Timely Filing of SIBS App Archives

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

DECISION

Affirmed in part and reversed and rendered in part.

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

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

SIBS

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

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

PERMANENT LOSS OF ENTITLEMENT TO SIBS

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

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

TIMELY FILING OF SIBS APPLICATION

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

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

SUMMARY

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

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

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

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

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

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

Margaret L. Turner
Appeals Judge

CONCUR:
Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

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

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

DECISION

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

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

SIBS

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

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

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

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

TIMELY FILING OF SIBS APPLICATION

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

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

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

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

SUMMARY

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

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

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

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

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

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

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

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

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

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (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

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

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 was held on April 4, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the 16th quarter; (2) the appellant (carrier) is relieved from liability for the 16th quarter of SIBs, from September 6, 2017, through December 5, 2017, because the claimant failed to timely file her Application for [SIBs] (DWC-52) for the 16th quarter; and (3) the carrier is relieved from liability for the 17th quarter of SIBs, from December 6, 2017, through January 22, 2018, because the claimant failed to timely file her DWC-52 for the 17th quarter.

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

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

DECISION

Reformed in part and reversed and rendered in part.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury, which resulted in an impairment rating of 15% or greater; the claimant has not commuted any portion of the impairment income benefits; and the 17th quarter of SIBs ran from December 6, 2017, through January 22, 2018, with a corresponding qualifying period that ran from August 24, 2017, through November 22, 2017.

STIPULATION

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

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

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

SIBS

Eligibility criteria for SIBs entitlement are set forth in Section 408.142. Section 408.1415(a) states, in part, that the Texas Department of Insurance, Division of Workers’ Compensation commissioner by rule shall adopt compliance standards for SIBs recipients. Rules 130.100-130.109, effective July 1, 2009, govern the eligibility of SIBs. Rule 130.104(c) provides, in part, that the injured employee shall file the DWC-52 with the carrier no later than 7 days before, and no earlier than 20 days before, the beginning of the quarter for which the injured employee is applying for SIBs. Rule 130.105(a) provides, in part, that an injured employee who does not timely file a DWC-52 with the carrier shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the carrier.

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

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

SUMMARY

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

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

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

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (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:

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:

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 November 15, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The following issues were before the hearing officer:

(1)Did the impairment rating (IR) assigned by [Dr. B] on September 21, 2009, become final under 28 TEX. ADMIN. CODE § 130.102(h) (Rule 130.102(h))?
(2)What is the appellant’s (claimant) IR?
(3)Does the [date of injury], compensable injury include tendinosis of the left distal supraspinatus and infraspinatus tendons, left shoulder rotator cuff tear, SLAP tear left shoulder, aggravation of acromioclavicular arthritis, cervical radiculopathy, cervical protrusion at C5-6, aggravation of degenerative spondylolisthesis at L4-5, and depression?
(4)(As amended by the agreement of the parties) Is the claimant entitled to supplemental income benefits (SIBs) from the first quarter, August 15 through November 13, 2010; second quarter, November 14, 2010, through February 12, 2011; third quarter, February 13 through May 14, 2011; fourth quarter, May 15 through August 13, 2011; fifth quarter, August 14 through November 12, 2011; sixth quarter, November 13, 2011, through February 11, 2012; seventh quarter, February 12 through May 12, 2012; eighth quarter, May 13 through August 11, 2012; and ninth quarter, August 12 through November 10, 2012?
(5)Is the respondent (carrier) relieved of liability for SIBs because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for the second quarter, period November 14, 2010, through February 12, 2011; the third quarter, period February 13 through May 14, 2011; the fourth quarter, period May 15 through August 13, 2011; and the sixth quarter, period November 13, 2011, through February 11, 2012?
(6)Did the carrier waive its right to contest the claimant’s entitlement to SIBs for the fifth quarter, period August 14 through November 12, 2011; the seventh quarter, period February 12 through May 12, 2012; and the eighth quarter, period May 13 through August 11, 2012, by failing to timely request a benefit review conference (BRC)?

And added upon the agreement of the parties:

(1)What is the date of maximum medical improvement (MMI)?

The hearing officer resolved the disputed issues by deciding: (1) the certification of MMI and IR assigned by Dr. B on September 21, 2009, did not become final under Rule 130.102(h); (2) the claimant’s IR is 0%; (3) the compensable injury of [date of injury], does not include left shoulder rotator cuff tear, SLAP tear left shoulder, aggravation of acromioclavicular arthritis, cervical radiculopathy, cervical protrusion at C5-6, aggravation of degenerative spondylolisthesis at L4-5, and depression; (4) the compensable injury of [date of injury], does include tendinosis of the left distal supraspinatus and infraspinatus tendons; (5) quarters one through nine are not ripe for adjudication because the claimant’s IR is 0%; and (6) the claimant reached statutory MMI on May 9, 2009.

The claimant appealed the hearing officer’s finality under Rule 130.102(h), IR, extent-of-injury determinations adverse to him, and SIBs determinations. The claimant further contends that he timely filed a SIBs application for the first, second, third, fourth, and sixth quarters once he received the paperwork, and that the carrier waived the right to dispute the fifth, seventh, and eighth SIBs quarters by not timely filing a request for a BRC. We note that although the issue certified at the BRC and agreed to by the parties regarding the claimant’s timely filing of a DWC-52 listed the second, third, fourth, and sixth quarters of SIBs, the parties also litigated the first quarter of SIBs. We further note that the claimant did not appeal Finding of Fact No. 13, which states “[the] [c]arrier received [the] [c]laimant’s first, second, third, and fourth quarter applications on June 20, 2011.” The claimant also points out in his appeal that the hearing officer failed to comment on the carrier waiver of fifth, seventh, and eighth quarter SIBs. The carrier responded, urging affirmance.

The hearing officer’s determinations that the claimant reached statutory MMI on May 9, 2009, and that the compensable injury of [date of injury], does include tendinosis of the left distal supraspinatus and infraspinatus tendons were not appealed and have therefore become final pursuant to Section 410.169. We reform the hearing officer’s determination to clarify that the claimant reached MMI on May 9, 2009, the statutory date of MMI.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated that on [date of injury], the claimant sustained a compensable injury at least in the form of a head contusion with laceration, post-concussion syndrome, cervical sprain/strain, thoracic sprain/strain, lumbar sprain/strain, left shoulder strain, and left knee sprain.

We note that the decision and order also states that the parties stipulated to the following: “E. The [Texas Department of Insurance, Division of Workers’ Compensation (Division)]-selected designated doctor [Dr. B], M.D., certified that [the] [c]laimant reached [MMI] on May 9, 2009, and assigned a 22% [IR];” “F. [The] [c]arrier’s choice of doctor, [Dr. F], M.D., certified [the] [c]laimant reached [MMI] on May 9, 2009, and assigned a 0% [IR];” and “G. The compensable injury of [date of injury], extends to and includes tendinosis of the left distal supraspinatus and infraspinatus tendons.” However, the record reflects that the parties did not enter into these three stipulations.

FINALITY UNDER RULE 130.102(h) AND EXTENT OF INJURY

The hearing officer’s determinations that the certification of MMI and IR assigned by Dr. B on September 21, 2009, did not become final under Rule 130.102(h), and the compensable injury of [date of injury], does not include left shoulder rotator cuff tear, SLAP tear left shoulder, aggravation of acromioclavicular arthritis, cervical radiculopathy, cervical protrusion at C5-6, aggravation of degenerative spondylolisthesis at L4-5, and depression are supported by sufficient evidence and are therefore affirmed.

MMI AND IR

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.” Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Division shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. Rule 130.1(c)(3) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

The hearing officer determined that the claimant’s IR is 0% per Dr. F’s MMI/IR certification. Dr. F, the post-designated doctor required medical examination doctor, examined the claimant on September 15, 2009, to determine the claimant’s MMI and IR. Dr. F certified that the claimant reached clinical MMI on May 9, 2009, and in his narrative report dated September 15, 2009, assigned a 0% IR. We note that although Dr. F marked on the Report of Medical Evaluation (DWC-69) that he certified the claimant has permanent impairment as a result of the compensable injury, Dr. F neglected to either assign a 0% IR or state that the claimant has no impairment on the DWC-69. Dr. F’s narrative lists the following diagnoses: degenerative spondylolisthesis; status post-cervical sprain; status post-lumbar sprain; and adhesive capsulitis.

As previously discussed, the parties stipulated that the claimant sustained a compensable injury at least in the form of a head contusion with laceration; post-concussion syndrome; cervical sprain/strain; thoracic sprain/strain; lumbar sprain/strain; left shoulder strain; and left knee sprain. Additionally, some of the hearing officer’s extent-of-injury determinations have become final and the rest are supported by sufficient evidence and have been affirmed. Therefore, the conditions that have been agreed to or administratively determined to be part of the compensable injury are as follows: head contusion with laceration; post-concussion syndrome; cervical sprain/strain; thoracic sprain/strain; lumbar sprain/strain; left shoulder strain; left knee sprain; and tendinosis of the left distal supraspinatus and infraspinatus tendons.

Dr. F did not consider and rate all of the conditions that are part of the compensable injury. Specifically, Dr. F did not consider a head contusion with laceration; post-concussion syndrome; thoracic sprain/strain; left shoulder strain; left knee sprain; and tendinosis of the left distal supraspinatus and infraspinatus tendons. Additionally, Dr. F considered conditions not determined to be a part of the compensable injury, degenerative spondylolisthesis and adhesive capsulitis. We therefore reverse the hearing officer’s determination that the claimant’s IR is 0%. See Appeals Panel Decision (APD) 110463, decided June 13, 2011; and APD 101567, decided December 20, 2010.

There is only one other assignment of IR with a May 9, 2009, date of MMI, which is that of Dr. B, the designated doctor. Dr. B examined the claimant on September 21, 2009, to determine the claimant’s MMI and IR. On that date Dr. B certified that the claimant reached MMI on the statutory MMI date of May 9, 2009, and assigned a 22% IR. In assessing his 22% IR, Dr. B combined a 6% whole person (WP) impairment for the claimant’s left shoulder, with a 15% WP impairment under Diagnosis-Related Estimates Cervicothoracic Category III: Radiculopathy, which yielded a 20% WP impairment. Dr. B also assessed an additional 3% impairment for lack of treatment under page 2/9 of the Guides to the Evaluation of Permanent Impairment, fourth edition (first, second, third, or fourth printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. B combined the 20% with the 3% for 22% WP impairment.

In his narrative report dated September 21, 2009, Dr. B lists the following as compensable diagnoses: post-concussion syndrome; cervical protrusion and stenosis of C5-6; lumbar strain; left shoulder impingement; and scars, low back. Dr. B did not consider and rate all of the conditions that have been agreed to and administratively determined to be part of the compensable injury. Specifically, Dr. B did not consider head contusion with laceration; cervical sprain/strain; thoracic sprain/strain; left shoulder strain; left knee sprain; and tendinosis of the left distal supraspinatus and infraspinatus tendons. Additionally, Dr. B considered conditions not determined to be a part of the compensable injury: cervical protrusion and stenosis of C5-6; left shoulder impingement; and scars, low back. Accordingly, his 22% IR cannot be adopted. See APD 110267, decided April 19, 2011, and APD 043168, decided January 20, 2005.

We note that in a response to a letter of clarification dated January 15, 2010, Dr. B stated he received criticism for his use of the “effects of treatment” on page 2/9 of the AMA Guides. Dr. B further commented that:

. . . the 3% was assigned due to the fact that the [claimant] had an ongoing painful condition, for which he takes medications. Those medications have an effect on the [claimant’s] body that is not adequately calculated in the range of motion assessment. The oral anti-inflammatories cause harm to the kidneys and the narcotics can cause sedation. The 3% impairment is appropriate to calculate that impairment and is provided for by the [AMA Guides] on page [2/9].

The portion of the AMA Guides relied upon by Dr. B to assess 3% impairment for “lack of treatment” is not applicable in the claimant’s circumstances. There was no evidence that the claimant was taking medication which resulted in apparent total remission of his condition, nor any evidence establishing that the medications taken by the claimant have caused impairment. See APD 090692-s, decided July 14, 2009.

Since the hearing officer’s determination that the claimant’s IR is 0% has been reversed and there is no other IR in evidence that can be adopted, we remand the IR issue to the hearing officer for further action consistent with this decision.

SIBS

The hearing officer determined that SIBs for the first through ninth quarters are not ripe for adjudication because the claimant’s IR is 0%. Given our reversal of the hearing officer’s determination that the claimant’s IR is 0%, we reverse the hearing officer’s determination of SIBs for the first through ninth quarters are not ripe for adjudication because the claimant’s IR is 0%, and remand the issue of first through ninth quarter SIBs to the hearing officer to make a determination of SIBs entitlement upon a determination of the IR consistent with this decision.

Based on her determination that the disputed quarters of SIBs are not ripe for adjudication because the claimant’s IR is 0%, the hearing officer made no determination regarding whether the carrier is relieved from liability for the first, second, third, fourth, and sixth quarters of SIBs because of the claimant’s failure to timely file a DWC-52 for those quarters, and whether the carrier waived its right to contest the claimant’s entitlement to the fifth, seventh, and eighth quarters of SIBs by failing to timely request a BRC. We therefore reverse the hearing officer’s decision as being incomplete and remand the issues of whether the carrier is relieved from liability for the first, second, third, fourth, and sixth quarters of SIBs because of the claimant’s failure to timely file a DWC-52 for those quarters, and whether the carrier waived its right to contest the claimant’s entitlement to the fifth, seventh, and eighth quarters of SIBs by failing to timely request a BRC to the hearing officer to make a determination on these issues.

SUMMARY

We affirm the hearing officer’s determinations that the certification of MMI and IR assigned by Dr. B on September 21, 2009, did not become final under Rule 130.102(h); and that the compensable injury of [date of injury], does not include left shoulder rotator cuff tear, SLAP tear left shoulder, aggravation of acromioclavicular arthritis, cervical radiculopathy, cervical protrusion at C5-6, aggravation of degenerative spondylolisthesis at L4-5, and depression.

We reverse the hearing officer’s determination that the claimant’s IR is 0%, and we remand the issue of IR to the hearing officer to make a determination of IR consistent with this decision.

We reverse the hearing officer’s determination that SIBs quarters one through nine are not ripe for adjudication because the claimant’s IR is 0%, and we remand the issue of first through ninth quarter SIBs to the hearing officer to make a determination of SIBs entitlement consistent with this decision.

We reverse the hearing officer’s decision as being incomplete and remand the issues of whether the carrier is relieved from liability for the first, second, third, fourth, and sixth quarters of SIBs because of the claimant’s failure to timely file a DWC-52 for those quarters, and whether the carrier waived its right to contest the claimant’s entitlement to the fifth, seventh, and eighth quarters of SIBs by failing to timely request a BRC to the hearing officer to make a determination on these issues.

REMAND INSTRUCTIONS

Dr. B is the designated doctor in this case. On remand, the hearing officer is to determine whether Dr. B is still qualified and available to be the designated doctor. If Dr. B is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s IR for the [date of injury], compensable injury.

The hearing officer is to advise the designated doctor that the compensable injury of [date of injury], includes head contusion with laceration; post-concussion syndrome; cervical sprain/strain; thoracic sprain/strain; lumbar sprain/strain; left shoulder strain; and left knee sprain as agreed to by the parties, as well as tendinosis of the left distal supraspinatus and infraspinatus tendons as administratively determined. Further, the hearing officer is to advise the designated doctor that the [date of injury], compensable injury does not include left shoulder rotator cuff tear; SLAP tear left shoulder; aggravation of acromioclavicular arthritis; cervical radiculopathy; cervical protrusion at C5-6; aggravation of degenerative spondylolisthesis at L4-5; and depression.

We note that, for the reasons discussed above, the portion of the AMA Guides relied upon by Dr. B to assess 3% impairment for “lack of treatment” is not applicable in the claimant’s circumstances.

The hearing officer is to request the designated doctor to assign an IR for the claimant’s [date of injury], compensable injury based on the claimant’s condition as of the May 9, 2009, date of MMI, considering the claimant’s medical record and the certifying examination.

The parties are to be provided with the designated doctor’s new assignment of IR, and are to be allowed an opportunity to respond. The hearing officer is then to make a determination on IR consistent with this decision. The hearing officer is then to make a determination on SIBs for the first through ninth quarters consistent with this decision. The hearing officer is then to make a determination on whether the carrier is relieved from liability for the first, second, third, fourth, and sixth quarters of SIBs because of the claimant’s failure to timely file a DWC-52 for those quarters, and whether the carrier waived its right to contest the claimant’s entitlement to the fifth, seventh, and eighth quarters of SIBs by failing to timely request a BRC.

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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RON O. WRIGHT, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Thomas A. Knapp
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 May 17, 2012, with the record closing on May 31, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant/cross-respondent’s (claimant) impairment rating (IR) is 19%; (2) the IR assigned by [Dr. D] on May 2, 2011, did not become final under 28 TEX. ADMIN. CODE § 130.102(h) (Rule 130.102(h)); (3) the claimant is not entitled to supplemental income benefits (SIBs) for the first quarter, August 3 through November 1, 2011; (4) the claimant is not entitled to SIBs for the second quarter, November 2, 2011, through January 31, 2012; (5) the respondent/cross-appellant (carrier) is not relieved of liability for SIBs because of the claimant’s alleged failure to timely file an Application for SIBs (DWC-52) for the second quarter; (6) the claimant is not entitled to [SIBs] for the third quarter, February 1 through May 1, 2012; and (7) the carrier is not relieved of liability for SIBs because of the claimant’s alleged failure to timely file a DWC-52 for the third quarter.

The claimant appealed, disputing the hearing officer’s determinations of the IR and non-entitlement of SIBs for the first, second, and third quarters. The carrier responded, urging affirmance of those disputed determinations. The carrier cross-appealed, disputing the hearing officer’s determinations that the carrier is not relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the second and third quarters. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.

The hearing officer’s determination that the IR assigned by Dr. D on May 2, 2011, did not become final under Rule 130.102(h) was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered in part and reversed and remanded in part.

The parties stipulated that: (1) the claimant sustained a compensable injury on [date of injury]; (2) the compensable injury of [date of injury], includes a left hand laceration, an abrasion of the ring and middle fingers of the left hand, a bilateral shoulder strain, a lumbar strain, a herniated disc at L3-4, coccydynia, a right sacroiliac joint injury, and a right knee strain; and (3) the claimant reached maximum medical improvement (MMI) on the date of statutory MMI on June 29, 2010. The claimant testified she was injured when a load lock she was installing came undone and hit her, throwing her off balance and causing her to fall.

The claimant contends that her IR should be 30% as certified by [Dr. W], who was initially appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor for MMI and IR. Dr. W certified in a Report of Medical Evaluation (DWC-69) that the claimant reached MMI on June 17, 2010, with a 30% IR. Dr. W examined the claimant on March 9, 2010. A letter of clarification (LOC) was sent to Dr. W which stated that prospective MMI dates are invalid. Dr. W responded, stating as of March 9, 2010, the claimant was not at MMI. Further as previously noted, the parties stipulated that the claimant reached MMI on the date of statutory MMI, June 29, 2010.

Dr. D was subsequently appointed by the Division as the designated doctor for MMI and IR. Dr. D examined the claimant and certified in a DWC-69 that the claimant reached MMI on January 24, 2011, with a 28% IR, using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides).

Dr. D assessed 5% impairment for the lumbar spine, placing the claimant in Diagnosis-Related Estimate Lumbosacral Category II: Minor Impairment. Based on range of motion (ROM) measurements, Dr. D then assessed 24% upper extremity (UE) impairment for loss of ROM of the left shoulder and 20% UE impairment for the right shoulder. Dr. D then converted the UE impairment to whole person (WP) (14% for the left UE and 12% for the right UE) and combined the impairment assessed for the lumbar spine to arrive at the 28% IR assessed in the DWC-69. In response to an LOC, Dr. D subsequently sent a revised DWC-69 which certified that the claimant reached MMI on June 29, 2010 (the stipulated statutory date) with a 28% IR. A subsequent LOC was sent to Dr. D on April 28, 2011, which noted some errors made by Dr. D in applying Figure 44, page 3/45 of the AMA Guides to the ROM figures noted in his examination. In his response to the LOC, Dr. D acknowledged he made errors and amended his certification of IR to 19%. The hearing officer found that the preponderance of the evidence is not contrary to Dr. D’s certification of MMI and determination of the claimant’s IR.

Dr. D’s certifying examination noted the following ROM figures for the loss of ROM of the claimant’s left shoulder: flexion 85°, extension 20°, abduction 70°, adduction 45°, external rotation 60°, and internal rotation 80°. Dr. D applying Figure 38, page 3/43 of the AMA Guides, correctly notes that impairment for flexion and extension would be 9%. We note that the AMA Guides require that the figures be rounded to the nearest 10° and that he rounded the 85° measurement for flexion to 80° for 7% UE impairment and that the 20° measurement for extension results in 2% UE impairment.^[1]

Dr. D, applying Figure 41, page 3/44 of the AMA Guides, correctly notes that impairment for abduction and adduction is 5% UE impairment. Impairment for abduction of 70° results in 5% UE impairment and there is no impairment for 45° of adduction.

In his initial report, Dr. D assessed UE impairment of 10% for external and internal rotation, using Figure 44, page 3/45 of the AMA Guides. In his response to the LOC of April 28, 2011, Dr. D acknowledges that he made an error in calculating the impairment for external and internal rotation and stated that the ROM loss for external and internal rotation of the left shoulder totals 2% UE impairment. However, we note that Dr. D in his certifying examination noted the claimant’s ROM for external rotation was 60° which results in 0% impairment and the claimant’s ROM for internal rotation of 80° which also results in 0% impairment.

Dr. D initially assessed 24% UE impairment for the left shoulder and in his response to the LOC assessed 16% UE impairment for the left shoulder. We note that using the ROM measurements from Dr. D’s certifying examination the UE impairment for the left shoulder is 14%.

Dr. D’s certifying examination noted the following ROM figures for the loss of ROM of the claimant’s right shoulder: flexion 100°, extension 60°, abduction 80°, adduction 45°, external rotation 90°, and internal rotation 60°. Dr. D, applying Figure 38, page 3/43 of the AMA Guides, correctly notes that UE impairment for flexion and extension would be 5%. Impairment for 100° of flexion results in 5% UE impairment and there is no impairment for 60° of extension.

Dr. D, applying Figure 41, page 3/44 of the AMA Guides, correctly notes that impairment for abduction and adduction is 5% UE impairment. Impairment for abduction of 8° results in 5% UE impairment and there is no impairment for 45° of adduction.

In his initial report, Dr. D assessed UE impairment of 10% for external and internal rotation, using Figure 44, page 3/45 of the AMA Guides. In his response to the LOC of April 28, 2011, Dr. D acknowledges that he made an error in calculating the impairment for external and internal rotation and stated that the ROM loss for external and internal rotation of the right shoulder totals 0% UE impairment. However, we note that Dr. D in his certifying examination noted the claimant’s ROM for external rotation was 90° which results in 0% impairment but the claimant’s ROM for internal rotation of 60° results in 2% UE impairment.

Dr. D initially assessed 20% UE impairment for the left shoulder and in his response to the LOC assessed 10% UE impairment for the left shoulder. We note that using the ROM measurements from Dr. D’s certifying examination the UE impairment for the left shoulder is 12% UE.

The AMA Guides provide that the impairment values for loss of each shoulder motion are added to determine the impairment of the UE and then Table 3, page 3/20 is used to convert the impairment of the UE to impairment of the WP. The AMA Guides further provide that if both limbs are involved, the WP impairment should be calculated on a separate chart and then combined to arrive at the WP impairment assessed.

In his LOC response, Dr. D determined that after converting the UE impairments for the left and right shoulder to WP (10% and 6% respectively) the claimant would have 15% impairment for both the left and right shoulder, which he then combined with the 5% assessed for the lumbar spine and coccydynia injuries resulting in 19%. Dr. D noted that the right knee strain and left hand injuries had resolved for 0% impairment.

However, as previously discussed, Dr. D erred in applying Figure 44, page 3/45, of the AMA Guides for both the left and right shoulders. Using the ROM measurements obtained in the certifying examination of Dr. D, the UE impairment for the left and right shoulder would be 14% and 12% respectively which would convert to WP impairments of 8% and 7% respectively. The 8% for the left shoulder would then be combined with 7% of the right shoulder which would result in 14% WP impairment rather than the 15% WP impairment stated by Dr. D. Combining 14% WP impairment with the 5% WP impairment for the lumbar spine would result in 18% WP impairment for the claimant not 19% as stated by Dr. D. We note that in evidence is correspondence dated February 21, 2011, in which a peer review doctor sets forth the errors made by Dr. D in his initial narrative report.

We have previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR. See Appeals Panel Decision (APD) 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011.

Under the guidance of those cases and according to the provisions of the AMA Guides, we note that Dr. D must combine 8% impairment of the WP for the left shoulder with the 7% impairment of the WP for the right shoulder, and 5% WP impairment for the lumbar spine, using the combined values chart which results in 18% impairment of the WP rather than the 19% WP IR assigned by Dr. D. The hearing officer was persuaded that Dr. D’s certification of MMI and IR was not contrary to the preponderance of the evidence and after mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the hearing officer’s decision that the claimant has a 19% IR and we render a new decision that the claimant’s IR is 18%.

ENTITLEMENT TO SIBS FOR THE FIRST, SECOND, AND THIRD QUARTERS

It is necessary to have a determination of the date of MMI and the IR to calculate the dates of the quarters and qualifying periods. Section 408.142 and Rule 130.101. See APD 052516, decided January 11, 2006. Because a new IR has been rendered, the dates of the qualifying periods and SIBs quarters will change. Given the differences in the dates of the applicable SIBs quarters and qualifying periods, we reverse the hearing officer’s determinations that the claimant is not entitled to SIBs for the first, second, and third quarters and remand the SIBs issues in dispute to the hearing officer to examine the evidence and make a determination regarding entitlement to SIBs based on the correct dates. The hearing officer, at his discretion, may receive additional evidence from the parties on the issues of entitlement to SIBs for the first, second, and third quarters.

CLAIMANT’S TIMELY FILING OF THE SIBS APPLICATIONS FOR SECOND AND THIRD QUARTERS

The carrier correctly notes in its appeal that the hearing officer failed to make any findings of fact with regard to the dates the DWC-52s were filed for the second and third quarters.

We note that under Rule 130.104(b), the carrier is required to send a DWC-52 for a subsequent quarter with either the first payment for a quarter of SIBs to which the claimant is determined to be entitled or with the carrier’s determination of non-entitlement for that quarter. See APD 021776, decided August 28, 2002. The duty of a carrier to send the application arises only with either the first payment of SIBs or a determination of non-entitlement for any quarter. See APD 020047, decided February 21, 2002. As previously noted, the dates of the applicable SIBs quarters and qualifying periods will change based on the change in the IR. See Rules 130.104 and 130.105.

We reverse the hearing officer’s determinations that the carrier is not relieved of liability for SIBs because of the claimant’s alleged failure to timely file a DWC-52 for the second and third quarters and remand the issues of whether the carrier is relieved of liability because of the claimant’s failure to timely file a DWC-52 for the second and third quarters to the hearing officer to examine the evidence and make a determination regarding these issues based on the correct dates. The hearing officer, at his discretion, may receive additional evidence from the parties on the issues of whether the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file DWC-52s for the second and third quarters.

SUMMARY

We reverse the hearing officer’s decision that the claimant has a 19% IR and we render a new decision that the claimant’s IR is 18%.

We reverse the hearing officer’s determinations that the claimant is not entitled to SIBs for the first, second, and third quarters and remand the issues of SIBs entitlement for the first, second, and third quarters to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determinations that the carrier is not relieved of liability for SIBs because of the claimant’s alleged failure to timely file DWC-52s for the second and third quarters and remand the issues of whether the carrier is relieved of liability for the claimant’s failure to timely file a DWC-52 for the second and third quarters to the hearing officer for further action consistent with this decision.

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, as amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of time in which a request for appeal or a response must be filed. See APD 060721, decided June 12, 2006.

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

RON O. WRIGHT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

In this case, the WP IR of the claimant using the ROM measurements of Dr. D for both the right and left shoulder would result in 18% whether Dr. D rounded the 85° to 80° or 90°.

↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 10, 2012, 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 eligible for supplemental income benefits (SIBs) for the second quarter, August 30 through November 28, 2011; (2) the claimant is eligible for SIBs for the third quarter, November 29, 2011, through February 27, 2012; (3) the claimant is entitled to SIBs for the fourth quarter, February 28 through May 28, 2012; and (4) the appellant (carrier) is relieved of liability for SIBs because of the claimant’s failure to timely file an Application for [SIBs] (DWC-52) for the entire second and third quarters. The carrier appeals the hearing officer’s determinations that the claimant is eligible for second and third quarters SIBs and that the claimant is entitled to SIBs for the fourth quarter. The appeal file does not contain a response from the claimant. The hearing officer’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 entire second and third quarters was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that the claimant sustained a compensable injury on [date of injury], which resulted in an impairment rating (IR) of 15% or greater; the claimant had not commuted any portion of the impairment income benefits (IIBs); the filing date for the second quarter was August 23, 2011; and the filing date for the third quarter was November 22, 2011. The parties additionally stipulated to the qualifying dates for the second, third, and fourth quarter. However, the hearing officer mistakenly noted that the parties stipulated that the qualifying period for the second quarter of SIBs was from May 8 through August 16, 2011. A review of the record reflects that the parties actually stipulated that the qualifying period for the second quarter of SIBs was from May 18 through August 16, 2011.

The hearing officer’s determination that the claimant is entitled to SIBs for the fourth quarter, February 28 through May 28, 2012, is supported by sufficient evidence and is affirmed. That portion of the hearing officer’s determination that the claimant is eligible for SIBs for the third quarter, November 29, 2011, through February 27, 2012, is supported by sufficient evidence and is affirmed. As previously noted, the hearing officer’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 entire second and third quarters was not appealed and has become final pursuant to Section 410.169.

ELIGIBILITY FOR SECOND QUARTER SIBS

Section 408.142 as amended by the 79th Legislature, effective September 1, 2005, references the requirements of Section 408.1415 regarding work search compliance standards. Section 408.1415(a) states that the Texas Department of Insurance, Division of Workers’ Compensation commissioner by rule shall adopt compliance standards for SIBs recipients. 28 TEX. ADMIN. CODE § 130.102(b) (Rule 130.102(b)) sets forth the eligibility criteria for SIBs. Rule 130.102(b) provides that an injured employee who has an IR of 15% or greater, who has not commuted any IIBs, who has not permanently lost entitlement to SIBs and who has completed and filed a DWC-52 in accordance with this subchapter is eligible to receive SIBs if, during the qualifying period, the injured employee: (1) has earned less than 80% of the injured employee’s average weekly wage as a direct result of the impairment from the compensable injury; and (2) has demonstrated an active effort to obtain employment in accordance with Section 408.1415 and this section. The hearing officer found that the claimant did not file a DWC-52 for the second quarter and that finding was not appealed. Filing a DWC-52 is a requirement that has to be met in order to become eligible for SIBs according to Rule 130.102(b). The hearing officer found that the claimant did not file a DWC-52 for the second quarter. Accordingly, the hearing officer erred in determining that the claimant is eligible for SIBs for the second quarter because the claimant did not meet the eligibility criteria set forth in Rule 130.102(b). That portion of the hearing officer’s determination that the claimant is eligible for SIBs for the second quarter, August 30 through November 28, 2011, is reversed and a new decision rendered that the claimant is not eligible for SIBs for the second quarter, August 30 through November 28, 2011.

SUMMARY

We affirm the hearing officer’s determination that the claimant is entitled to SIBs for the fourth quarter, February 28 through May 28, 2012. We affirm that portion of the hearing officer’s determination that the claimant is eligible for SIBs for the third quarter, November 29, 2011, through February 27, 2012. As previously noted, the hearing officer’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 entire second and third quarters was not appealed and has become final pursuant to Section 410.169.

We reverse that portion of the hearing officer’s determination that the claimant is eligible for SIBs for the second quarter, August 30 through November 28, 2011, and render a new decision that the claimant is not eligible for SIBs for the second quarter, August 30 through November 28, 2011.

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

NATIONAL REGISTERED AGENTS, INC.

16055 SPACE CENTER BOULEVARD, SUITE 235

HOUSTON, TEXAS 77062-6212.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 12, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the two issues before him, the hearing officer determined that: (1) the appellant/cross-respondent (claimant) is entitled to supplemental income benefits (SIBs) for the second quarter, December 8, 2011, through March 7, 2012, but he will only receive SIBs from January 19, 2012, through March 7, 2012, by virtue of his failure to timely file his second quarter Application for [SIBs] (DWC-52); and (2) the respondent/cross-appellant (carrier) is relieved of liability for SIBs because of the claimant’s failure to timely file his DWC-52 for the second quarter from December 8, 2011, through January 18, 2012.

The claimant appealed the hearing officer’s determination that he will only receive SIBs from January 19, 2012, through March 7, 2012, by virtue of his failure to timely file his second quarter DWC-52 and that the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the second quarter. The carrier responded, urging affirmance. The carrier also cross-appealed the hearing officer’s determination that the claimant is entitled to SIBs for the second quarter, December 8, 2011, through March 7, 2012. The appeal file does not contain a response to the carrier’s cross-appeal.

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 claimant has not commuted any portion of the impairment income benefits; (3) the qualifying period for the second quarter of SIBs was from August 26, 2011, through November 24, 2011; and (4) the Texas Workforce Commission Local Workforce Development Board has determined three weekly job searches for the county the claimant lives in, [County 1], are required for unemployment compensation for the qualifying period.

SECOND QUARTER SIBS

That portion of the hearing officer’s determination that the claimant is entitled to SIBs for the second quarter, December 8, 2011, through March 7, 2012, is supported by sufficient evidence and is therefore affirmed.

TIMELINESS OF FILING CLAIMANT’S DWC-52

The claimant’s theory for second quarter SIBs entitlement is work search contacts. In evidence is the claimant’s DWC-52, which reflects the claimant’s DWC-52 for second quarter SIBs was due on December 1, 2011. The evidence reflects that the claimant initially filed his DWC-52 for the second quarter on November 30, 2011. The claimant attached to his DWC-52 dated November 30, 2011, a Detailed Job Search/Employer Contact Log (Contact Log) for weeks 1 through 10 and 12 through 13 of the qualifying period documenting his work searches; however, the claimant’s Contact Log did not include any information regarding week 11 of the qualifying period. The claimant submitted a Contact Log documenting the four job contacts he had made during week 11 of the qualifying period after the December 1, 2011, due date.^[1]

The hearing officer noted in the Background Information section of his decision the following:

As for the timeliness of [the] [c]laimant’s [DWC-52], it cannot be considered timely. [The] [c]laimant did not provide evidence of a weekly job search for [week 11] to the [c]arrier until January 18, 2012. Without evidence of job searches for this week [the] [c]laimant would not have been eligible for SIBs for the [second] quarter. [The] [c]arrier would not have to have paid without this information so it cannot be said the [DWC-52] was complete until this information was provided. [The] [c]arrier is not liable for SIBs for the second quarter from December 8, 2011, through January 18, 2012.

The hearing officer found that the carrier received the claimant’s completed second quarter DWC-52 on January 18, 2012, and determined the carrier is relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the second quarter.

Section 408.143 provides in pertinent part:

After the commissioner’s initial determination of [SIBs], the employee must file a statement with the insurance carrier stating:

* * * *

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

(b)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.

(c)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.

28 TEX. ADMIN. CODE § 130.101 (Rule 130.101) provides in part that an application for SIBs, required pursuant to Section 408.143(b), contain a statement, with supporting documentation, that the employee has complied with Section 408.1415. Rule 130.102, regarding eligibility for SIBs, requires an injured employee to complete and file an application for SIBs.

In the case on appeal, the claimant initially filed a DWC-52 for the second quarter qualifying period prior to the due date. It is uncontested that while the claimant submitted with his DWC-52 documentation of job search contacts he made during the second qualifying period to show compliance with Section 408.1415, he failed to include any documentation of job search contacts for week 11 of the qualifying period. The question becomes whether or not the claimant’s failure to include a Contact Log or supporting documentation for one week of the qualifying period renders his DWC-52 “incomplete,” and therefore a failure to timely file his DWC-52.

A similar situation was discussed in Appeals Panel Decision (APD) 021719, decided August 26, 2002. In that case, the claimant’s position at the CCH on the good faith job search requirements under the SIBs rules in effect at the time of the qualifying period was that he searched for employment during every week of the qualifying period, and that he also was enrolled in a Texas Rehabilitation Commission-sponsored program. The claimant supplemented his original DWC-52 with additional job contacts at the benefit review conference. The carrier argued that a claimant’s failure to file a complete DWC-52 by the due date constitutes a failure to file at all. We rejected that argument in that case, and stated that the completeness of a DWC-52 goes to the weight it will be given, not to whether that form has been timely filed.

Although APD 021719, supra, was decided prior to the current SIBs rules, we find the holding in that case remains applicable in the case on appeal. Further, we note that nowhere do the Act or Rules specifically explain what constitutes a complete DWC-52, nor do the Act or Rules require an injured employee to provide all evidence regarding SIBs eligibility at the time of filing, and we decline to read into the Act or Rules any such requirement. Therefore, we hold the claimant in this case timely filed his DWC-52 for the second quarter. Accordingly, we reverse that portion of the hearing officer’s SIBs determination that the claimant will only receive SIBs from January 19, 2012, through March 7, 2012, by virtue of his failure to timely file his second quarter DWC-52, by striking that language.

Further, we reverse the hearing officer’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 second quarter from December 8, 2011, through January 18, 2012, and render a new decision that the carrier is not relieved of liability for SIBs because the claimant timely filed a DWC-52 for the second quarter.

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

MR. RON O. WRIGHT, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

We note that the evidence contains two different dates on which the claimant submitted a Contact Log for week 11 of the qualifying period. The hearing officer found the claimant submitted the Contact Log on January 18, 2012, which was one of the dates found in evidence.

↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 6, 2011. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the first quarter; (2) the claimant is not entitled to SIBs for the second quarter; (3) the claimant is entitled to SIBs for the third quarter; and (4) since the Texas Department of Insurance, Division of Workers’ Compensation (Division) failed to issue a determination of non-entitlement to SIBs for the first quarter until January 27, 2011, 28 TEX. ADMIN. CODE §130.105(a)(2) (Rule 130.105(a)(2)) applies, and since the claimant filed his second and third Application for [SIBs] (DWC-52) simultaneously on January 25, 2011, the appellant (carrier) is not relieved of liability.

The carrier appealed, contending that the claimant it is not entitled to SIBs for the third quarter. Additionally, the carrier appeals the hearing officer’s determination that it is not relieved from liability due to the claimant’s late filing of the second and third quarter DWC-52s. The claimant responded, urging affirmance. The hearing officer’s determinations that the claimant is not entitled to SIBs for the first quarter and is not entitled to SIBs for the second quarter were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The hearing officer’s determination that since the Division failed to issue a determination of non-entitlement to SIBs for the first quarter until January 27, 2011, Rule 130.105(a)(2) applies, and since the claimant filed his second and third quarter DWC-52s simultaneously on January 25, 2011, carrier is not relieved of liability is supported by sufficient evidence and is affirmed.

The parties stipulated in part that: on (date of injury), the claimant sustained a compensable injury; the qualifying period for the third quarter of SIBs was from September 13, 2010, through December 12, 2010; (Dr. V) was selected by the Division to serve as the designated doctor to determine the claimant’s return to work status; and that during the first, second, and third quarter qualifying periods the claimant did not work nor earn any wages. The claimant testified that his right foot was injured when a metal beam fell on his right foot and has undergone five surgeries.

Eligibility criteria for SIBs entitlement are set forth in Section 408.142. Rule 130.101(4) provides in part, that a qualifying period that begins on or after July 1, 2009, is subject to Rules 130.100-130.109 effective July 1, 2009.

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

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

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

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

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

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

The claimant’s theory of entitlement to SIBs for the third quarter was a total inability to work (Rule 130.102(d)(1)(E)). The hearing officer stated she found that (Dr. K)’s narrative sufficiently details the nature of the complications that resulted from the claimant’s compensable injury and how it resulted in the claimant’s total inability to work during the third quarter qualifying period.

The evidence reflects that Dr. K performed surgery on the claimant’s right foot on November 3, 2010, during the qualifying period for the third quarter. Dr. K discussed in correspondence some of the claimant’s medical history since the injury and his continuing problems with his right foot and the pain he has when walking. However, Dr. K did not give an opinion about the claimant’s ability to work in any capacity. Dr. K’s report does not constitute a narrative which specifically explains how the compensable injury causes a total inability to work pursuant to Rule 130.102(d)(1)(E). Additionally, there is no other narrative in evidence that specifically explains how the compensable injury causes a total inability to work pursuant to Rule 130.102(d)(1)(E).

In reviewing a “great weight” challenge, we must examine the entire record to determine if: (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence. See Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the third quarter as being so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We render a new decision that the claimant is not entitled to SIBs for the third quarter.

The true corporate name of the insurance carrier is NEW HAMPSHIRE 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:

Cynthia A. Brown
Appeals Judge

Thomas L. Knapp
Appeals Judge