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At a Glance:
Title:
453-04-1386-e1
Date:
April 26, 2004

453-04-1386-e1

April 26, 2004

DECISION AND ORDER

GRANTING SUMMARY DISPOSITION

I. SUMMARY

This case involves the decision by the Texas Workers’ Compensation Commission (Commission) to designate North Texas Municipal Water District (NTMWD) as a hazardous employer. The parties have stipulated to certain facts and submit that this case hinges on a legal issue alone. Specifically, the parties disagree about the method used to determine which injured employees are included in the calculations underlying the hazardous employer designation. The parties agreed to cancel the hearing and submit the case for summary disposition. The Commission has moved for summary disposition pursuant to 1 Tex. Admin. Code § 155.57, contending that the evidence establishes as a matter of law that NTMWD was properly designated as a hazardous employer.

After considering the parties’ arguments and evidence, the Administrative Law Judge (ALJ) grants the Commission’s motion and finds that the evidence establishes, as a matter of law, that NTMWD was properly designated a hazardous employer. In reaching this conclusion, the ALJ finds that the term "lost time," as used in 28 Tex. Admin. Code § 164.1(b)(11), means any time that an employee is unable to work due to a work injury-regardless of whether the employee was scheduled to work during the time period. The Commission correctly applied this rule and properly calculated NTMWD's lost time injuries in determining that NTMWD is a hazardous employer.

II. BACKGROUND AND STIPULATED FACTS

The Commission has designated NTMWD as a hazardous employer, based on NTMWD’s employee injury frequency during the audit period of October 1, 2000, through September 30, 2001. The parties do not dispute the number of injuries to employees. Nor do the parties disagree as to the basic mechanics of the calculations used to determine hazardous employer designations, with one exception. The Commission asserts that, in determining which employees to include for injured employee calculations, employees who are injured for greater than seven days, regardless of whether they are scheduled to work during that time, are included in the calculation. NTMWD disagrees and asserts that only those employees who have missed greater than seven days of work because of an injury are to be included in the calculations.

As applied to this case, the parties’ different interpretations are relevant to two employees,____ and____. Under the Commission’s interpretation, the two employees are included in the calculations and NTMWD is properly designated a hazardous employer. However, under NTMWD’s interpretation, the two employees are not included and NTMWD is not a hazardous employer. To allow for determination of this case on summary disposition, the parties have agreed to the following seven stipulations:

  1. [Exhibit 2, and its attachments, to the Commission’s First Amended Motion for Summary Disposition] shows the number of work days missed because of injury for ___ and____. Their scheduled work days and hours of work and unscheduled days are also shown.
  2. ____ missed five (5) scheduled work days due to injury. ____ missed seven (7) scheduled work days due to injury.
  3. The Workers’ Compensation Insurance carrier paid each one for six (6) days.
  4. ____. was injured on _____ and returned to work on August 23, 2001 B which was his next scheduled work day.
  5. ___’s disability ended on August 19, 2001.
  6. ____ was injured on _____ , and returned to work on September 11, 2001.
  7. ___’s disability ended on September 10, 2001.

The stipulated, attached evidence also reveals that both ___ and ___worked alternate work schedules. ___ worked two 14-hour days and one 12-hour day in a week, and___ worked four 10-hour days. In total, each employee was unavailable for work on approximately 13 consecutive days due to injury. In terms of actual work hours missed because of injury,___. missed 73.5 work hours and____. missed 72 hours of work.

Based on the stipulations and undisputed facts, the issue for determination is whether the injuries sustained by ___ and ___ are to be included as lost time injuries for purposes of determining whether NTMWD is a hazardous employer.

III. APPLICABLE LAW

The Legislature has granted the Commission authority to designate hazardous employers for purposes of applying the workers’ compensation laws of the State. The Commission has adopted rules, set out in 28 Tex. Admin. Code § 164.1 et seq., for determining which employers are to be designated as “hazardous.” Under the Commission’s rules, injuries to employees are included in the hazardous employer calculations if they are “lost time injuries” as described in 28 Tex. Admin. Code § 164.1(b)(11), which states:

Lost Time Injuries-Injuries (excluding occupational diseases and fatalities) resulting in greater than seven days of lost time. Injuries with lost time of greater than one day, but less than eight days, will be included when provided by rule.

There is no rule, statute, or clear precedent defining “lost time” for purposes of that rule. Ultimately, the definition of “lost time” is the question to be resolved in this dispute.

IV. DISCUSSION AND ANALYSIS

A. The Parties’ Arguments

The Commission contends that “lost time,” as used in 28 Tex. Admin. Code § 164.1(b)(11), means any time that the employee is “unable to work due to injury,” including time when the employee may not have been scheduled to work. The Commission asserts this interpretation is supported by the general structure and purpose of the Texas Workers’ Compensation Act (the Act).

In particular, the Commission argues that its hazardous employer designation rules, including 28 Tex. Admin. Code § 164.1(b)(11), should be read in tandem with the requirements of the Act, and the Commission’s rules, regarding disability benefits. The Commission notes that an injured employee ordinarily does not receive temporary income benefits for the first seven calendar days of an injury. Rather, an injured employee begins to receive temporary income benefits from a disabling injury only on the eighth calendar day after the injury.[1] Thereafter, the injured employee is entitled to receive weekly income benefits regardless of whether the employee was scheduled to work during the days for which benefits are paid. So, for example, an employee who suffers an injury that leaves him unable to work for only four calendar days has no entitlement to temporary income benefits. However, if an employee is injured for nine calendar days, that employee will receive two days of income benefits. If the employee is injured and disabled for at least four weeks, then the employee will also be entitled to receive income benefits for the first seven calendar days of the injury.[2]

Turning to the hazardous employer designation rules, the Commission contends that the language in 28 Tex. Admin. Code § 164.1(b)(11) limiting lost time injuries to those lasting over seven days is intended to reflect the Commission’s decision to not count against employers those employees who may be injured but are not entitled to receive temporary income benefits. Essentially, the Commission contends that it gives employers “a break” in determining hazardous employer status by only counting employees who receive income benefits. Arguably, this makes sense because the hazardous employer designation impacts the employer’s workers’ compensation insurance premiums, and only payable income benefits “claims” under the insurance should be held against the employer. With these purposes in mind, and because both___. And____ were unable to work for more than seven calendar days because of their injury, the Commission contends they should be included in the hazardousemployer calculations.

NTMWD disagrees, arguing that “lost time” means only time the employees were actually scheduled to work, but were unable to do so because of their injuries. In support of this, NTMWD cites to case law purportedly establishing that “loss of time” within the personal injury and insurance indemnity context means time that an employee is prevented from actually working and, therefore, loses wages.[3] NTMWD contends that an employee who is not scheduled to work does not lose any wages or time intended to be devoted to work, so he has not suffered “lost time.” As an example, NTMWD refers to an employee who is injured while on vacation. NTMWD argues the employee may be unable to work, but he has not suffered “lost time” because he was not going to be working during the time period in issue anyway.

NTMWD asserts that, had the Commission intended to use disability benefits rules as a guide for the hazardous employer designation rules, it could have clearly stated so or could have used identical language in each rule. But it did not, instead using the term “lost time,” without reference to the statutory definition for disability. Moreover, NTMWD argues that the objective of paying benefits to injured employees, and the purpose in determining which employers are truly hazardous

and need the specified statutory supervision, are not necessarilythe same.

B. The ALJ’s Analysis

At the outset, the ALJ notes that there is no clear precedent establishing the intended meaning of “lost time,” as used in 28 Tex. Admin. Code § 164.1(b)(11). Moreover, the phrase does not have a “plain meaning” from ordinary usage. Lost time can just as easily mean “lost time from work” (denoting actual missed work time) as it can mean “lost time from being able to work” (denoting the time that an employee is unable to work). Ultimately, the ALJ concludes that the most reasonable interpretation is that presented by the Commission, i.e., that lost time is any time that an employee is unable to work due to injury, regardless of whether the employee was scheduled to work. This interpretation allows for a fair and consistent application of the hazardous employer designation rules and is less likely to lead to arbitrary or absurd results.

On the other hand, the proposed interpretation offered by NTMWD would lead to arbitrary and potentially absurd results. Under NTMWD’s interpretation, for “lost time injuries” the Commission would look only at the amount of time that an employee misses from work as the indicator of the hazardous nature of the employer. However, this interpretation allows for employees with the exact same injuries (meaning, in this context, similar injuries with similar resulting time periods unavailable for work) to be treated differently, based solely on the variations in the employees’ work schedules. Such a distinction does not allow for uniform treatment of employers, and would significantly reduce the reliability of hazardous employer designations.

The potential absurdity of NTMWD’s proposed interpretation can be seen in the example of two employees, Employee A and Employee B, each of whom works 40 or more hours per week. Employee A works five, eight-hour workdays. Employee B works three 14-hour workdays each week. If both employees suffer the exact same injury and are disabled for exactly two calendar weeks, Employee B would actually miss more work time than Employee A. However, only Employee A would count against the employer for hazardous designation purposes, because Employee A missed 10 workdays, while Employee B only missed six workdays. The ALJ finds it unreasonable to interpret 28 Tex. Admin. Code § 164.1(b)(11) to allow for such inconsistent and arbitrary results.[4] The law is clear that the rules of construction prohibit interpretations that result in

absurd results or will cause inequity or unjust discrimination.[5] Moreover, NTMWD’s interpretation allows the employer’s determination regarding work schedules to control over factors such as the actual length of the injury or actual amount of time (in real hours) missed from work. Such would not allow for a consistent application of the Commission’s rules or for just and uniform designation of hazardous employers.

On the other hand, the Commission’s proposed interpretation allows for uniform treatment of injuries and hazardous employer designations. If an employee has an injury that renders him unable to work for more than seven calendar days, then that injury counts in the hazardous employer designation calculations. This allows for employers to be treated equally and removes the arbitrariness that results from differences in work schedules for employees. In the absence of clear precedential or persuasive authority indicating another meaning for “lost time,” this is the meaning the ALJ ascribes to the phrase, as it is used in 28 Tex. Admin. Code § 164.1(b)(11).

Moreover, this interpretation fits neatly with the disability benefits statutes and rules, which allow employees to begin accruing benefits on the eighth day after the injury, regardless of work schedule. The law is well-settled that a statute must be considered as a whole rather than in its isolated provisions.[6] Similarly, the ALJ concludes that it is appropriate to look at the entirety of the Workers’ Compensation Act, and the rules implementing it, when attempting to interpret an ambiguous provision. While there is no clear written statement by the Commission regarding its intent in using the phrase “lost time” in 28 Tex. Admin. Code § 164.1(b)(11), or in setting sevendays as the threshold, it is entirely reasonableto see the time period in the hazardous employer designation rules in relation to the same time period established in the disability benefits portion of the Workers’ Compensation Act.[7]

In conclusion, then, the ALJ finds that the term “lost time,” as used in 28 Tex. Admin. Code § 164.1(b)(11), means any time that an employee is unable to work due to a work injuryCregardless of whether the employee was scheduled to work during the time period. Given this interpretation, the Commission correctly included the lost time injuries of J.A. and R.H. and correctly designated NTMWD as a hazardous employer. In support of this determination, the ALJ makes the following findings of fact and conclusions of law.

V. FINDINGS OF FACT

  1. ___ and ___ were employed by North Texas Municipal Water District (NTMWD) at all times relevant to this case.
  2. Both___. and ___ worked alternate work schedules for NTMWD:___worked two 14-hour days and one 12-hour day in a week, and___ worked four 10-hour days.
  3. ___. was injured on _____ .
  4. As a result of his injury,___ was disabled and unable to work for at least 13 consecutive calendar days.
  5. ___.’s disability ended on August 19, 2001.
  6. ___ returned to work on August 23, 2001.
  7. ___ missed five (5) scheduled work days, and a total of 73.5 work hours, due to injury.
  8. NTMWD’s Workers’ Compensation Insurance carrier paid ___. for six (6) days of temporary income benefits.
  9. ___ was injured on _____ .
  10. As a result of his injury,___ was disabled and unable to work for at least 13 consecutive calendar days.
  11. ___.’s disability ended on September 10, 2001.
  12. ___. returned to work on September 11, 2001.
  13. ___missed seven (7) scheduled work days, and a total of 72 work hours, due to injury.
  14. NTMWD’s Workers’ Compensation Insurance carrier paid___ for six (6) days of temporary income benefits.
  15. On July 8, 2002, the Texas Workers’ Compensation Commission (Commission) designated NTMWD as a hazardous employer, based on NTMWD’s employee injury frequency during the audit period of October 1, 2000, through September 30, 2001.
  16. The Commission included the injuries to ___ and___ as “lost time” injuries in determining whether NTMWD was a hazardous employer.
  17. If ___'s and___’s injuries are not counted as lost time injuries, then NTMWD would not be designated a hazardous employer for the audit period in issue.
  18. On August 1, 2002, NTMWD requested a hearing on its hazardous employer designation.
  19. The matter was referred to the State Office of Administrative Hearings (SOAH) on December 4, 2003.
  20. Notice of the hearing was provided to all parties by the Commission’s Chief Clerk on December 8, 2003.
  21. The hearing was canceled, and the case was submitted for summary disposition, by agreement of the parties.
  22. The record closed on April 19, 2004, after the parties filed their written arguments regarding summary disposition.

VI. CONCLUSIONS OF LAW

  1. The Commission has the authority to conduct audits and designate hazardous employers pursuant to Tex. Labor Code§411.041 and 28 Tex. Admin. Code § 164.1 et seq.
  2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this case, including the authority to issue a decision and order, pursuant to Tex. Labor Code §§ 402.073(b) and 411.049, and Tex. Gov’t Code ch. 2003.
  3. NTMWD timely requested a hearing pursuant to 28 Tex. Admin. Code § 164.15 and 148.3.
  4. Adequate and timely notice of the hearing was provided to all parties pursuant to Tex. Gov’t Code §§ 2001.051 and 2001.052.
  5. Summary disposition is appropriate in this case, pursuant to 1 Tex. Admin. Code § 155.57, because the pleadings, affidavits, materials obtained by discovery, admissions, matters officially noticed, stipulations, or evidence of record show there is no genuine issue as to any material fact and that the Commission is entitled to a decision in its favor as a matter of law.
  6. The term “lost time,” as used in 28 Tex. Admin. Code § 164.1(b)(11), means any time that an employee is unable to work due to a work injuryCregardless of whether the employee was scheduled to work during the time period.
  7. The injuries to___. And___ during 2001 were properly included as “lost time” injuries in determining whether NTMWD was a hazardous employer.
  8. NTMWD was properly designated a hazardous employer based upon its employee injury frequency during the period October 1, 2000, through September 30, 2001.

ORDER

IT IS ORDERED that the Texas Workers’ Compensation Commission’s designation of North Texas Municipal Water District as a hazardous employer, based on the audit time period of October 1, 2000, through September 30, 2001, is upheld.

Signed April 26, 2004.

CRAIG R. BENNETT
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Tex. Labor Code § 408.082(a)-(b).
  2. Tex. Labor Code § 408.082(b)-(c).
  3. See Combined American Ins. Co. v. Morgan, 214 S.W.2d 145 (Tex.App.BDallas 1948, no writ).
  4. It should be noted that the ALJ’s example is not an extreme scenario either, as it is similar to the situation with the two employees in issue in this case. Each worked an alternate schedule and missed the equivalent of at least nine 8-hour workdays. Thus, if each of these employees had worked a regular 8-hour-per-day, five-days-per-week schedule, their injuries would indisputably count for purposes of the hazardous employer designation.
  5. See Barshop v. Medina County Underwater Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996); Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 248-249 (Tex. 1991); C&H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 322 at fn. 5 (Tex. 1994); Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983).
  6. TWCC Ins. Fund v. Del Industrial, Inc., 35 S.W.3d 591, 593-594 (Tex. 2000).
  7. There is precedent from other states supporting such a conclusion. For example, the Arizona Supreme Court has correlated the 7-day waiting period for determining payment of workers’ compensation payments to the calculation of “lost time” cases, determining that calendar days, as opposed to work days was to be used. Tartaglia v. Industrial Comm’n of Arizona, 866 P.2d 867 (Ariz. 1994) (the court of appeals construed the "seven days" language in A.R.S. § 23-1062(B) to refer to the individual employee’s working days, as opposed to calendar days. Because this interpretation has a significant impact on the number of "no lost time" cases in the state, we granted review to determine the meaning of the statute. We hold that the seven-day waiting period in §§ 23-1062(B) refers to calendar days and not to working days.”) (emphasis added).
End of Document
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