work during the qualifying period for the seventh quarter.

The claimant contends that the hearing officer’s decision is not supported by the evidence and is against the great weight and preponderance of the evidence. Although there is conflicting evidence in this case, we conclude that the hearing officer’s decision that the claimant is not entitled to SIBs for the seventh quarter is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We note that there is no indication in the hearing officer’s decision that he gave presumptive weight to Dr. R’s report, and that the hearing officer’s decision reflects that he considered Dr. R’s report as another medical report. In addition to Dr. R’s report, there is a functional capacity evaluation report in evidence that supports the hearing officer’s decision. We decline to reconsider our decision in Appeal No. 030330-s, supra regarding the admissibility of Dr. R’s report.

The hearing officer’s decision and order on remand are affirmed.

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

MR. RUSSELL R. OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701.

Robert W. Potts

CONCUR:

Chris Cowan
Appeals Judge

Michael B. McShane

Appeals Panel

Manager/Judge

A contested case hearing (CCH) was held on January 7, 1999, with the record closing on January 11, 1999, pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), (hearing officer) presiding as hearing officer, to consider the following disputed issues:

(1)Is the appellant Subsequent Injury Fund (SIF) liable for lifetime income benefits (LIBS) under Section 408.162 of the 1989 Act and, if so, on what date should payment of those benefits have begun; and

(2)If the SIF is liable for LIBS to respondent (claimant), is the SIF liable to reimburse (carrier) for the amount of income benefits the carrier overpaid the claimant for which the SIF was liable.

After making certain findings of fact, three of which are appealed, the hearing officer concluded that beginning (day after date of subsequent injury), the SIF was liable to the claimant for the remainder of LIBS after subtracting the amount of temporary income benefits (TIBS) and impairment income benefits (IIBS) paid to the claimant by the carrier, and that since the SIF was liable to the claimant for LIBS, the SIF is liable to reimburse the carrier for the amount of income benefits the carrier overpaid the claimant for which the SIF was liable.

The SIF requests our review, challenging the hearing officer's conclusions and several factual findings. The SIF asserts, in essence, that the hearing officer's resolution of the two disputed issues are erroneous because, based on the applicable statutory provisions of the 1989 Act concerning LIBS and the implementing Texas Workers' Compensation Commission (Commission) rule, the carrier should first pay weekly income benefits to the claimant, be they temporary income benefits (TIBS), impairment income benefits (IIBS), supplemental income benefits (SIBS), or LIBS, for 401 weeks before the SIF becomes obligated to commence payment of "the remainder" of LIBS. The SIF also contends that since it was not obligated to pay any LIBS prior to the expiration of the payment of weekly income benefits by the carrier for 401 weeks, it is thus not liable to the carrier for the reimbursement of overpayments of weekly benefits by the carrier. The carrier's response first asserted that the SIF's appeal was untimely and then urged the correctness of the hearing officer's determinations. The SIF filed a response asserting the timeliness of its appeal and reasserting the errors raised in its appeal.

DECISION

Affirmed.

The Commission's records indicate that the hearing officer's decision was distributed to the parties on January 27, 1999, under a cover letter of that date. The SIF's response acknowledges that the SIF received the hearing officer's decision and order on January 29, 1999. Pursuant to Section 410.202(a), the SIF had 15 days from that date to file its appeal or until February 13, 1999. However, since February 13th was a Saturday and Monday, February15th was a federal holiday (President's Day), the SIF had until Tuesday, February 16, 1999, to file its appeal. See Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 102.3(a)(3) (Rule 102.3(a)(3)). The SIF's appeal was filed on February 16, 1999, was, thus, timely.

We note at the outset that there did not appear to be any factual dispute involved in this case at the CCH or on appeal and that it involves the interpretation of certain provisions of the 1989 Act and Commission rules concerning LIBS.

Section 408.161(a)(1) provides that LIBS are paid until the death of the employee for total and permanent loss of sight in both eyes. Section 408.161(c) provides that, subject to Section 408.061, the amount of LIBS is equal to 75% of the employee's average weekly wage (AWW) and that benefits being paid shall be increased at a rate of three percent a year, notwithstanding Section 408.061.

Section 408.162, entitled "[SIF] Benefits," provides as follows:

(A)If a subsequent compensable injury, with the effect of a previous injury, results in a condition for which the injured employee is entitled to [LIBS], the insurance carrier is liable for the payment of benefits for the subsequent injury only to the extent that the subsequent injury would have entitled the employee to benefits had the previous injury not existed.

(B)The [SIF] shall compensate the employee for the remainder of the [LIBS] to which the employee is entitled. [Emphasis supplied.]

Rule 131.1(a) provides that LIBS begin to accrue as provided by the 1989 Act, '4.22 (now Section 408.082), and are payable retroactively from the date of disability (1) for losses described in the 1989 Act, '4.31(a)(2) through (4) (now Sections 408.161(a)(2) through (4)), or (2) for changing from TIBS to LIBS, when maximum medical improvement (MMI) is certified for losses described in the 1989 Act, ' 4.31(1), (5), or (6), or '4.31(b). Claimant's loss is described in '4.31(1) (now Section 408.161(a)(1)), namely, total and permanent loss of sight in both eyes.

Rule 131.2(a) provides that LIBS shall be calculated by multiplying the employee's AWW by .75 and that the LIBS payable each week under this formula shall not exceed the weekly minimum benefit under the 1989 Act, ' 4.11 (now Sections 408.047, 408.061) for the first year of benefits. Rule 131.2(b) provides for the annual three percent increase.

Rule 131.3 is entitled "Carrier's Petition for Payment of Benefits by [SIF]." Rule 131.3(a) provides that when an insurance carrier reasonably believes that an injured employee may be eligible for LIBS from the SIF, the insurance carrier shall petition the Commission for payment of LIBS from the SIF. Rule 131.3(b) provides that the Commission shall order the payment of LIBS from the SIF if it finds that the effects of the two injuries combined entitle the employee to LIBS. Rule 131.3(c) provides that the insurance carrier shall pay to the employee weekly benefits as ordered by the Commission. Rule 131.3(d) provides that the SIF shall compensate the employee "for the remaining [LIBS] for which the insurance carrier is not liable."

By way of background, our decision in Texas Workers' Compensation Commission Appeal No. 972705, decided February 12, 1998, which is in evidence, stated the parties' stipulations that on (date of first injury), the claimant was the employee of (employer 1), who had Workers' compensation insurance with another carrier; that on (date of first injury), the claimant sustained a compensable injury to his left eye that resulted in total and permanent loss of sight in the left eye; that on (date of subsequent injury), the claimant was the employee of (employer 2) who had Workers' compensation insurance with the carrier; that on (date of subsequent injury), the claimant sustained a subsequent compensable injury to his right eye that resulted in total and permanent loss of sight in the right eye; and that the claimant has total and permanent loss of sight in both eyes. Our decision affirmed the decision of the hearing officer in the November 20, 1997, CCH that the claimant is entitled to LIBS based on the permanent loss of both eyes. According to our decision, the carrier agreed with that determination but appealed the hearing officer's decision which ordered it to pay income and medical benefits in accordance with the decision, the 1989 Act, and the Commission's rules, contending that the hearing officer should have ordered the SIF to pay the claimant LIBS. We stated that the SIF responded that the hearing officer should have ordered the carrier and the SIF to pay the claimant LIBS. We noted that the only issue at that CCH was the claimant's entitlement to LIBS and that the hearing officer's decision in the claimant's favor on that issue was not appealed. We also stated that pursuant to Rule 131.3(a), the carrier has the responsibility to file a written petition with the Commission for payment of LIBS from the SIF; that no such written petition was in evidence; and that, after such petition is filed, the Commission may then order the payment of LIBS from the SIF under Rule 131.3(b), make a determination as to what weekly benefits the carrier is to pay to the claimant under Rule 131.3(c), and determine what "remaining" LIBS the SIF is to pay the claimant for which the carrier is not liable under Rule 131.3(d).

In addition to the two legal conclusions mentioned above, the SIF challenges findings that the claimant is entitled to be paid weekly income benefits equal to LIBS, with the three percent annual increase, from both the carrier and the SIF beginning on (day after date of subsequent injury) (we note this date is the day after the claimant's second injury); that since (day after date of subsequent injury), the SIF was obligated to pay the claimant a weekly amount that, when added to the amount of income benefits the carrier was obligated to pay, would total the amount of LIBS to which the claimant was entitled; and that the SIF owes the carrier for the amounts of income benefits that the carrier paid to the claimant since (day after date of subsequent injury), that were beyond the carrier's financial obligation of $261.82 per week to the claimant and were actually the financial obligations of the SIF to pay the claimant.

The SIF does not take specific issue with the dates the hearing officer determined concerning when the claimant's entitlement to LIBS commenced (day after date of subsequent injury), when the claimant reached statutory maximum medical improvement (July 21, 1994), and when the TIBS and IIBS were paid by the carrier, nor with the various dollar amounts determined by the hearing officer relating to the amounts of TIBS and IIBS paid by the carrier, nor with the amounts due the carrier from the SIF for reimbursement. Reduced to its essence, it is the SIF's position that it is not obliged to commence the payment of LIBS until after the expiration of 401 weeks and that the carrier is solely responsible for the payment of weekly income benefits, be they TIBS, IIBS, or SIBS, during the 401-week period. The carrier relies on the phrase "for the remainder of the [LIBS]" in Section 408.162 and the corresponding phrase in Rule 131.3(d), asserting that, had the legislature intended for the SIF to pay the entire amount of LIBS, it would not have used the word "remaining." We disagree with the SIF's contention in this matter and find its interpretation strained. Section 408.162(a) provides that "the insurance carrier is liable for the payment of benefits for the subsequent injury only to the extent that the subsequent injury would have entitled the employee to benefits had the previous injury not existed." "Remainder" is defined as the number left after a subtraction. Webster's Ninth New Collegiate Dictionary 996 (9th ed. 1983). It is clear that the carrier's liability is limited to benefits the claimant is entitled to had the previous injury not existed. The SIF is liable for the remainder, the number left after the amount of the benefits due the claimant for the subsequent injury is subtracted from the LIBS amount. We believe that the hearing officer correctly followed the LIBS statute and rule in determining that, from the date that the claimant's LIBS accrued, the SIF was liable for the amounts which exceeded the weekly benefits due from the carrier and remains so liable until no further weekly benefits are due from the carrier after which time the SIF is solely liable for the claimant's LIBS.

The decision and order of the hearing officer are affirmed.

Philip F. O'Neill
Appeals Judge

CONCUR:

Susan M. Kelley
Appeals Judge

Tommy W. Lueders
Appeals Judge