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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 29, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) is entitled to supplemental income benefits (SIBs) for the fifth quarter from April 9 through July 8, 2017; (2) the respondent (carrier) did not waive its right to contest the claimant’s entitlement to SIBs for the fifth quarter by failing to timely request a benefit review conference (BRC); and (3) the 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 for the entire fifth quarter.

The claimant appealed the ALJ’s determinations on carrier waiver and timely filing. The carrier responded, urging affirmance of the ALJ’s determinations. The ALJ’s determination that the claimant is entitled to SIBs for the fifth quarter from April 9 through July 8, 2017, has not been appealed and has become final pursuant to Section 410.169.

DECISION

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

The evidence reflects that the claimant sustained a compensable injury on (date of injury), resulting in a 26% impairment rating (IR).

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).

CLERICAL CORRECTIONS

On appeal the claimant states that the ALJ made errors in the written stipulations which “seem different than what the parties stipulated to at the CCH,” specifically Findings of Fact Nos. 1.B through 1.D and 1.G. We have reviewed the record and note that Findings of Fact No. 1.B. (employer) and 1.D (IR) conform to the stipulations made by the parties at the CCH; however, Finding of Fact Nos. 1.C (carrier) and 1.G. (work search) are incorrect.

In Finding of Fact No. 1, the ALJ states that the parties stipulated to the following facts:

1.C.On (date of injury),[1] [e]mployer provided workers’ compensation insurance with TPCIGA for Lumbermens Underwriting Alliance Carrier.

1.G.The [DWC-52] sent to [the] [c]laimant by TPCIGA on January 13, 2017 listed a minimum of 5 work search efforts for each quarter of the qualifying period of the fifth quarter.

A review of the record reveals that the parties’ stipulations were as follows:

1.C.On (date of injury), [e]mployer provided workers’ compensation insurance with Lumbermens Underwriting Alliance, an impaired carrier (emphasis added).

1.G.The [DWC-52] sent to [the] [c]laimant by TPCIGA on January 13, 2017, listed 5 minimum work search efforts for each week of the qualifying period for the fifth quarter (emphasis added).

We note that the ALJ listed TPCG for Lumbermens Underwriting Alliance as the true corporate name of the insurance carrier.  However, the carrier information sheet in evidence lists the carrier’s true corporate name as TPCIGA for Lumbermens Underwriting Alliance, An Impaired Carrier, Estate No. 852.

SIBS CARRIER WAIVER

The evidence reflects that a decision and order was mailed to the parties on June 8, 2017, in which the ALJ determined that the claimant was entitled to SIBs for the fourth quarter and that decision was not appealed. At the CCH the parties acknowledged that the carrier had paid the fourth quarter. The evidence reflects that the carrier received the claimant’s DWC-52 for the fifth quarter on June 12, 2018, more than a year after the Texas Department of Insurance, Division of Workers’ Compensation’s (Division) determination on the fourth quarter of SIBs. In evidence is the carrier’s notice of non-entitlement for the fifth quarter of SIBs dated June 19, 2018. Also, in evidence is a certified mail receipt addressed to the claimant with a notation stating, in part, “5th Q 52” and a date of delivery of June 25, 2018. There is no evidence the carrier filed a request for a BRC to dispute the claimant’s entitlement to SIBs for the fifth quarter.

Section 408.147(b) provides as follows:

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

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

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

Rule 130.108(d) provides as follows:

 

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

In this case, the prior quarter of SIBs was paid by the carrier at the time the carrier received the claimant’s DWC-52 for the subsequent quarter of SIBs and the carrier did not request a BRC to dispute entitlement to SIBs for the fifth quarter. Accordingly, we reverse the ALJ’s determination that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the fifth quarter by failing to timely request a BRC and we render a new decision that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fifth quarter by failing to timely request a BRC.

TIMELY FILING OF THE FIFTH QUARTER 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 applied in this case.

The evidence reflects that the claimant filed a DWC-52 for the fifth quarter on June 12, 2018. Although we rendered in this decision that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fifth quarter, the evidence established that the claimant did not file his DWC-52 for the fifth quarter until June 12, 2018; therefore, the claimant shall not receive the fifth quarter SIBs from April 9 through July 8, 2017. See Appeals Panel Decision 130837, decided May 20, 2013. Accordingly, 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 for the entire fifth quarter is supported by sufficient evidence and is affirmed.

SUMMARY

We reform Finding of Fact No.1 as follows:

1.C.On (date of injury), [e]mployer provided workers’ compensation insurance with Lumbermens Underwriting Alliance, an impaired carrier.

1.G.The [DWC-52] sent to [the] [c]laimant by TPCIGA on January 13, 2017, listed 5 minimum work search efforts for each week of the qualifying period for the fifth quarter.

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

We affirm 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 for the entire fifth quarter.

The true corporate name of the insurance carrier is TPCIGA FOR LUMBERMENS UNDERWRITING ALLIANCE, AN IMPAIRED CARRIER, ESTATE NO. 852 and the name and address of its registered agent for service of process is

MARVIN KELLY

9120 BURNET ROAD

AUSTIN, TEXAS 78758.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that at the CCH the ALJ referenced the date of injury as (date), rather than (date of injury); however, the ALJ’s written stipulation referring to the date of injury as (date of injury), is supported by the record and is correct.

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

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

DECISION

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

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

CLERICAL CORRECTIONS

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

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

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

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

EXTENT OF INJURY

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

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

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

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

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

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

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

Section 408.147(b) provides as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SUMMARY

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

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

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

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

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

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

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

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

COUNTY JUDGE GLEN WHITLEY

100 EAST WEATHERFORD STREET

FORT WORTH, TEXAS 76102.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 29, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the third quarter, November 24, 2016, through February 22, 2017; (2) the appellant (carrier) waived its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a benefit review conference (BRC); and (3) the Request to Schedule, Reschedule, or Cancel a [BRC] (DWC-45) received on November 28, 2016, did not meet the requirements of 28 TEX. ADMIN. CODE § 141.1(d) (Rule 141.1(d)), and good cause did not exist for failing to meet these requirements.

The carrier appealed all of the hearing officer’s determinations, contending that the hearing officer’s determinations are erroneous as a matter of law and not supported by the evidence. The appeal file did not contain a response from the claimant to the carrier’s appeal.

DECISION

Reformed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), which resulted in an impairment rating of 15% or greater; the claimant has not commuted any portion of the impairment income benefits; the period for the third quarter of SIBs has a beginning date of November 24, 2016, and an ending date of February 22, 2017; the qualifying period for the third quarter of SIBs was from August 12 through November 10, 2016; and the minimum number of job applications or work search contacts pursuant to Rule 130.102(f) required for the third quarter qualifying period is three per week for County, the claimant’s county of residence. The claimant testified he was injured when his hand went through the blade of a running table saw.

CLERICAL CORRECTIONS

The issues contained in the BRC Report and agreed to by the parties at the CCH were as follows:

  1. 1.Is the [c]laimant entitled to [SIBs] for the third quarter, November 24, 2016, through February 22, 2017?

  2. 2.Did the carrier waive its right to contest [the] claimant’s entitlement to [SIBs] for the third quarter by failing to timely request a [BRC]?

  3. 3.Did the [DWC-45] received on November 28, 2016, meet the requirements of [Rule 141.1(d)] for the purpose of scheduling a [BRC] and, if not, does good cause exist for failing to meet the requirements?

However, the issues listed in the Statement of the Case of the decision incorrectly identify the SIBs quarter in dispute as being the seventh quarter of SIBs, April 8 through July 7, 2016, for Issue 1, and carrier waiver of the right to contest entitlement for the seventh quarter for Issue 2. The decision also incorrectly omits Issue 3 in the Statement of the Case, although we note the hearing officer did dispose of that issue in her decision.

Accordingly, we reform the decision as follows to state the correct issues as reported out of the BRC and as agreed to by the parties:

Is the claimant entitled to SIBs for the third quarter, November 24, 2016, through February 22, 2017?

Did the carrier waive its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a BRC?

Did the DWC-45 received on November 28, 2016, meet the requirements of Rule 141.1(d) for the purpose of scheduling a BRC and, if not, does good cause exist for failing to meet the requirements?

The parties also stipulated at the CCH that during the qualifying period for the third quarter of SIBs the claimant did not work or earn wages. However, the decision omits this stipulation. We reform the decision to add the following to conform to the stipulation made by the parties at the CCH:

During the qualifying period for the third quarter of SIBs the claimant did not work or earn wages.

CARRIER’S NOVEMBER 28, 2016, DWC-45 AND RULE 141.1(d)

The hearing officer found that the Texas Department of Insurance, Division of Workers’ Compensation (Division) denied the carrier’s November 28, 2016, DWC-45 on November 30, 2016. The November 30, 2016, Commissioner Order denying the carrier’s request to schedule a BRC in evidence reflects that the carrier’s request was denied because “[t]he documentation of efforts to resolve the disputed issue(s) prior to requesting a [BRC] is insufficient to meet the requirements of [Rule 141.1(d)].” The hearing officer found that the carrier failed to comply with Rule 141.1(d) by not including supporting documentation of efforts to resolve the disputed issue, and that the evidence did not demonstrate good cause for the carrier’s failure to comply with the requirements set forth in Rule 141.1(d).

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

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

1.  identify and describe the disputed issue or issues;

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

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

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

The carrier’s November 28, 2016, DWC-45 reflected that the carrier documented attempts to resolve the disputed third quarter of SIBs because it noted that the claimant was required to make three job searches each week and that the carrier had requested a complete set of job searches during the qualifying period. The hearing officer’s finding that the carrier failed to comply with Rule 141.1(d) by not including supporting documentation of efforts to resolve the disputed issues is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the hearing officer’s determination that the November 28, 2016, DWC-45 did not meet the requirements of Rule 141.1(d), and there was no good cause for failing to meet the requirements, and we render a new decision that the November 28, 2016, DWC-45 did meet the requirements of Rule 141.1(d).

CARRIER WAIVER FOR FAILING TO TIMELY REQUEST BRC

The hearing officer determined that the claimant is entitled to SIBs for the third quarter in part because she determined that the carrier waived its right to contest the claimant’s entitlement to third quarter SIBs by failing to timely request a BRC. The hearing officer found that the carrier received the claimant’s Application for [SIBs] (DWC-52) on November 17, 2016, and filed its DWC-45 on November 28, 2016.

Section 408.147(b) provides as follows:

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

The carrier contends that it received the claimant’s DWC-52 on Friday, November 18, 2016, based upon the computation of time found in Rule 102.3. The carrier argued that while the claimant’s DWC-52, which states on the cover page that it contained 196 pages, was sent by facsimile transmission (fax) beginning at 4:20 p.m. on Thursday, November 17, 2016, the fax was not completed until 10:08 p.m.

Rule 102.3 provides in pertinent part the following:

(b) A working day is any day, Monday-Friday, other than a national holiday as defined by Texas Government Code, § 662.003(a) and the Friday after Thanksgiving Day, December 24th and December 26th. Use in this title of the term "day," rather than "working day" shall mean a calendar day.

(c) Normal business hours in the Texas workers' compensation system are 8:00 a.m. to 5:00 p.m. Central Standard Time with the exception of the Commission's El Paso field office whose normal business hours are 8:00 a.m. to 5:00 p.m. Mountain Standard Time.

(d) Any written or telephonic communications received other than during normal business hours on working days are considered received at the beginning of normal business hours on the next working day.

The carrier contends that because it did not receive the entire DWC-52, including the claimant’s documented job searches, until after working hours on November 17, 2016, the actual date of receipt should be the beginning of normal business hours on the next working day, which is November 18, 2016. Under the circumstances of this case we agree. The claimant’s theory of entitlement for third quarter SIBs was an active work search. The carrier would require all of the information relating to the claimant’s job searches during the qualifying period to conduct a review of that information to determine whether the claimant is entitled to third quarter SIBs. Accordingly, we reverse the hearing officer’s finding that the carrier received the claimant’s DWC-52 on November 17, 2016.

The evidence established that the carrier received the claimant’s DWC-52 for the third quarter of SIBs on November 18, 2016. The 10th day after November 18, 2016, is November 28, 2016. It was undisputed that the carrier filed its DWC-45 disputing the claimant’s entitlement to the third quarter of SIBs on November 28, 2016. Accordingly, we reverse the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to third quarter SIBs by failing to timely request a BRC, and we render a new decision that the carrier did not waive its right to contest the claimant’s entitlement to third quarter SIBs.

WORK SEARCH CONTACTS

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

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

The claimant testified he searched for jobs through an online company, Monster.com, and provided copies of email confirmations he received from that company in response to jobs for which he applied. The hearing officer stated in the Discussion that “the claimant met the work search efforts requirement by making at least three job applications and/or work search contacts for each week” during the third quarter qualifying period. The hearing officer found in Finding of Fact No. 3 that the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period by performing active work search efforts documented by job applications and/or work search contacts. We note that the hearing officer incorrectly identified the disputed SIBs quarter as the seventh quarter rather than the correct third quarter. A review of all the records in evidence established that the claimant did not make three contacts during the third and seventh weeks of the third quarter qualifying period, August 26 through September 1, 2016, and September 23 through September 29, 2016, respectively. The claimant did not meet the requisite number of work searches during each week of the third quarter qualifying period. We therefore reverse the hearing officer’s finding that the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period by performing active work search efforts documented by job applications and/or work search contacts.

Because the carrier’s November 28, 2016, DWC-45, which met the requirements of Rule 141.1(d), was filed timely to dispute the third quarter of SIBs, and because the claimant did not meet the requisite number of work searches during each week of the third quarter qualifying period, we reverse the hearing officer’s determination that the claimant is entitled to third quarter SIBs, and we render a new decision that the claimant is not entitled to third quarter SIBs.

SUMMARY

We reform the decision as follows to state the correct issues as agreed to by the parties:

Is the claimant entitled to SIBs for the third quarter, November 24, 2016, through February 22, 2017?

Did the carrier waive its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a BRC?

Did the DWC-45 received on November 28, 2016, meet the requirements of Rule 141.1(d) for the purpose of scheduling a BRC and, if not, does good cause exist for failing to meet the requirements?

We reform the decision to add the following to conform to the stipulation made by the parties at the CCH:

During the qualifying period for the third quarter of SIBs the claimant did not work or earn wages.

We reverse the hearing officer’s determination that the November 28, 2016, DWC-45 did not meet the requirements of Rule 141.1(d), and there was no good cause for failing to meet the requirements, and we render a new decision that the November 28, 2016, DWC-45 did meet the requirements of Rule 141.1(d).

We reverse the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to third quarter SIBs by failing to timely request a BRC, and we render a new decision that the carrier did not waive its right to contest the claimant’s entitlement to third quarter SIBs.

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

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

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). An expedited contested case hearing (CCH) was held on January 2, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the 18th quarter, October 26, 2016, through January 24, 2017, because the appellant (self-insured) waived the right to contest the claimant’s entitlement to SIBs for the 18th quarter and (2) the self-insured waived its right to contest SIBs eligibility for the 18th quarter under 28 TEX. ADMIN. CODE § 130.108(c) (Rule 130.108(c)).

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

DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SUMMARY

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

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

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

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

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

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

.

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

For service in person the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR  

STATE OFFICE OF RISK MANAGEMENT  

300 W. 15TH STREET  

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

AUSTIN, TEXAS 78701.

 

For service by mail the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR  

STATE OFFICE OF RISK MANAGEMENT  

P.O. BOX 13777  

AUSTIN, TEXAS 78711-3777.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 25, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the third quarter, March 9 through June 7, 2016; and (2) the respondent (carrier) did not waive its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a benefit review conference (BRC). We note that the hearing officer’s decision contains a typographical error regarding the address of the carrier’s registered agent for service of process.

The claimant appealed the hearing officer’s determination that he is not entitled to third quarter SIBs, contending the evidence does not support that determination. The carrier responded, urging affirmance. The hearing officer’s determination that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a BRC was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

The parties stipulated that the claimant sustained a compensable injury on (date of injury), with a 15% or greater impairment rating; the claimant has not commuted any portion of the impairment income benefits; the qualifying period for the third quarter of SIBs began on November 26, 2015, and ended on February 24, 2016; 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 third quarter qualifying period is three per week, for (County); and the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the third quarter by failing to timely request a BRC.

The record established that the claimant was injured while working as a grain supervisor when his foot was caught in an auger. The record established that the injury resulted in an above-knee amputation of the claimant’s left leg.

The hearing officer found in Finding of Fact No. 3.E. that:

[The] [c]laimant made only two job search efforts during the ninth week of the qualifying period, which began on Thursday, January 28, 2016, and ended on Wednesday, February 3, 2016.

However, given that the first week of the third quarter qualifying period began on November 26, 2015, and ended on December 2, 2015, the ninth week of the third quarter qualifying period actually began on Thursday, January 21, 2016, and ended on Wednesday, January 27, 2016. We reform Finding of Fact No. 3.E. to state the ninth week of the third qualifying period began on Thursday, January 21, 2016, and ended on Wednesday, January 27, 2016, to reflect the correct dates for the ninth week of the third quarter qualifying period.

The evidence established that the claimant made only two job searches during January 21 through January 27, 2016, which are the correct dates for the ninth week of the third quarter qualifying period. The hearing officer’s finding that the claimant made only two job search efforts during the ninth week of the qualifying period, as reformed above, is supported by sufficient evidence.

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

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

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

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

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).

We note that the evidence established the claimant worked from November 26, 2015, until he was laid off on January 4, 2016, at which point he began making work search contacts. The hearing officer found that the claimant was unemployed for at least a part of the qualifying period, and that the claimant did not demonstrate an active effort to obtain employment each week during the entire qualifying period. The hearing officer made no specific finding of fact regarding the dates of the weeks the claimant worked or whether the claimant returned to work in a position which is commensurate with the claimant’s ability to work. We note also that the claimant testified he has signed up with Department of Assistive and Rehabilitative Services (DARS); however, the claimant did not testify that he has a VRP, also known as an Individualized Plan for Employment (IPE), nor was an IPE for the claimant in evidence. The hearing officer’s decision regarding third quarter SIBs does not specifically address each week of the third quarter qualifying period. However, given Finding of Fact No. 3.E., as reformed, that the claimant made only two job search efforts during the ninth week of the third quarter qualifying period is supported by sufficient evidence, the claimant would not be entitled to third quarter SIBs regardless of what the hearing officer may have found for those other weeks of the third quarter qualifying period. Accordingly, we affirm the hearing officer’s determination that the claimant is not entitled to SIBs for the third quarter, March 9 through June 7, 2016.

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

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

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

The carrier appealed the hearing officer’s determination, contending that the hearing officer’s determination is unsupported by the evidence. The carrier alleged that the evidence established it timely filed a Request for a [BRC] (DWC-45) along with documentation reflecting its efforts to resolve the disputed SIBs issue with the claimant’s counsel, and therefore the denial by the Texas Department of Insurance, Division of Workers’ Compensation (Division) of the carrier’s DWC-45 was improper. The claimant responded, urging affirmance of the hearing officer’s determination.

DECISION

Reversed and remanded.

The parties stipulated in part that: the claimant sustained a compensable injury on [Date of Injury], which resulted in a final impairment of 19%; the claimant has not commuted any portion of the impairment income benefits; the 11th quarter of SIBs is from July 25 through October 23, 2014; the qualifying period for the 11th quarter of SIBs was from April 12 through July 11, 2014; and the minimum number of weekly work search contacts for the claimant’s county of residence is three. The claimant testified that she was injured when she slipped and fell on a wet floor.

The hearing officer found the following unappealed findings of fact:

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

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

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

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

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

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

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

Section 408.147(b) provides as follows:

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

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

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

1.  identify and describe the disputed issue or issues;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SUMMARY

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

REMAND INSTRUCTIONS

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

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

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

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

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

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 21, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [date of injury], extends to depression and anxiety; (2) the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the fourth quarter; and (3) the appellant (carrier) waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a benefit review conference (BRC).[1]

The carrier appeals the hearing officer’s determinations that: the compensable injury extends to depression and anxiety; the claimant is entitled to fourth quarter SIBs; and the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a BRC. The claimant responded, urging affirmance.

DECISION

Affirmed.

Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a)(1).  Section 410.204(a) provides in part that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1).  Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case:  (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but does not affect the outcome of the hearing.  This case is a situation that requires correction but does not affect the outcome of the hearing.

The parties stipulated that on [date of injury], the claimant sustained a compensable injury resulting in an impairment rating of 15% or greater; the qualifying period for the fourth quarter of SIBs was from August 1 through October 30, 2012; and that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed [Dr. H] as designated doctor for the purpose of extent of injury and return to work. The hearing officer noted in the Background Information portion of her decision that it was undisputed that the claimant sustained a compensable injury when he cut the index finger of his left hand as he was opening a zip tie.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury of [date of injury], extends to depression and anxiety is supported by sufficient evidence and is affirmed.

CARRIER WAIVER OF FOURTH QUARTER SIBS

The hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a BRC is supported by sufficient evidence and is affirmed.

FOURTH 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.  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 to SIBs for the fourth quarter is based on a total inability to work.  There is no evidence regarding work search efforts, return to work efforts, or involvement with vocational rehabilitation programs or the Texas Workforce Commission.  Rule 130.102(d)(1) provides in pertinent part that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the following work search requirements each week during the entire qualifying period:

* * * *

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

The claimant attached to his Application for [SIBs] (DWC-52) for the fourth quarter, a letter from [Ms. M], a family nurse practitioner, dated October 9, 2012, as the narrative report from a doctor which specifically explains how the compensable injury causes a total inability to work.  In that letter, Ms. M explained the claimant’s symptoms in detail and stated that due to chronic pain, depression, decreased concentration and inability to use his upper extremities, the claimant remains unable to work at any job at this time. The narrative was electronically signed by Ms. M only. The hearing officer correctly notes that this narrative is insufficient since the narrative is not co-signed by a physician. Rule 130.102(d)(1)(E) requires that the narrative report be from a doctor which specifically explains how the compensable injury causes a total inability to work.

Dr. H examined the claimant on November 19, 2012. Although appointed to give an opinion on the claimant’s ability to return to work during the qualifying period for the fourth quarter of SIBs, Dr. H failed to discuss this issue in his initial narrative. In a December 21, 2012, response to a letter of clarification, Dr. H stated: “[i]t is my opinion that [the claimant] was unable to work during the time period requested.” The hearing officer determined that the claimant is entitled to SIBs for the fourth quarter, finding the claimant had no ability to work. The hearing officer stated that the narrative from Ms. M provided additional support for Dr. H’s position. The Appeals Panel has held that reports from different doctors cannot be read together to create a narrative report.  The narrative report must come from one doctor.  Appeals Panel Decision (APD) 011152, decided July 16, 2001.  In APD 002724, decided January 5, 2001, we stated that in determining whether the requirements of Rule 130.102(d)(4) (now found in Rule 130.102(d)(1)(E)) for a doctor's narrative report are met, the following will be considered: amendments; supplements, including CCH testimony from the doctor; information incorporated in the report by reference; or information from a doctor's medical records in evidence that can be reasonably incorporated in the doctor's narrative report by inference based on some connection between the report and the information in the medical records. See also APD 033152, decided January 16, 2004. In the instant case, there was not a narrative from a doctor who specifically explained how the compensable injury caused a total inability to work. Accordingly, the hearing officer’s finding that the claimant had no ability to work is not supported by sufficient evidence.

However, as previously noted the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a BRC is affirmed. Therefore, the claimant is entitled to SIBs for the fourth quarter based on carrier waiver.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury of [date of injury], extends to depression and anxiety.

We affirm the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a BRC.

We affirm the hearing officer’s determination that the claimant is entitled to SIBs for the fourth quarter because the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

  1. We note that the decision in the “Issues” incorrectly identifies the third quarter as the quarter in dispute for the stated waiver issue. The issue litigated and determined by the hearing officer was whether the carrier waived its right to contest the claimant’s entitlement to SIBs for the fourth quarter by failing to timely request a BRC.

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 5, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the 9th through the 15th quarters from December 31, 2010, through September 27, 2012; (2) the respondent (carrier) is relieved of liability for SIBs because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for the 9th through the 14th quarters from December 31, 2010, through June 13, 2012; and (3) the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the 9th through the 15th quarters by failing to timely request a benefit review conference (BRC). The claimant appeals the hearing officer’s determinations.  The carrier responds, urging affirmance.

DECISION

 Affirmed in part and reversed and rendered in part.

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

CARRIER WAIVER

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

Section 408.147(b) provides as follows:

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

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

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

Rule 130.108(d) provides as follows:

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

In Appeals Panel Decision (APD) 051130-s, decided July 12, 2005, the Appeals Panel cited to APD 032868-s, decided December 11, 2003, which held that “when the issue of entitlement to the prior quarter of SIBs is ongoing and the claimant submits a [DWC-52] for the subsequent quarter, the carrier must timely request a BRC if it wishes to dispute the subsequent quarter, and failure to do so results in waiver as provided in Section 408.147(b).”  The Appeals Panel noted in APD 032868-s that “the proper approach, when the rule does not fit the factual situation is to return to the statutory provision in the 1989 Act-Section 408.147(b).”  In APD 080242, decided April 7, 2008, there was an ongoing dispute of the 3rd quarter of SIBs at the time the DWC-52 for the 4th quarter was received by the carrier. In that case, there was no evidence that the carrier requested a BRC on entitlement to the 4th quarter of SIBs or that the carrier asserted that it did request a BRC to contest the 4th quarter of SIBs. The Appeals Panel reversed the hearing officer’s determination that the carrier did not waive the right to contest entitlement to the 4th quarter of SIBs and rendered a new determination that the carrier did waive the right to contest entitlement to the 4th quarter of SIBs. Subsequent Appeals Panel decisions have cited APD 032868-s, for the proposition that where the immediately preceding quarter is “actively under dispute” at the time the carrier receives the DWC-52, the carrier must comply with the provisions of Section 408.147(b).  See APD 041362, decided July 27, 2004; APD 041726, decided September 2, 2004; and APD 070653, decided May 29, 2007.

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

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

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

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

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

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

Section 408.143(c) provides that failure to file a statement under that section relieves the insurance carrier of liability for SIBs for the period during which a statement is not filed. Rule 130.104(c) provides in part that except as otherwise provided in that section, a DWC-52 shall be filed no later than 7 days before, and no earlier than 20 days before, the beginning of the quarter for which the injured employee is applying for SIBs.    Rule 130.105(a) provides in part that:  an injured employee who does not timely file a DWC-52 with the insurance carrier shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the insurance carrier. The exceptions under Rule 130.105(a) do not apply to the facts of this case.

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

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

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

SUMMARY 

 We affirm the hearing officer’s determination that the claimant is not entitled to SIBs for the 10th through the 15th quarters of SIBs.

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

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

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

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

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

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

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 February 7, 2012, reconvened on April 3, 2012, June 13, 2012, with the record closing on August 21, 2012,[1] in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) as a result of a prior decision and order, the Texas Department of Insurance, Division of Workers’ Compensation (Division) does not have jurisdiction to determine the date of maximum medical improvement (MMI); (2) as a result of a prior Division determination, the respondent/cross-appellant’s (claimant) date of MMI is May 7, 2003; (3) the claimant is entitled to supplemental income benefits (SIBs) for the 5th through 23rd quarters by virtue of appellant/cross-respondent’s (carrier) waiver; (4) the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters; (5) the claimant is not entitled to lifetime income benefits (LIBs); (6) the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104; (7) the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding; (8) the carrier is not entitled to reduce/suspend temporary income benefits (TIBs) to offset Social Security payments; and (9) the carrier is not entitled to reduce/suspend impairment income benefits (IIBs) to offset Social Security payments.

The carrier appealed, disputing the hearing officer’s determinations that the claimant is entitled to SIBs for the 5th through 23rd quarters by virtue of carrier waiver and that the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters. The claimant responded, urging affirmance.

The claimant cross-appealed, disputing the hearing officer’s determinations that the claimant is not entitled to LIBs; that the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104; and that the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding. The carrier responded, urging affirmance of the determinations disputed by the claimant.

The hearing officer’s determinations that the carrier is not entitled to reduce/suspend TIBs to offset Social Security payments and that the carrier is not entitled to reduce/suspend IIBs to offset Social Security payments were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

It was undisputed that the claimant sustained a compensable injury. The claimant testified that he was injured on [date of injury], when he fell down a flight of stairs.

LIBs

The claimant contended that he is entitled to LIBs based on an aggravation of a personality disorder that resulted in an inability to obtain or retain employment. Section 408.161 specifies the criteria for which entitlement to LIBs can be established. The aggravation of a personality disorder is not one of the specified conditions for which LIBs is payable. The hearing officer’s determination that the claimant is not entitled to LIBs is supported by sufficient evidence and is affirmed.

EXTENSION OF STATUTORY MMI FOR SPINAL SURGERY

Section 408.104(a) provides in part, that on application by either the claimant or the carrier, the Commissioner may extend the 104-week period described by Section 401.011(30)(B) (date of statutory MMI) if the claimant had spinal surgery, or has been approved for spinal surgery under Section 408.026 and the Commissioner rules within 12 weeks before the expiration of the 104-week period. The parties stipulated that the date of statutory MMI is July 26, 2004. In evidence is a Request for Extension of [MMI] for Spinal Surgery (DWC-57), dated February 19, 2011, and date stamped as received by the Division on March 7, 2011. The DWC-57 requests an extension of statutory MMI based on a cervical spine surgery performed on February 2, 2005. The hearing officer’s determination that the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104 is supported by sufficient evidence and is affirmed.

REIMBURSEMENT FOR MEDICAL EXPENSES

The hearing officer’s determination that the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding is supported by sufficient evidence and is affirmed.

JURISDICTION TO DECIDE MMI

The disputed issue before the hearing officer regarding jurisdiction to determine the date of MMI was as follows: “As a result of the decision and order of the [CCH] and affirmation by [the] Appeals Panel in [Appeals Panel Decision (APD)] 080435 [decided May 27, 2008], does the Division have jurisdiction to determine the date of [MMI]?” Although not discussed specifically in its appeal, the carrier appealed Conclusion of Law No. 4, which was “[t]he Division does not have jurisdiction to determine the date of [MMI].” The carrier appealed Conclusion of Law No. 5, which was “[t]he date of [MMI] is May 7, 2003.”

In evidence was a decision and order dated February 23, 2008, which determined in part that the claimant’s date of MMI is May 7, 2003, and the claimant’s impairment rating (IR) is 21%. Division records indicate that the hearing officer’s decision was allowed to become final. See Section 410.205. Because a prior determination of MMI had been made, the hearing officer in the instant case determined that the Division does not have jurisdiction to determine the date of MMI. The hearing officer additionally made a conclusion of law recognizing the prior determination that the claimant’s MMI date is May 7, 2003. The hearing officer’s determinations that the Division does not have jurisdiction to determine the date of MMI and recognizing the prior determination that the date of the claimant’s MMI is May 7, 2003, is supported by sufficient evidence and is affirmed.

SIBS AND CARRIER WAIVER

In evidence was a Decision and Order dated September 14, 2006, which determined that the claimant is not entitled to SIBs for the 2nd, 3rd, and 4th quarters. At that CCH, the parties stipulated that the claimant’s IR is 15% or more but did not stipulate to the MMI date. The parties did stipulate to the qualifying periods and quarter dates for the SIBs quarters at issue. Division records indicate that decision was appealed to the Appeals Panel and the hearing officer’s decision and order was allowed to become final. The claimant sought judicial review on the determination of non-entitlement to SIBs for the 2nd, 3rd, and 4th quarters. In evidence is an Order granting the carrier’s motion for no-evidence summary judgment on the determination of non-entitlement to SIBs for the 2nd, 3rd, and 4th quarters. The claimant requested a motion for new trial but it was denied. The evidence indicates that the qualifying periods and quarter dates for the first 4 quarters of SIBs were based on a certification of a different MMI date and a 15% IR. In evidence is a Benefit Dispute Agreement (DWC-24) that states the parties agree the Division does not have jurisdiction to re-determine entitlement to SIBs for the 1st, 2nd, 3rd, and 4th quarters.

In evidence was a Decision and Order dated February 23, 2008, in which the following issues were in dispute: (1) Did the IR and date of MMI assigned by [Dr. L] on October 1, 2005, become final under 28 TEX. ADMIN. CODE § 130.102(g) (Rule 130.102(g))?; (2) What is the date of MMI?; and (3) What is the claimant’s IR? In that decision, it was determined that the IR and MMI assigned by Dr. L on October 1, 2005, did not become final under Rule 130.102(g); that the claimant’s date of MMI is May 7, 2003; and that the claimant’s IR is 21%. Division records indicate that decision was appealed to the Appeals Panel and the hearing officer’s decision and order was allowed to become final.

At issue in the instant case, was the claimant’s entitlement to SIBs for the 5th through 23rd quarters and whether the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters. The parties stipulated that 401 weeks expired for this claim on March 29, 2010.

There is evidence that the claimant filed two sets of Applications for [SIBs] (DWC-52) for the 5th through 11th quarters. There is some evidence in the record that the claimant filed the first set of SIBs applications for the 5th through 11th quarters for qualifying periods and quarter dates based on the earlier certification of a different date of MMI with a 15% IR, and that the carrier disputed entitlement to SIBs for those quarters. These applications are dated prior to the subsequent CCH held in 2008, which determined that the claimant reached MMI on May 7, 2003, with a 21% IR. However, there is insufficient evidence to establish the date the carrier received those applications. Some of the SIBs applications for the 5th through 11th quarters filed, which were based on the earlier certification of MMI and IR, contain a stamp of a date received but the stamp is illegible and it is not clear that the date receipt stamp is that of the carrier. The hearing officer failed to discuss and make findings on these SIBs applications. However, the claimant failed to provide evidence to establish the date the carrier received these SIBs applications. The claimant had the burden of proof on this issue. See APD 031326, decided July 8, 2003.

The claimant’s second set of DWC-52s for the 5th through 11th quarters was based on the MMI date of May 7, 2003, with a 21% IR. As previously noted, in the decision and order decided February 23, 2008, it was determined that the claimant’s date of MMI is May 7, 2003, with a 21% IR. In evidence are SIBs applications dated April 14, 2010, for the 5th through 23rd quarters based on the certification of MMI of May 7, 2003, with a 21% IR. The claimant testified that he filed all of these applications at the same time after the resolution in district court of the 2nd, 3rd, and 4th quarters of SIBs. The claimant argued that the carrier waived its right to contest entitlement to these quarters because it failed to timely request a benefit review conference (BRC) for these SIBs applications. The carrier argued that the claimant failed to timely file his applications for the 5th through 23rd quarters.

The hearing officer based her determination that the carrier waived the right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters on the carrier’s failure to deny the SIBs applications for the 5th through 23rd quarters dated April 14, 2010. The hearing officer noted that there was no evidence in the record to indicate that the claimant mailed these applications in April of 2010. In evidence are two United States Postal Service (USPS) Delivery Confirmation Receipts, one dated April 22, 2010, and one with an illegible date. A certified mail receipt dated May 13, 2011, is also in evidence but there is no evidence of delivery. None of the receipts from the USPS in evidence indicate what documents were being delivered or to whom the documents were delivered. We note that the dates of these postal receipts would not relate to the earlier filing of the SIBs applications detailed above. The hearing officer found that the carrier received the claimant’s applications for SIBs for the 5th through 23rd quarters in the claimant’s BRC exchange in May of 2010.

Section 408.143 provides:

  1. (a)After the [C]ommissioner’s initial determination of [SIBs], the employee must file a statement with the insurance carrier stating:

  2. (2)that the employee has earned less than 80 [%] of the employee’s average weekly wage as a direct result of the employee’s impairment;

  3. (3)the amount of wages the employee earned in the filing period provided by Subsection (b); and

  4. (4)that the employee has complied with the requirements adopted under Section 408.1415.

  5. (e)The statement required under this section must be filed quarterly on a form and in the manner provided by the commissioner. The commissioner may modify the filing period as appropriate to an individual case.

  6. (f)Failure to file a statement under this 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 this 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, unless the following apply:

(3)a finding of an [IR] of 15% or greater in an administrative or judicial proceeding when the previous [IR] was less than 15%.

The hearing officer states in her decision that: “Subsection (3) [of Rule 130.105] is an exception to the general rule that would normally apply when a person fails to timely file a [DWC-52]. Because [the] [c]laimant’s case falls within one of the exceptions, the consequences for failing to timely file do not apply to this case. [The] [c]laimant’s [DWC-52s] were timely.”

However, as previously noted a CCH was held in 2006, to determine the claimant’s entitlement to SIBs for the 2nd, 3rd, and 4th quarters. During that CCH the parties stipulated that the claimant’s IR is 15% or greater. There was no evidence that the “previous IR was less than 15%.” See Old Republic Insurance Company v. Rodriguez, 2004 Tex. App. LEXIS 3785 (Tex. App.-El Paso, April 29, 2004). Subsection (3) is not an exception that applies to the facts of this case and the hearing officer erred in its application to the facts of this case.

The parties stipulated that 401 weeks expired on March 29, 2010. Section 408.083 provides that an employee’s eligibility for TIBs, IIBs, and SIBs terminates on the expiration of 401 weeks after the date of injury.

The hearing officer specifically found that the carrier received the claimant’s DWC-52s for the 5th through 23rd quarters in the claimant’s BRC exchange in May of 2010. In evidence is a SIBs calculation sheet, which reflects that the dates of the SIBs quarters are based on the 21% IR with the May 7, 2003, MMI date. The SIBs calculation sheet identifies the 23rd quarter period as beginning January 14, 2010, and ending on April 14, 2010. Any day in May of 2010 would be later than 7 days before the beginning of the quarter for which the claimant was applying for SIBs. Accordingly, the claimant would not have timely filed DWC-52s for any of the quarters at issue.

For the reasons discussed above, we reverse the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters and render a new decision that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters.

The hearing officer’s findings that the claimant is not entitled to SIBs on the merits for the 5th through 23rd quarters are supported by sufficient evidence. The hearing officer’s determination that the claimant is entitled to SIBs for the 5th through 23rd quarters was premised on her determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the disputed quarters. Given that we have reversed the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the disputed quarters, we reverse the hearing officer’s determination that the claimant is entitled to SIBs for the 5th through 23rd quarters and render a new decision that the claimant is not entitled to SIBs for the 5th through 23rd quarters.

SUMMARY

We affirm the hearing officer’s determination that as a result of a prior decision and order, the Division does not have jurisdiction to determine the date of MMI.

We affirm the hearing officer’s determination that as a result of a prior Division determination, the claimant’s date of MMI is May 7, 2003.

We affirm the hearing officer’s determination that the claimant is not entitled to LIBs.

We affirm the hearing officer’s determination that the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104.

We affirm the hearing officer’s determination that the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding.

We reverse the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters and render a new decision that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters.

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the 5th through 23rd quarters by virtue of carrier waiver and render a new decision that the claimant is not entitled to SIBs for the 5th through 23rd quarters.

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

  1. The dates of May 4, 2012, and June 20, 2012, referenced as dates the CCH was reconvened in the hearing officer’s decision and order are incorrect.

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