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Title:
453-04-3808-c1
Date:
November 4, 2004

453-04-3808-c1

November 4, 2004

DECISION AND ORDER

The Texas Workers' Compensation Commission (Commission) seeks an administrative penalty against ___ (Respondent) based on the allegation that he had failed to notify his workers' compensation carrier, Zurich American Insurance Company (Zurich), that he had returned to work, earning income and continuing to collect Supplemental Income Benefits (SIBs). Though duly notified of the hearing and the allegations against him, Respondent failed to appear. As a result, Staff requested a default judgment. The Administrative Law Judge (ALJ) concludes that the Commission proved Respondent committed the violations as alleged in the notice of hearing and that he should pay the recommended administrative penalty and reimburse Zurich.

I. JURISDICTION AND VENUE

The State Office of Administrative Hearings (SOAH) has jurisdiction over this matter pursuant to §415.034 of the Texas Workers' Compensation Act (the Act), TEX. LABOR CODE ANN. ch. 401 et seq. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV'T CODE ANN. ch. 2001, as provided in § 415.034 of the Act.

II. STATEMENT OF THE CASE

A hearing in this matter convened and closed on September 9, 2004, before Gary Elkins, a SOAH ALJ. The Commission appeared and was represented by Yvonne Williams, Chief - APA Litigation. Respondent failed to appear despite being properly notified of the hearing, as set out in more detail in the Findings of Fact.

The Commission presented evidence that Respondent secured employment without notifying his workers' compensation insurance carrier, Zurich. The Commission also presented evidence indicating that Respondent was aware of the notification requirement. Based on the evidence presented, the ALJ concludes the alleged misconduct occurred. Consequently, Respondent should be assessed an administrative penalty of $1,000.00 and be ordered to reimburse the Zurich in the amount of $2,999.24.

III. FINDINGS OF FACT

  1. On ___, Respondent, ___, filed an Application for Supplemental Income Benefits (Application). The Qualifying Period covered by the application, as reflected in Block 4 of the application, was August 7, 2002, through ___.
  2. On the Application, Respondent did not answer the question, "Did you earn any wages or have any job offers during the qualifying period shown in Block 4?"
  3. On the Application, Respondent did not answer the question, "If you are not currently working, are you able to work in any type of job in any capacity?"
  4. From August 28, 2002, to December 18, 2002, Respondent received $8,511.13 in income from his employment with ___.
  5. While Respondent was employed with ___, he received $6,470.12 in Supplemental Income Benefits (SIBs) from his workers' compensation carrier, Zurich American Insurance Company (Zurich).
  6. Respondent did not notify Zurich that he had returned to work.
  7. While Respondent was employed with ___, he was overpaid SIBs in the amount of $2,999.24.
  8. Respondent knowingly or intentionally concealed a material fact for the purpose of obtaining workers' compensation benefits.
  9. Notice of the hearing was mailed to Respondent on January 16, 2004. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
  10. Administrative Law Judge (ALJ) Gary Elkins convened and closed a hearing on September 9, 2004. The Commission appeared and was represented by Yvonne Williams, Chief - APA Litigation. Respondent failed to appear.

IV. CONCLUSIONS OF LAW

  1. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to Tex. Labor Code Ann. (Code) § 415.034.
  2. Based on the Findings, Respondent violated §415.008(a) of the Code.
  3. Based on the Findings, Respondent must reimburse Zurich in the amount of $2,999.24, plus interest, in accordance with §415.008(c) of the Code.
  4. Based on the Findings and Conclusion 2, Respondent should pay a reasonable administrative penalty of $1,000.00.

ORDER

IT IS ORDERED that ___ is liable for and shall repay to Zurich American Insurance Company the sum of $2,999.24, plus interest, as provided in Tex. Labor Code Ann. § 415.008(c).

IT IS FURTHER ORDERED that ___ pay to the Texas Workers' Compensation Commission an administrative penalty in the amount of $1,000.00.

Signed November 4, 2004.

GARY W. ELKINS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

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