DECISION AND ORDER
_______________contests the Notice of Administrative Violation(s) and Order to Respond of Texas Workers’ Compensation Commission (Commission), charging him with committing one or more administrative violation(s) pursuant to §415.032 of the Texas Workers’ Compensation Act (Act). The Commission charges that __________knowingly or intentionally concealed a material fact for the purpose of obtaining workers’ compensation benefits in violation of §415.008(a) of the Act. Specifically, the Commission charges _________returned to work, and continued to collect temporary income benefits (TIBs) to which he was not entitled. This Decision concludes that__. _______did not commit the administrative violation with which he is charged by the Commission and denies that the Commission be allowed to assesses a penalty of $1,000.00, but orders that___. ________repay $4340.71 of TIBs to the insurance carrier.
I. PROCEDURAL HISTORY, NOTICE AND JURISDICTION
On October 3, 2002, a hearing in this matter was convened before Administrative Law Judge (ALJ) Bill Zukauckas at the William C. Clements Building, 300 West 15th, Congress Avenue, Austin, Texas. __________appeared by phone and was assisted by Commission Ombudsman Anthony Walker, who appeared at the hearing. The Commission was represented by Yvonne M. Williams, Staff Attorney. The hearing concluded the same day and the record closed on October 18, 2002, after submission of closing arguments.
The Commission has jurisdiction to consider this matter pursuant to Tex. Labor Code Ann. ch. 415. The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing, including the authority to issue a decision and order, pursuant to '415.034 of the Act and Tex. Gov’t. Code Ann. ch. 2003.
On ____________suffered a work related injury while working for __________. At the time,_________. held worker’s compensation insurance through CNA-Transcontinental Insurance Company (CNA). On August 13, 1998, ________reached maximum medical improvement with a 3% impairment rating. In late August of 1998, ________commenced employment with _____ and worked with them until the later part of September 1998. After leaving ______ in late September, he began work with __________ on October 2, 1998.
From July 1998 through February 1999, _______received weekly TIBs payments from CNA Insurance in the total amount of $4,340.71. Both parties now agree he was not entitled to this amount of TIBs by reason of his return to work and his weekly earnings during this period.
B.Summary of Parties’ Positions
The Commission’s position is that ________violated §415.008 of the Actby knowingly or intentionally concealing a material fact to obtain a workers’ compensation benefit. The Commission argues that the most credible evidence shows that although___ _______might have informed CNA of his return to work in October 19, 1998, _____continued to receive from CNA weekly TIBs payments in the total amount of $4,340.71, to which he was not entitled.
The Commission asserts that _________return to work, and the amount of his income, were “material facts” because they affected _________entitlement to continued TIBs payments.
The Commission argues that even __________properly notified CNA that he had returned to work, ________had a duty to return CNA’s TIBs payments as they were received. Because he cashed the TIBs checks for “weeks and months” after TIBs were no longer payable was itself an intentional and knowing violation of §415.008 of the Act. The Commission argues that pursuant to §415.008, a person who has obtained an excess payment in violation of this section is liable for full repayment; and that a violation of §415.008 is punishable by an administrative penalty not to exceed $5,000.00 pursuant to §415.022 of the Act. The Commission argues that a penalty of $1000.00 is appropriate for these circumstances.
______________does not dispute the Commission’s position that he received an overpayment of TIBs from CNA in the total amount of $4,340.71. He admits that he was not entitled to these payments, and states a willingness to reimburse CNA in the amount of $4,340.71.
On the other hand________ denies that he knowingly or intentionally concealed a material fact with regard to his eligibility for continued TIBs payments from CAN ____. _______claims that he notified CNA, and the Commission, of his return to work, but that CNA continued to send him TIBs payments during the period in dispute. _________says that he cashed CNA’s checks because he believed he had fulfilled his obligation to notify CNA about his new employment.
C. Analysis and Conclusion
Section 415.008 of the Act provides that:
(a)A person commits a violation if the person, to obtain or deny a payment of a workers’ compensation benefit or the provision of a benefit for the person or another, knowingly or intentionally:
. . .
(2) misrepresents or conceals a material fact . . . .
Pursuant to §415.008(c), a person who has obtained an excess payment in violation of the section is liable for full repayment plus interest computed at the rate prescribed by '401.023 of the Act. The amount of overpayment to ______is not disputed and he has agreed that he owes and will repay $4340.71. The only contested issue is whether an administrative fine should be assessed for any misrepresentation or concealment of a material fact by_________.
The burden is on the Commission to prove by a preponderance of the evidence that _________ committed the administrative violation with which he is charged. He did disclose, as required, that he was had found employment. Although___________ received overpayments of $4340.71, insufficient evidence was presented to show that he misrepresented or concealed a material fact. The evidence indicates that __________made at least some minimal effort to contact CNA on September 1, 1998, and advised it that he was employed. Consequently, the Commission has not shown by a preponderance of the evidence that _________did any action calculated to “misrepresent or conceal a material fact.” The ALJ concludes, therefore, that the Commission has not met this burden and that an administrative penalty should not be assessed against___._____. Because _______admits, however, he was not entitled to receive $4,350.71 of TIBs from CNA, he is ordered to repay that amount, with interest, as provided by §401.023 of the Act.
The ALJ concludes that ________did not violate §415.008 of the Act and accordingly orders that no administrative penalty be assessed against_______. ___. _______is ordered reimburse CNA in a sum equal to the TIBs overpayment of $4,340.71, with interest as provided for in §401.023 of the Act.
III. FINDINGS OF FACT
- On __________suffered a work related injury during the course of employment with________, with a resulting disability entitling him to temporary income benefits (TIBs).
- At the time of ______________injury,___________., carried workers’ compensation insurance through CNA-Transcontinental Insurance Company (CNA).
- In July, 1998, CNA commenced weekly TIBs payments to_____________.
- With the first payment of TIBs, CNA provided ___________a form entitled Notification of First Payment (TWCC-26) which informed ________that he was required to tell CNA-Transcontinental when (a) he started earning any income, (b) his income increased or decreased, or (c) he had an offer of employment.
- In August of 1998, ________assumed full time employment with _____ and worked there until the later part of September 1998. After leaving _____ in late September, he began work on October 2, 1998, with ________.
- During a period between July 1998 and February 1999, ________received weekly TIBs payments from CNA in the total amount of $4,340.71. _______was not entitled to this income by reason of his return to work and weekly earnings during part of this period.
- On September 1, 1998, _______notified CNA that he returned to work.
- For a part of the period between October 1998 and February 1999, CNA overpaid __________in the amount of $4,340.71.
- ____________accepted, and deposited or cashed, the TIBs checks received from CNA between July 1998 through February 1999.
- ___________timely requested a hearing, and proper notice of the hearing was issued by the Commission on May 20, 2002.
IV. CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission (Commission) has jurisdiction of this case pursuant to §415.021 of the Texas Workers’ Compensation Act (Act), Tex Labor Code Ann. ch. 401, et seq.
- The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to §415.034 of the Act and Tex. Gov’t. Code Ann., ch. 2003.
- A person who, to obtain a payment of a workers’ compensation benefit, knowingly or intentionally conceals a material fact commits a Class B administrative violation, punishable by an administrative penalty not to exceed $5,000.00, pursuant to ''415.008(a) and 415.022 of the Act.
- A person who has obtained an excess payment in violation of §415.008 of the Act is liable for full repayment plus interest computed at the rate prescribed by §401.023 of the Act.
- ___________gave effective notice to CNA that he was continuing to receive TIBs payments from them even though he had returned to work.
- Based on Findings of Fact Nos. 6 and 7 and Conclusion of Law No. 5, _______did not commit an administrative violation of §415.008(a) of the Act by knowingly or intentionally concealing material facts because he gave CNA notice of his return to work and consequently no administrative penalty should be assessed against___. _______
- Based on Findings of Fact No. 6, _________is liable for full repayment to CNA of the unrecouped temporary income benefits overpayment to him in the amount of $4,350.71, plus interest at a rate computed pursuant to §401.023 of the Act.
IT IS, THEREFORE, ORDERED that _____________repay to CNA-Transcontinental Insurance Company $4,340.71, plus interest at a rate computed pursuant to §401.123 of the Texas Workers’ Compensation Act.
Signed this 18th day of December, 2002.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS