Income Benefit Issues in Texas Workers’ Compensation Cases–Texas Workers’ Compensation Manual

Overview

There are four different types of income benefits; they are TIBs, IIBs, SIBs, and LIBs. Income benefits begin to accrue on the eighth day of disability. TIBs are paid for all periods of disability until disability ends or MMI is reached. Section 408.101; Rule 129.2. A carrier stops TIBs payments when an authorized doctor certifies that the IW has reached MMI, and the IC begins payment of IIBs. Once an IW is placed at MMI and assigned an IR, the IW is entitled to IIBs at a rate of three weeks of benefits for each percentage point of impairment. Section 408.121. Only IWs with an IR of 15% or greater are eligible to qualify for SIBs at the end of the IIBs period. Finally, if the IW’s compensable injury meets one of the requirements listed in Section 408.161, the IW is entitled to LIBs.

 

Income Benefit Rate Calculation. (I01)
Existence/Duration Disability Raised by Allegation of BFOE. (I02)
Existence/Duration Disability Raised by Other Evidence. (I03)
· Dates of Disability
Income Benefits Accrual Date. (I04)
Date of MMI. (I06)
Impairment Rating. (I07)
RME Request/Failure to Attend. (I08)
Dispute of Designated Doctor MMI Date. (I10)
Dispute of Designated Doctor IR. (I11)
IR Finality/90 Day Dispute. (I12)
Renewed Entitlement to SIBs Based on Allegation (I13) of Discharge with Intent to Deprive.
Entitlement to Acceleration or Advance. (I14)
Reduction/Suspension (IIBs or SIBs) for Contribution from Prior Compensable Injury (I15).
Reduction/Suspension to Recoup Overpayment. (I16)
Entitlement to Commutation of IIBs. (I17)
Abandonment of Medical. (I18)
Reduction/Suspension for Statutory Liens. (I20)
Entitlement to LIBs. (I22)
Failure to Attend Designated Doctor Appointment. (I24)
Entitlement to Multi-Employer Benefits. (I25)
SIBs (I31 – I42)
· SIBs/Initial (First) Quarter. (I31)
· SIBs/Subsequent Quarters. (I32-I39)
· SIBs/Loss of Entitlement. (I40)
· SIBs/Timely Filing of SIBs App. (I41)
· SIBs/Carrier Timely Dispute. (I42)
RME/RTW Dispute. (I50)
RME/MMI Dispute. (I51)
Designated Doctor-Medical Condition. (I52)
Other Income Benefits. (I00)

Income Benefit Rate Calculation (I01)

Income benefits are calculated based upon the IW‘s AWW. The Division computes the State maximum and minimum income benefit amounts on an annual basis. See Sections 408.061 and 408.062. In general, income benefits have a maximum and minimum weekly amount. See Section 130.102(f) dealing with the calculation of SIBs. Note that it doesn’t mention a minimum SIBs amount. Also see Section 128.7(d)(3) which deals with school district employees. [Cross-reference: Amount of average weekly wage (W01)].

Existence/Duration/Disability Raised by Allegation of Bona Fide Job Offer (I02)

While closely related, the issues of disability and bona fide offer of employment (BFOE) raise two separate and distinct legal questions. APD 012077. Disability deals with an IW‘s inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the IW’s pre-injury wage. Section 401.011(16). [Cross-reference: Existence/duration disability raised by other evidence (I03)]. BFOE deals with the IC‘s right to reduce TIBs based upon a properly tendered job offer to the IW. Section 129.6(g).

Whether there has been a BFOE is a separate issue from whether the IW has disability. An IC that is claiming it is entitled to reduce TIBs based upon a BFOE must specifically, and properly, raise the issue if it wants the HO to determine if there has been a BFOE. BFOE is not subsumed in the issue of disability. Even if it is found that a valid BFOE exists, the IW may still have disability but the IC will be allowed to deem the wages offered to be post injury earnings (PIE) and will reduce the IW’s TIBs accordingly. Section 408.103(e); Section 129.6(g). When disability and BFOE are both specifically raised as disputed issues, if it is determined that there has not been a valid BFOE tendered, the job offer may still be considered by the fact finder in determining whether the IW has disability. This is so because disability ends if there is employment at the IW’s preinjury wage, meeting the conditions of any medical release, that is reasonably available to the IW and that the IW has not availed himself or herself of such employment opportunity. APD 020352.

BFOE/Contents. Section 129.6(c) contains the requirements for a valid BFOE. To be valid, all information contained in Section 129.6(c) must be included in the offer. APD 010110-s. To be valid, a BFOE must:

(a) Be in writing;
(b) Include a copy of the Work Status Report upon which the offer is being based;
(c) State the location at which the IW will be working;
(d) State the schedule the IW will be working;
(e) State the wages the IW will be paid;
(f) Give a description of the physical and time requirements that the offered position will entail; and
(g) Provide a statement that the employer will only assign tasks consistent with the IW’s physical abilities, knowledge, and skills and will provide training if necessary.

BFOE/Doctor/Work Status Report. Section 129.6(f) sets out the priority of doctors’ opinions on the IW’s ability to return to work and what the appropriate restrictions are in the event there are Work Status Reports ( DWC-73) from more than one doctor. The following is the order of preference that the IC shall use in evaluating an offer of employment:

(a) The opinion of a doctor selected by the Division to evaluate the IW’s work status;
(b) The opinion of the treating doctor;
(c) The opinion of a doctor who is providing regular treatment as a referral doctor based on the treating doctor’s referral;
(d) The opinion of a doctor who evaluated the IW as a consulting doctor based on the treating doctor’s request; and
(e) The opinion of any other doctor based on an actual physical examination of the IW performed by that doctor.

The opinion of a designated doctor who has specifically been appointed by the Division to determine an IW’s ability to return to work pursuant to Section 408.0041(a)(5) is presumed to be correct unless it is overcome by the preponderance of the other medical evidence to the contrary. Section 408.0041(e).

BFOE/Time to Accept/Reject. The IC may deem the offered wages to be PIE on the earlier of the date the IW rejects the offer or the seventh day after the IW receives the offer unless the IW’s treating doctor notifies the IC that the offer made is not consistent with the IW’s work restrictions. If the offer is made by mail, the IW is deemed to have received the offer five days after it was mailed. Section 129.6(g).

BFOE and Disability Distinguished. The IW’s treating doctor released her to modified duty employment as of June 2, 2004, working a maximum of eight hours a day with certain physical restrictions. On June 2, 2004, the IW obtained a job as a parking attendant earning $6.25 an hour and working 27 hours per week. There was no evidence that the reduced hours were due to the IW’s compensable injury as opposed to limited available work hours. On June 7, 2004, the employer issued a “BFOE” at $7.54 an hour as a people greeter. The HO stated that there was no issue of BFOE before him, and that the IW received the job offer after she was already working her new job. The HO determined that the IW had disability from April 24, 2004, through the date of the hearing. On appeal, the IC argued that the HO erred in failing to consider evidence that the employer had offered the IW a BFOE. The AP reversed and remanded the HO’s disability determination noting that it agreed that there was no issue of BFOE before him, but disability was. The AP noted that the Act does not impose on an IW the requirement to engage in new employment while still suffering from some lingering effects of the injury unless such employment is reasonably available and fully compatible with the IW’s physical condition and generally within the parameters of the IW’s training, experience, and qualifications. Because the HO refused to consider the employer’s offer of employment as evidence that the IW had an ability to obtain and retain employment at the preinjury wage simply because a BFOE issue was not before him, the case was remanded to the HO to consider the job offer in the context of disability. APD 042385.

The disputed issues at the CCH were whether the employer made a BFOE and whether the IW had disability. The employer offered the IW modified duty employment based on a TWCC-73 (Work Status Report) issued by the IW’s treating doctor on October 23, 2001. No evidence was presented regarding the wages being offered for the modified duty employment as compaired with the IW’s preinjury AWW, or the duration of the modified duty employment being offered. The IW signed and accepted the offer on October 24, 2001. The IW testified that he only worked the modified duty employment for three days because his pain did not allow him to continue. The HO determined that the modified duty employment offered by the employer was a BFOE, and that the IW did not have disability based only on the BFOE determination. The AP affirmed the BFOE determination and remanded the case to the HO for additional findings on disability. Disability and BFOE are different yet related issues. The mere fact that a BFOE has been issued does not serve to end disability where the offered wages are not equivalent to the preinjury AWW. The evidence was not clearly developed on either how the offered wages compared to the IW’s preinjury AWW, or the duration of the modified duty employment offered. As such, no determination regarding disability could be made.APD 023020.

Section 129.6(c)/All Requirements Met. When a job offer meets all of the requirements set out in Section 129.6(c), the HO may still determine that the offer does not constitute a BFOE because it is not a reasonable offer. Section 129.6(h); APD 020198. Whether such an offer is reasonable so as to constitute a BFOE is a question of fact for the HO to resolve. APD 001791.

BFOE Found. The IW was released to modified duty employment by her treating doctor. On November 8, 2002, the employer extended a job offer which complied with all of the requirements of Section 129.6(c) and the IW accepted it. The IW testified that she had to leave her modified duty employment on November 13, 2002, because of pain from the compensable injury. The IW’s treating doctor took her completely off work on December 9, 2002. The HO determined that the employer had tendered a BFOE and that the IC was entitled to adjust PIE in accordance with the offer. The HO stated that she did not find the IW’s testimony regarding her ability to perform the modified duty employment to be credible. The HO further stated that the medical records did not explain why the IW could not perform the modified duty employment, or what aspects of the same would aggravate her condition. The fact that an IW is taken completely off work does not automatically void a BFOE. Since the HO was not persuaded that the IW could not perform the work provided under the modified duty restrictions of the BFOE, the HO could conclude that the BFOE remained valid and that the IC was entitled to reduce the IW’s TIBs by the amount deemed to be PIE. APD 031290.

BFOE Not Found. The IW’s preinjury schedule was from 2:00 p.m. to 10:00 p.m. because of childcare considerations. The employer tendered a job offer with scheduled hours of 7:00 a.m. until 3:30 p.m., with an additional provision that she work Saturdays from 6:00 a.m. to 2:00 p.m. The IW testified that she attempted to work out an arrangement with her employer that would more closely accommodate the daycare schedule and that she offered to work at a different facility of the employer which was closer. The employer responded that the IW had to work at the facility where she was injured. The HO determined that the employer had made a BFOE, and noted that there is no requirement that the light duty be “temporally convenient” to the IW. The AP reversed and rendered a decision that the employer had not issued a BFOE in conformity with Section 129.6. Section 129.6 does not require an IW to adapt a significantly different schedule than the one on which she was employed at the time of her injury.APD 001502.

Section 129.6(c)/Not All Requirements Met. If all of the requirements of Section 129.6(c) are not met, there can be no BFOE as a matter of law. The following are examples of employment offers which were determined not to be BFOEs:

The employment offer failed to state the location at which the IW would be working as required by Section 129.6(c)(1). APD 041082.

The employment offer failed to state the IW’s work schedule as required by Section 129.6(c)(2). APD 020198.

The employment offer failed to state the wages which the IW would be paid as required by Section 129.6(c)(3). APD 042864.

The employment offer failed to state a description of the physical and time requirements that the position would entail as required by Section 129.6(c)(4). APD 020198.

The employment offer failed to state that the employer will only assign tasks consistent with the IW’s physical abilities, knowledge, and skills and will provide training if necessary. APD 010110-s.

Section 129.6(g) and (h)/When May IC Unilaterally Adjust TIBs. Before an IC may unilaterally adjust TIBs based upon a BFOE, it must first evaluate the offer taking into consideration the factors listed in Section 129.6(e) and (f).

Adjustment Allowed. The IW was employed to do oil changes and sustained a compensable injury on February 8, 2000. The IW’s treating doctor released him to restricted duty on April 6 and July 10, 2000. Pursuant to the July 10, 2000, Work Status Report, the employer tendered a valid BFOE as a service writer. The IW rejected the offer without attempting to do the job, stating that his restrictions precluded him from looking down to write. There was evidence that the orders were written on an “electronic clipboard” that could be held at any height, sitting or standing. The employer next offered the IW a job as a greeter which he turned down on his “attorney’s instructions.” The HO determined that the employer had offered a valid BFOE entitling the IC to adjust TIBs. The HO stated that he was not persuaded by the IW’s assertion that the offered jobs fell outside of his treating doctor’s restrictions.APD 010577.

Adjustment Not Allowed. The IW’s treating doctor referred her to Dr. D for pain management. On April 29, 2004, Dr. D’s physician’s assistant (PA) signed a Work Status Report releasing the IW to work with restrictions. The employer prepared an offer of employment, attached the Work Status Report, and sent it to the IW. The HO determined that the offer of employment was based on a release to return to work not signed or issued by a doctor and therefore, it was not a BFOE and the IC was not allowed to adjust PIE. Rule 129.6 requires that the offer be based upon a doctor’s assessment of the IW’s work status provided that the assessment is made based upon an actual physical examination. Dr. D’s name appeared nowhere on the Work Status Report and a PA is not a doctor.APD 042765.

Existence/Duration of Disability Raised by Other Evidence (I03)

Disability is defined as an IW‘s inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the IW’s pre-injury wage. Section 401.011(16). Before disability can be established, the IW must first prove he or she sustained a compensable injury. APD 023210.

The IW has the burden to prove that disability exists. The existence of disability depends upon whether the IW is earning less money at work as a result of the compensable injury. This means that the IW must show, by a preponderance of the evidence, that the compensable injury is a cause of his or her reduced wages. APD 032579.

There can be many causes for an IW to be unable to earn the pre-injury wage. The IW does not need to prove that the compensable injury is the sole cause of the reduced wages, the IW must only prove that the compensable injury is one of the causes. APD 032851.

After a compensable injury, an IW may have many different periods of disability. Whenever the IW is not working, or is working and earning less than the pre-injury wages because of the compensable injury, disability begins; then, disability will end when the IW begins to earn wages equal to or more than the IW’s pre-injury wage. APD 032725.

Dates of Disability.

When there is a dispute regarding disability, the period in dispute begins the day after the date of the injury and continues through the date of the CCH unless the dates for the periods of disability are included in the statement of the issue. In their decisions, HOs will usually only state the period of disability and not state the periods of no disability. However, any period not stated to be a period of disability in the HO’s decision beginning on the date of injury and continuing through the date of the contested case hearing is presumed to be a period of no disability. Once disability has been litigated through a CCH and an accrual date for income benefits established and finalized, that date cannot be changed through a subsequent CCH. The doctrine of res judicata prevents the relitigation of issues which have been resolved in prior suits. Barr v. Resolution Trust Corp., 837 S.W. 2d 627 (Tex. 1992).

At a CCH held on June 15, 2004, an issue was “Did the [ IW] have disability resulting from an injury sustained on August 20, 2002, and if so, for what periods?” No stipulations were made with regard to the period from August 20, 2002, to January 14, 2004. [At the June 15, 2004 CCH, the IW requested disability from January 14, 2004, through the date of the CCH.] The hearing officer’s decision on June 17, 2004, concluded that the IW had disability from January 14, 2004, through the date of the CCH. The IC appealed the decision, asserting that the IW did not establish disability from January 14, 2004, through the CCH. The IC did not argue that there was prior disability from August 20, 2002, through January 14, 2004. The AP affirmed the HO’s decision. In a subsequent CCH, the primary issue was “What is the date of maximum medical improvement (MMI) pursuant to Section 401.011(30)(B), the expiration of 104 weeks from the date on which income benefits began to accrue?” The IW argued that the issue was res judicata, the beginning date of disability having been established in the prior hearing. The IC claimed that res judicata did not apply, and that the IW had a compensable injury resulting in periods of disability beginning August 21, 2002. The HO determined that the IW had chosen not to litigate the entire period of disability in the prior CCH and that income benefits began to accrue on August 21, 2002, with statutory MMI occurring on August 16, 2004. The AP reversed and rendered a decision that the date that income benefits began to accrue was January 21, 2004, and the date of statutory MMI pursuant to Section 401.011(30)(B) would be January 19, 2006. APD 050120-s.

Evidence That Disability Exists

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO‘sCCH determination regarding disability. For each of these fact circumstances there are cases where a HO reached the opposite result because the HO did not believe the evidence presented by one of the parties.

Restricted Duty Release/Removal From Work. A doctor’s report that an IW cannot work because of the compensable injury is evidence of disability. A doctor’s report that restricts the IW’s activities and prevents the IW from doing the job that he or she did at the time of the injury so that the IW is earning less money than the AWW is also evidence of disability. APD 030927. If an IW has been returned to work with restrictions, the IW does not have to prove that there is no work available which would fit his or her restrictions in order to establish disability. APD 941249. An IW under a restricted duty release does not have to look for work for purposes of establishing disability.APD 020417.

Standard of Review. Whether an IW has disability is a question of fact for the HO to decide. Disability can be proven by the IW’s CCH testimony alone. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e.); APD 032940. However, the testimony of an IW, as an interested party, only raises issues of fact for the HO to resolve and is not binding on the HO. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.-Beaumont 1978, writ ref’d n.r.e.); APD 032579.

The HO is the sole judge of the weight and believability to be given to the evidence presented at the CCH. Section 410.165(a) . The HO is the trier of fact and resolves the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.);Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). For example, depending on the evidence presented, a HO may choose to disbelieve that an IW actually has the physical limitations requiring the restrictions placed upon him or her by any given doctor. APD 023176. This is equally true when a doctor asserts that the IW has no restrictions at all. APD 031749.

Medical Considerations.

Medical Care. Evidence that an IW is still undergoing treatment for the compensable injury can support a claim for disability. APD 032661.

Medication. The HO may consider past, present, and recommended future treatment in determining if disability exists and for what time period. The HO may consider the effects of any medications an IW is taking for the treatment of the compensable injury. APD 92299.

Pain. A HO may consider the level of pain an IW is experiencing, and how that may affect the IW’s ability to work.APD 001437.

Evidence that Disability Does Not Exist.

Abandonment of Medical Treatment. [Cross-references: Abandonment of Medical (I18) (for Texas A&M employees, Section 502.067; for University of Texas employees, Section 503.067; for Department of Transportation employees, Section 505.057)].

Alien Status. An IW’s alien status is not a bar to receiving benefits under the 1989 Act. Commercial Standard Fire and Marine Company v. Galindo, 484 S.W.2d. 635 (Tex. Civ. App.-El Paso 1972, writ ref’d n.r.e.); APD 022258-s. However, if an IW returns to work, even at light duty, and is later terminated, laid off, or quits, and the evidence shows that the IW’s medical condition has not changed, the IW may not establish disability if the sole reason other employment cannot be obtained is the IW’s illegal alien status. APD 000529.

Full Duty Release. If an IW is given a full duty release, the HO may consider that in reaching a determination regarding disability. APD 032215.

Incarceration. Because disability is an economic concept, an IW cannot have disability for any period of time that the IW is incarcerated. This is so because the inability to earn the pre-injury wage is attributable to the incarceration, not the compensable injury. APD 023069.

Resignation. When an IW returns to work under a restricted duty release and later resigns, disability ends if the HO determines that the IW is earning less than the AWW because of the resignation. APD 041917. An IW’s voluntary resignation is a factor that the HO may consider, but resignation does not automatically preclude a finding of disability. APD 021818.

Reasonable Availability of Employment. An IW under a restricted duty release is not required to look for work or prove that work is not available within the restrictions for purposes of establishing disability. However, even if the IW is under a doctor’s restricted medical release to work, disability may end if the IW is able to obtain and retain employment at wages equivalent to the preinjury wage. APD 91045. Evidence to establish an end of disability must show that employment at preinjury wages, meeting the conditions of the medical release, is reasonably available to the IW and that the IW has not availed himself or herself of such employment opportunities. APD 020352. [Cross-reference: Existence/Duration/Disability Raised by Allegation of Bona Fide Offer (I02)].

Retirement. An IW’s voluntary retirement from his or her pre-injury employer is evidence that disability has ended.APD 021818. Retirement is a factor for the HO to consider in determining whether the IW has disability. The mere fact that an IW retires after the date of injury does not automatically preclude a finding of disability after the retirement date. If the IW can prove that the compensable injury is still a cause of the inability to earn pre-injury wages after retirement, disability exists. APD 022499.

Sole Cause. Disability ends if the IC can prove that a non-compensable preexisting condition or intervening injury (or some other factor unrelated to the compensable injury) is the sole cause of the IW’s inability to earn the pre-injury wage. APD 032713. Sole cause is an affirmative defense. APD 971727. Because sole cause is an affirmative defense, an IC that raises sole cause as a defense must specifically plead the issue and has the burden of proof.Texas Employers Insurance Association v. Page, 553 S.W.2d 98 (Tex. 1977); Texas Workers’ Compensation Fund v. Mandlbauer, 988 S.W.2d 750 (Tex. 1999).

Termination. When an IW returns to work under a restricted duty release after the injury and is later terminated, the question becomes whether it is the termination or the injury that causes the inability to obtain or retain preinjury wages. In such a case, an IW’s termination may end disability. APD 032971. Termination for cause does not necessarily preclude disability, but may be considered by the HO in determining why an IW is unable to earn the preinjury wage. Thus, disability continues after termination if a cause of the inability to earn the preinjury wage after termination was the compensable injury. APD 032767.

Unemployment Benefits Application/Payment. An IW’s application for and receipt of unemployment benefits does not necessarily preclude a finding of disability. Aetna Casualty & Surety Co. v. Moore, 386 S.W.2d 639 (Tex. Civ. App.-Beaumont 1964, writ ref’d n.r.e.); APD 032289. Application for and receipt of unemployment benefits are factors which the HO can consider in reaching a disability determination. APD 032129.

Return to Work Guidelines. ICs, health care providers, and employers shall use the disability duration values in the current edition of the MDA as guidelines for the evaluation of expected or average return to work time frames.Section 137.10(a) . The Division return to work guidelines provide disability duration expectancies, and are presumed to be a reasonable length of disability duration. Section 137.10(c) . However, the disability duration values in the guidelines are not absolute values and do not represent specific lengths or periods of time at which an IW must return to work; rather, the values represent points in time at which additional evaluation may take place if full medical recovery and return to work have not occurred. Section 137.10(e). Section 137.10 is effective on or after May 1, 2007. Section 137.10(g).

Disability Periods Prior to May 1, 2007. In her original decision, the HO determined that (1) the IW reached MMI on November 21, 2003; (2) the IW’s IR was 10%; (3) the first certification of MMI and assigned IR became final pursuant to Section 408.123; and (4) the IW had disability beginning June 11, 2002, and ending November 21, 2003. In APD 070139, the AP reversed the HO’s determination that the IW’s disability ended on November 21, 2003 (the date of MMI) as not being supported by the evidence and remanded the case for an ending date of disability that is supported by the evidence. On remand, the HO in her decision dated May 7, 2007, used the MDA in making her determination that the IW had disability beginning June 11, 2002, and ending November 12, 2003. The AP reversed and rendered a decision that the IW had disability beginning June 11, 2002, and ending on August 18, 2004. The AP noted that Section 137.10 was not in effect during any of the claimed period of disability, and held that the HO erred in applying the MDA because (1) the MDA was not in evidence; (2) no notice was given to the parties at either the original CCH or at the time of the decision after remand that the MDA would be considered; and (3) the entire period of disability at issue was prior to the May 1, 2007 effective date of Section 137.10. APD 071087-s .
Disability Period Beginning Prior to and Ending After May 1, 2007. The HO determined that the IW sustained a compensable injury on July 9, 2006 and had disability from August 16, 2006 through October 16, 2006. The IW appealed, arguing that the HO used an arbitrary period of disability set forth in the current edition of the MDA rather than rely on the medical evidence. In her decision the HO referenced both the MDA and the ODG stating that the MDA and ODG indicate it is not appropriate to determine the IW had sustained the full extent of disability alleged. The HO also referenced that the “guidelines contemplate that an injured worker in a physically demanding job, such as claimant described, would be expected to be off work a maximum of approximately two months for a sprain/strain injury to the neck or back.” The IW had previously been examined by a DD to determine (1) the extent of the compensable injury; (2) whether the IW’s disability is a direct result of the work-related injury; and (3) the ability of the IW to return to work. The DD concluded that the IW’s injury is directly caused by her on the job injury and that the IW is able to return to work in a light duty capacity with an FCE to consider what type of duties are appropriate. The AP reversed and remanded the case because the HO failed to make a finding that a preponderance of the evidence was contrary to the DD’s report. The AP noted that although Section 137.10 provides the MDA shall be presumed to be a reasonable length of disability duration, the rule clarifies that the MDA provides disability duration expectancies and is not an absolute value and does not represent specific lengths or periods of time at which an IW must return to work. Regarding the HO’s use of the MDA, the AP stated that although the beginning date of disability was prior to May 1, 2007, the effective date of the Division’s adoption of the MDA, a portion of the claimed disability period extended beyond May 1, 2007, and therefore it was not error for the HO to consider the return to work guidelines in making her disability determination. On remand the HO was to inform the DD that the Division has adopted the MDA as its return to work guidelines, but that factors influencing disability durations as mitigating circumstances may be considered. The AP ruled that disability duration values in the MDA are tied to job classifications and that consideration of the MDA requires knowledge of the specific conditions that are part of the compensable injury in order to determine the duration values listed. Thus, the HO was to inform the DD of the IW’s specific job classification (sedentary, light, medium, heavy, or very heavy) and to ask the DD to answer the extent of injury question with more specificity. APD 071108-s.

Income Benefits Accrual Date (I04)

The accrual date for income benefits is the date the IW is first entitled to receive payment of income benefits. Income benefits do not begin to accrue until the eighth day of disability. Section 124.7(b) ; APD 032435. [Cross-reference: Existence/Duration of Disability Raised by Other Evidence (I03) ]. For dates of injury occurring before September 1, 2005, if the disability continues for four weeks or longer from the date the disability began, the income benefits shall be computed from the date disability began. For dates of injury occurring on or after September 1, 2005, if the disability continues for two weeks or longer after the date the disability begins, the income benefits shall be computed from the date the disability begins. Section 408.082(c) .

Date of MMI (I06) [Cross-reference: Impairment rating (I07)]

The date of MMI is significant for several reasons. Once an IW reaches MMI, he or she is no longer entitled to TIBs. Section 408.101(a). An IW cannot be assigned an IR until he or she reaches MMI. Section 130.1(b)(2).

MMI means the earlier of:

(A) 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;

(B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or

(C) the date determined as provided by Section 408.104 (relating to extension of the 104 weeks due to spinal surgery). Section 401.011(30); Section 130.1(b)(1).

An IW may be found to be at the statutory date of MMI (the expiration of 104 weeks from the date on which income benefits begin to accrue) even though he or she requires additional and/or continuing medical care and treatment. An IC may not stop paying for required medical care related to the IW’s work-related injury merely because the IW has reached MMI. Section 408.021.

Certification of MMI. The information in this section only relates to the certification process. The dispute process is contained in the section that follows.

Authorized Doctor. Section 130.1(a) provides in part that only an authorized doctor may certify MMI. The following may be authorized to certify MMI if Section 130.1(a)(1)(B) is complied with:

(i) the IW’s treating doctor (or a doctor to whom the treating doctor has referred the IW for evaluation of MMI and/or IR in the place of the treating doctor, in which case the treating doctor is not authorized);
(ii) a designated doctor; or
(iii) a RME doctor selected by the IC and approved by the Division to evaluate MMI and/or IR after a designated doctor has performed such an evaluation.

Doctor Authorized to Certify MMI. The HO refused to adopt Dr. D’s certification solely because Dr. D was a chiropractor. The AP reversed and remanded the case to the HO for further explanation as to why he refused to adopt Dr. D’s certification. There was no allegation or evidence that Dr. D was not an authorized doctor. APD 042239.

Doctor Not Authorized to Certify MMI. The designated doctor was no longer on the Designated Doctor List; however, a letter of clarification from the Commission (now Division) was sent to the designated doctor asking whether he should change his certified MMI date and assigned IR because the IW had surgery after the designated doctor examined the IW. The designated doctor responded that his opinion had not changed. Relying on the designated doctor’s response to the letter of clarification, the HO adopted the designated doctor’s certification. The HO’s decision was reversed and remanded. At the time the designated doctor responded to the letter of clarification he was no longer authorized to act in that capacity because he was no longer on the Designated Doctor List as required by Section 180.21(a) (now Section 180.21(b)). Because the doctor was not authorized to act as the designated doctor at the time he responded to the letter of clarification, the case was remanded for the appointment of a second designated doctor. APD 040683.

Date Not Prospective. The date of MMI may not be prospective or conditional; however, it may be retrospective to the date of the certifying exam. Section 130.1(b)(4)(C)(i) and (ii).

The treating doctor’s report dated March 16, 1994, certified that the IW would reach MMI on March 21, 1994, with a 19% IR. The HO correctly determined that this report could not be adopted because it contained a prospective MMI date. Ausaf v. Highlands Insurance Company, 2 S.W.3d 363 (Tex. App.-Houston [1st District] 1999, pet. denied).

Physical Examination. A certification of MMI must be based upon a complete medical examination of the IW for the explicit purpose of determining MMI. Section 130.1(b)(4)(B).

The IW’s treating doctor certified that he was at MMI on January 21, 2000, with a 4% IR. The IW disputed the certification and a designated doctor was appointed. The designated doctor examined the IW, and determined that he reached MMI on March 13, 2000, with a 5% IR. The IW underwent a series of injections and physical therapy in July 2000, and testified that his condition improved by 60%. On August 9, 2000, the designated doctor was sent additional medical reports and asked if they changed his opinion regarding MMI and IR. On August 14, 2000, without physically re-examining the IW, the designated doctor responded changing his date of MMI to August 14, 2000, and maintaining the 5% IR. The HO gave the designated doctor’s amended report presumptive weight and adopted it. The case was reversed and remanded back to the HO because the amended certification of MMI was done without a medical examination in violation of Section 130.1(b)(4)(B). APD 010297-s.

Signed. In order to be valid, a certification of MMI and IR must be signed by the certifying doctor. The certifying doctor may use a rubber stamp signature or an electronic facsimile signature of the certifying doctor’s personal signature. Section 130.1(d)(1)(A).

The IW was examined by a referral doctor for the purpose of determining MMI and IR. The examining doctor placed the IW at MMI as of the date of the examination with a 5% IR. The report containing the certification was not signed by the certifying doctor, but instead an unidentified individual signed the report “for” the certifying doctor and initialed the signature. This same individual also signed the treating doctor’s name indicating agreement with the certification. The HO determined the certification was valid and had become final because the individual that signed and initialed the document on the examining doctor’s behalf was an “apparent agent” of the certifying doctor. The AP reversed and rendered a decision that the certification was not valid, and therefore could not become final. Section 130.12(c)(3)provides that in order for a certification to be valid, it must contain the signature of the authorized certifying doctor. Section 130.1(d)(1)(A) defines what constitutes a valid signature. There are no provisions that allow an “agent” to sign the certification for the certifying doctor. APD 042044-s.

Dispute of MMI. A party must dispute the first valid MMI date certified by an authorized doctor within 90 days of written notice through verifiable means. The notice must contain a copy of a valid DWC-69. If a party fails to so dispute the certified MMI date may become final. [Cross-reference: IR finality/90 day disputes (I12)].

Extension of MMI. [Cross reference: (S01), (S02) Spinal Surgery]
An extension of MMI under Section 408.104 applies only to claims based on a compensable injury occurring on or after January 1, 1998, and only where spinal surgery has been approved or actually occurred in the 12-week period prior to the IW’s statutory MMI date. Section 408.104; §126.11(a). The Division looks to the factors listed in §126.11(f) in determining approval or denial of an extension request. See §126.11 for specific requirements in requesting an extension of MMI under Section 408.104.

Invalid Extension. The IW had spinal surgery on 9/13/00, and Commission (now Division) personnel believed the IW would reach statutory MMI on 10/25/00. Commission personnel assisted the IW in timely submitting a request to extend his MMI pursuant to Section 408.104. On 11/29/00, the Commission issued an order extending the IW’s MMI to 2/10/01 and notifying both parties of the right to dispute by requesting a BRC within 10 days; neither party disputed the order. The IW later discovered a mistake had been made in calculating his statutory MMI, and the correct date should have been 4/28/01. The Commission sent a letter dated 4/24/01 correcting the statutory MMI date to 4/28/01. The HO determined the IW reached statutory MMI on 4/27/01 by operation of law. The IC appealed, arguing that the 11/29/00 order established the MMI date because the IW failed to dispute the order. The AP affirmed the HO, stating it would be error to allow an erroneously extended MMI date prior to the actual statutory MMI date. APD 011840-s.

Valid Extension. The parties stipulated at the CCH that the claimant sustained a compensable injury on 11/10/00; that the IW’s statutory MMI was 11/15/02; that the IC approved spinal surgery on 10/23/02; and that the IW had spinal surgery on 11/4/02. The HO extended the IW’s MMI for six months based on medical evidence that recovery time from multilevel spinal fusions vary from six months to one year. The AP affirmed the HO’s determination. APD 032328.

Dispute of Extension Approval. A party wishing to dispute the extension of statutory MMI must file a request for a BRC under§141.1 within ten days after the date the order is received. §126.11(g). Failure to timely file a request for a BRC results in waiver of the right to dispute the extension order. §126.11(h). This is true even if the Division does not issue the extension order within 10 days as required under §126.11(b). APD 042275-s.

MMI Dispute. §126.11(i) discusses the effect of a doctor’s certification of MMI dated between the date the Division extension order was issued and the extended date of MMI specified in the Division order. However, a Division extension order that is not disputed will supercede all certifications of MMI done prior to the issuance of the Division order. APD 020187-s.

Impairment Rating (I07)

IR means the percentage of permanent impairment of the whole body resulting from a compensable injury. Section 401.011(24); Section 130.1(c)(1) . Impairment means any anatomic or functional abnormality or loss existing after MMI that results from a compensable injury and is reasonably presumed to be permanent. Section 401.011(23). The doctor evaluating permanent impairment must consider the entire compensable injury. APD 043168. If the doctor evaluating impairment determines there is no permanent impairment from the compensable injury a zero percent IR or no impairment is assigned. APD 991083; Section 130.1(c)(1). The doctor assigning the IR shall provide a description and explanation of specific clinical findings related to each impairment, including 0% ratings. Section 130.1(c)(3)(D)(i).

IIBs are based on the IW‘s IR. Section 408.121(b) . IIBs begin on the day after the IW reaches MMI and end on the earlier of: a period computed at the rate of three weeks for each percentage point of impairment; or the IW’s death. Section 408.121(a). IIBs are paid at 70% of the IW’s AWW, subject to Sections 408.061 and 408.062 relating to maximum and minimum weekly income benefits. Section 408.126. [Cross reference: Amount of AWW (W01)]. An IW may not recover IIBs unless evidence of impairment based on an objective clinical or laboratory finding exists. Section 408.122.

IIBs may be reduced for contribution under Section 408.084. [Cross-reference: Reduction/Suspension of IIBs or SIBs for Contribution from Prior Compensable Injury (I15)].

MMI must be certified before an IR is assigned. Section 408.123(a); 130.1(b)(2). [Cross-reference: Date of MMI (I06)]. Only permanent impairment may be rated. APD 030091-s. The Guides 4th Ed. p. 3/94 describe a permanent impairment as one that is “stable, unlikely to change within the next year, and not amenable to further medical or surgical therapy.” An IR’s assignment shall be based on the IW’s condition as of the MMI date, considering the medical record and the certifying examination. Section 130.1(c)(3); APD 040313-s; APD 040998-s. A doctor who certifies that an IW has reached MMI shall assign an IR for the current compensable injury using the rating criteria contained in the appropriate edition of the Guides. Section 408.124; Section 130.1(c)(2).

Appropriate AMA Guides Edition. Section 130.1(c)(2) discusses the appropriate Guides edition to use in determining the IR for a compensable injury. The appropriate edition to use for certifying examinations conducted on or after October 15, 2001, is the Guides 4th Ed. Section 130.1(c)(2)(B)(i). However, the Guides 3rd Ed. is the appropriate edition to use if at the time of the certifying examination there is a certification of MMI by a doctor made prior to October 15, 2001, which has not been previously withdrawn through agreement of the parties or previously overturned by a final decision. Section 130.1(c)(2)(B)(ii); APD 061227.

The Guides 4th Ed.

Adjustments for Effects of Treatment or Lack of Treatment. The DD assigned 1% impairment for “lack of treatment” referencing page 2/9 of the Guides 4th Ed. based upon his belief that the IW did not receive as much physical therapy as called for by the ODG. The HO adopted the DD’s rating, which included the 1% impairment for “lack of treatment.” The AP reversed the HO’s IR determination and remanded the case back to the HO. The AP determined that the Guides 4th Ed. do not consider whether an IW has undergone the requisite number of physical therapy session in assessing additional impairment under the section the DD relied upon. The AP therefore held that the Guides 4th Ed. do not allow for assessment of additional impairment under the facts of this case. APD 090692-s.

Advisories 2003-10 and 2003-10B. The issue at the CCH was the IW’s IR. The IW sustained a compensable back and neck injury. The IW had a multi-level cervical fusion prior to the date of MMI. The DD certified that the IW reached MMI with a 10% IR, assessing 5% impairment for the neck injury under DRE Cervicothoracic Category II and 5% impairment for the back injury under DRE Lumbosacral Category II. In response to a LOC the DD changed the IR to 25% placing the IW in DRE Cervicothoracic Category IV based on Division Advisory 2003-10. The HO determined that the IW’s IR is 25% and the IC appealed. The AP reversed the HO’s decision and rendered a decision that the IW’s IR is 10%. Division Advisories 2003-10 and 2003-10B were declared invalid and their application an ultra vires act in Texas Dep’t of Ins. v. Lumbermens Mutual Cas. Co., 212 S.W.3d 870 (Tex. App.-Austin 2006, pet. denied). The Texas Supreme Court denied the petition for review in the Lumbermens case on June 15, 2007. Therefore, the adoption of an IR that is based on the Advisories is legal error and must be reversed. Prior APDs applying the Advisories to rate impairment for spinal fusion have been overruled by the Lumbermenscase. APD 071023-s.

Commissioner’s Bulletin #B-0033-07 dated July 18, 2007, withdrew Advisories 2003-10 and 2003-10B.

Conflict Between General Directions and Figures. Where a conflict exists between the general directions and the figures in the Guides, the general directions control. In this case the IW had a wrist injury and the DD rated radial and ulnar deviation relying on Figure 29, which rates impairment based on 5 degree increments. However, the general directions for rating radial and ulnar deviation provide that the measurements be rounded to the nearest 10 degrees. Because the general directions control, the measurements for radial and ulnar deviation should be rounded to the nearest 10 degrees, not 5 degrees as provided in Figure 29. APD 022504-s.

General Directions Point Elsewhere for Further Clarification. The HO’s determination of the IW’s IR was based solely on the fact that the atrophy found was not greater than 2 centimeters but rather 2 centimeters exactly. In reversing and remanding the HO’s determination, the AP noted that although the general directions control when a conflict exists between the general directions and the figures in the Guides 4th Ed., in the instant case the general directions for rating lumbosacral radiculopathy on page 3/102 of the Guides 4th Ed. specifically refer to differentiator 3 in Table 71 on page 3/109 of the Guides 4th Ed., which gives a further description of “Decreased circumference, atrophy.” Differentiator 3 clarifies that for atrophy to be a significant sign of radiculopathy, for which the IW is entitled to receive a rating, the atrophy must be spine-injury-related and the measurements show loss of girth of 2 centimeters or more above or below the knee. The AP clarified that to receive a rating for radiculopathy the IW must have significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of 2 centimeters or more above or below the knee, compared to measurements on the contralateral side at the same location, and the atrophy or loss of relevant reflexes must be spine-injury-related. APD 072220-s.

Guarding as a Differentiator. Table 71, page 109 of the Guides 4th Ed. states “[p]aravertebral muscle guarding or spasm or nonuniform loss of [ ROM], dysmetria, is present or has been documented by a physician.” [Emphasis added]. Because the word “or” is placed between guarding, spasm, and nonuniform loss of ROM, those terms are read as being separate from each other, and the Guarding portion of Table 71 is interpreted as saying guarding can be used as a differentiator if guarding or spasm or nonuniform loss of ROM is present or has been documented by a physician, not that all three items of guarding, spasm, and nonuniform loss of ROM must be present or documented by a physician before it can be used as a differentiator. APD 080966-s.

Hernia. To assess an impairment for a hernia-related injury under Table 7 “Classes of Hernia-related Impairment”, page 10/247 of the Guides 4th Ed., there must be a palpable defect in the supporting structures of the abdominal wall. APD 072253-s.

Lower Extremity Impairment. The IW sustained a compensable supracondylar fracture of the left knee. The DD measured 48 degrees of angulation and used a DRE under Table 64 of the Guides 4th Ed. and assessed a 28% IR for a displaced supracondylar fracture. The DD was advised in a LOC that an angulation over 20 degrees for a supracondylar displaced fracture results in a maximum whole person IR of 20%; however, the DD did not change his IR of 28%. The RME doctor and another doctor measured 3 degrees of angulation and the RME doctor assessed an 8% IR under Table 41 using the ROMM. The HO determined that the IW’s IR was 20%. The AP reversed the HO, finding that the HO erred in determining that the IW’s IR is 20% because no doctor had certified a 20% IR, and rendered a decision that the IW’s IR is 8% as certified by the RME doctor. The AP also held that the DD erred in determining the IW’s 28% IR, because the plain language of the Guides 4th Ed. indicates that between 5 to 9 degrees of angulation results in 5% whole person impairment; between 10 to 19 degrees of angulation results in 10% whole person impairment; and 20 degrees or more of angulation results in 10% whole person impairment plus 1% whole person impairment for each degree of angulation up to 20% maximum whole person impairment.APD 061479-s.

Mental Impairment. Mental and behavioral disorders may be rated for impairment under the Guides 4th Ed. Although Chapter 14 does not provide impairment percentages in the Table entitled “Classifications of Impairments Due to Mental and Behavioral Disorders”, the certifying doctor may consider Chapter 4 relating to the Nervous System to calculate the impairment percentage for mental and behavioral disorders from Chapter 14. Chapter 4 at page 142, first column, provides that the criteria for evaluating the emotional and behavioral impairments in Table 3 of Chapter 4 relate to the criteria for mental and behavioral impairments in Chapter 14. APD 051277. An IR for a mental or behavioral disorder must be supported by objective clinical or laboratory findings. APD 961699. The mental or behavioral disorder must be permanent to be rated for impairment. APD 030622.

Skin Impairment. Impairment for a skin disorder under Chapter 13 may be combined with impairment for loss of ROM under Chapter 3 using the CVC to determine total impairment. APD 031168.

Impairment for a skin disorder under Chapter 13 may be combined with peripheral nerve impairment under Chapter 4 using the CVC to determine total impairment. APD 071599-s.

Spine Impairment. The evaluator assessing the IW’s spine for assigning an IR should use the Injury Model, which is also called the DRE Model. The conditions within the DRE categories are listed in Table 70 on page 108 of the Guides 4th Ed. Under the Guides 4th Ed., if a doctor determines that an IW meets the criteria to be placed in a particular DRE category, the doctor is to assign the IR set out in the Guides for that particular DRE category. APD 032336-s.

In the event the evaluating doctor must choose between two or more DRE categories that may apply, the ROMM may be used in conjunction with the DRE Model as a “differentiator” to make that choice. APD 022509-s. The evaluating doctor may not merely choose a rating between DRE categories. APD 032336-s.

If none of the categories of the DRE Model are applicable the evaluating doctor may use the ROMM for assigning the IR. The doctor’s report must have a specific explanation why the DRE Model could not be used. APD 030288-s. A comment that the evaluator merely prefers “to use the Model that he or she feels is most appropriate” is insufficient justification for using the ROMM rather than the DRE Model.” APD 030288-s.

The HO’s determination of the IW’s IR was based solely on the fact that the atrophy found was not greater than 2 centimeters but rather 2 centimeters exactly. In reversing and remanding the HO’s determination, the AP noted that although the general directions control when a conflict exists between the general directions and the figures in the Guides 4th Ed., in the instant case the general directions for rating lumbosacral radiculopathy on page 3/102 of the Guides 4th Ed. specifically refer to differentiator 3 in Table 71 on page 3/109 of the Guides 4th Ed., which gives a further description of “Decreased circumference, atrophy.” Differentiator 3 clarifies that for atrophy to be a significant sign of radiculopathy, for which the IW is entitled to receive a rating, the atrophy must be spine-injury-related and the measurements show loss of girth of 2 centimeters or more above or below the knee. The AP clarified that to receive a rating for radiculopathy the IW must have significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of 2 centimeters or more above or below the knee, compared to measurements on the contralateral side at the same location, and the atrophy or loss of relevant reflexes must be spine-injury-related. APD 072220-s.

The significant clinical signs of radiculopathy may be verified by electrodiagnostic testing; however, electrodiagnostic testing indicating radiculopathy is insufficient by itself to assign impairment for radiculopathy in the absence of significant signs of radiculopathy (loss of relevant reflexes or unilateral atrophy). APD 051456.

In using the DRE Model, the doctor should select the region primarily involved and rate that region. If the injury is primarily to the cervical spine the rating would be for cervicothoracic spine impairment; if the injury was primarily to the thoracic spine the rating would be for thoracolumbar spine impairment; and if the injury is primarily to the lumbar spine the rating would be for lumbosacral spine impairment. If more than one spine region is impaired, the doctor determines the impairment of the other regions and combines the regional impairments using the CVC to express the total spine impairment. Guides 4th Ed. p. 95 and 101; APD 051306-s.

Table 71, Guides 4th Ed., p. 109, lists DRE Impairment Category Differentiators. The Guarding portion of Table 71 states “muscle guarding or spasm or nonuniform loss of ROM.” (Emphasis added) By placing the word “or” between guarding, spasm and nonuniform loss of ROM, those terms are in the disjunctive. The AP held that guarding can be used as a differentiator if guarding or spasm or nonuniform loss of ROM is present or has been documented by a physician, not that all three items of guarding, spasm and nonuniform loss of ROM must be present or documented by a physician before it can be used as a differentiator. Further, normal ROM does not preclude awarding a 5% IR for guarding under DRE Cervicothoracic Category II: Minor Impairment under the Guides 4th Ed. APD 080966-s.

Syncope. Syncope is rated for impairment under Table 22 entitled “Impairments Related to Syncope or Transient Loss of Awareness” on page 4/152 of the Guides 4th Ed., and not under Table 5 on page 4/143. APD 042912-s.

Upper Extremity Impairment. Upper extremity impairment for loss of ROM of the shoulder may be combined with upper extremity impairment for a distal clavicle resection arthroplasty under Chapter 3 using the CVC and the combined upper extremity impairment is then converted to whole person impairment. APD 071283-s.

Upper extremity impairments for a limb are combined using the CVC to determine the total upper extremity impairment and then the total upper extremity impairment is converted to a whole person impairment. APD 061569-s. (Please note that if both upper extremities are involved, derive the whole person impairment percent for each and then combine both values using the CVC. See Guides 4th Ed. page 66.)

RSD/CRPS. Impairment secondary to causalgia and RSD is derived as set forth on page 3/56 of the Guides 4th Ed. entitled “Causalgia and RSD”, not from Table 17 “Impairment of Upper Extremity Due to Peripheral Vascular Disease” on page 57 of the Guides 4th Ed. APD 052243-s.

Certifying Doctor. Only an authorized doctor may determine whether an IW has permanent impairment, and assign an IR if there is permanent impairment. Section 130.1(a). Authorized doctors are described in Section 130.1(a). It should be noted that a DD’s report has presumptive weight and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary. If the preponderance of the medical evidence contradicts the IR contained in the report of the DD chosen by the Division, the Division shall adopt the IR of one of the other doctors. Section 408.125(c); APD 071599-s.

Disputing the IR. [Cross-references: Dispute of DD IR (I11); IR Finality/90-Day Disputes (I12)]

Mistakes in Calculating the IR. The AP has held that a HO may apply a mathematical correction to a certification of IR when doing so merely corrects an obvious mathematical error and does not involve the exercise of judgment as to what the proper figures were. APD 040863. A clerical error made by the doctor in using the CVC of the Guides may also be corrected. APD 041424; Old Republic Ins. Co. v. Rodriguez, 966 S.W.2d 208 (Tex. App.-El Paso 1998, no pet.). A HO may not piecemeal doctors’ reports to assemble an IR. APD 050729-s.

RME Request/Failure to Attend (I08)

Upon request by the IC, or by order of the Commissioner, an IW may be required to submit to a medical examination ( RME) in order to resolve issues regarding: impairment rating; attainment of MMI; extent of injury; compensability; ability to work; and any other similar issue. Sections 408.004, 408.0041, 408.151; Section 126.5. If the IW is receiving his or her health care through a workers’ compensation health care network established under Chapter 1305, Insurance Code, the IC may not request an RME until after the IW has first been examined by a Division designated doctor. Sections 408.004(f) and 408.0041(f). If the IC is not satisfied with the opinion of the Division’s designated doctor, it may then request to have a doctor selected by the IC examine the IW. Section 408.0041(f).

An IC is required to send a copy of the request for medical examination to the IW and the IW’s representative by fax, electronic transmission, or other verifiable means. The IC is also required to maintain copies of the request and proof of its successful transmission. Section 126.5(h).

Notice to Attend

Once the request for an RME has been granted, The Division shall send a copy of the order to the IW, the IW’s representative, and the carrier. Section 126.6(a). The exam must be scheduled within thirty days from the date the order is received. Additionally, the IW is entitled to 10 days advanced notice of the RME. Section 126.6(b).

10 Day Notice Not Required for Rescheduled RME

The IW appeared for the initial RME, scheduled on August 23, 2001, but could not be seen that day because a translator was not available. The RME was rescheduled for September 12, 2001. The IW failed to attend the RME on that date due to transportation issues. A CCH was held to determine whether the IW had good cause for failing to attend the September 12, 2001, RME and, if not, whether the IC could terminate the payments of TIBs. The HO found that the IW did not have good cause, but that the IC was not entitled to suspend benefits because it had failed to give the IW 10 days notice of the examination. The AP reversed and remanded the case, stating that the 10-day notice requirement did not apply to rescheduled RMEs.APD 020108s.

Notice of RME Need Not Be Sent by Verifiable Means

The IW failed to attend an RME appointment scheduled for April 22, 2004. At the CCH the IW testified that she did not receive notice of the RME appointment. The IC presented evidence that the notice had been sent through a private shipper. The HO ruled in favor of the IW because the IC had not sent the notice through verifiable means. This was clear error. Section 126.5(g) requires that a copy of the request for an RME order be sent through verifiable means. Section 126.5(g) does not apply to the notice of the scheduled RME appointment. APD 051193s.

Failure to Attend

An IW who fails to attend an RME without good cause is not entitled to receive TIBs. An IC may suspend payment of benefits during the period for which there is no good cause for failing to attend an RME. Section 408.004(e); Section 126.6(h). The test for whether good cause exists is whether the IW acted as a reasonable, prudent person. An IW acts as a reasonable, prudent person if they act with the degree of diligence which an ordinary person would exercise in the same or similar circumstances. APD 94244. Good cause is a question of fact for the HO to decide. APD 941656. A HO’s determination as to good cause will not be set aside unless the HO acted without reference to any guiding rules or principles. APD 010828.

Good Cause Found

A CCH was held to determine whether the IW had good cause for failing to attend an RME. During the CCH, the IW credibly testified that he failed to appear for the RME scheduled for July 10, 2001, because he did not receive notice of the appointment and that the mail delivery at his apartment complex was unreliable. The evidence showed the IC sent the notice as required. Based upon the IW’s testimony, the HO determined that the IW had good cause for failing to attend the RME. Good cause is a question of fact for the HO to decide. As the HO could have found good cause based on the IW’s testimony, there was no abuse of discretion and the HO’s decision was affirmed. APD 013039.

No Good Cause

The IW did not drive and did not have a vehicle. The IW testified that he arranged to have a friend take him to his RME appointment. On the way to the appointment, the IW’s friend received a call in which the friend was informed that his father was dying or had died. The IW’s friend could not find the doctor’s office and decided to abort the trip and go to the hospital to be with his father. The HO did not believe the IW’s testimony and determined that he did not have good cause for failing to attend the RME thereby allowing the IC to suspend TIBs. Whether the IW had good cause for failure to attend the RME appointment was a question of fact for the HO to resolve. APD 010828.

Failure to Cooperate

An IW who attends an RME, but fails to participate or cooperate during the examination without good cause is not entitled to TIBs. The term “attend” in Section 126.6(h) has been construed to include and require submission to an RME. The IW must actually submit to the examination as opposed to merely attending the examination. APD 022315.

An RME was scheduled for September 15, 2000. On September 14, 2000, the IW rescheduled the RME because she was experiencing a “flare-up” of a digestive disorder. The second RME was scheduled for September 29, 2000. The IW appeared for the RME on that date, but did not feel she could be examined due to her condition. Because the examining RME doctor believed that the IW was attempting to avoid examination, and that any attempts to exam her on September 29, 2000, would be resisted, the RME doctor rescheduled the IW’s examination to November 20, 2000. The HO found that the IW’s failure to submit to the previous two exams constituted a failure to attend the RME and that the IW did not have good cause for doing do. Good cause is a question of fact for the HO to decide. As the HO did not act without reference to any guiding rules or principles, the AP affirmed. APD 010407.

Dispute of Designated Doctor MMI Date (I10)

[Cross-references: Date of MMI (I06); Impairment Rating (I07); Dispute of Designated Doctor MMI Date (I11); RME/MMI Dispute (I51).]

Only an IC, an IW, an IW’s attorney, or an IW’s representative as defined under §150.3(a) may dispute a first valid certified MMI date. §130.12(b)(1). To dispute an IW’s first valid certified MMI date the disputing party must request a BRC pursuant to Section 141.1 or Section 130.12(b)(1), or as an alternative, if a designated doctor has not yet been appointed, request the appointment of a designated doctor to dispute certified MMI date and assigned IR.

Dispute. On January 14, 2004, the IW received written notice of her first certification of MMI and IR assigned by a designated doctor. On April 2, 2004, and within 90 days after written notice was delivered by verifiable means, the IW requested a BRC to dispute the first valid certified MMI date and/or first valid assigned IR. The AP found that the claimant’s request for a BRC was a timely dispute of the first valid certified MMI date and/or first valid assigned IR under §130.12(b)(1). APD 042163-s.

The treating doctor certified a first valid MMI date and assigned a first valid IR for the IW and it was delivered by verifiable means to the IC on November 12, 2003. On December 3, 2003, the IC filed a TWCC-32 requesting an appointment of a designated doctor. The IC completed Sections I and II of the form, and checked the block, “To dispute an assigned date of [MMI] and [IR],” however, the IC did not complete Section III of the form. The AP affirmed the HO‘s decision that the IC filed a TWCC-32 with the Commission on December 3, 2003, sufficient to dispute the first valid certified MMI date and first valid assigned IR pursuant to Rule 130.12(b)(1). APD 043023-s.

Not a Dispute. The Commission-appointed designated doctor examined the IW on January 6, 2004, and issued the IW’s first valid certified MMI date and first valid assigned IR. On January 16, 2004, the IC received the first valid certified MMI date and first valid assigned IR. On January 26, 2004, the IC filed a TWCC-22 Required Medical Examination Notice or Request for Order to have the IW examined by its doctor of choice and the request was approved. On April 28, 2004, after the 90-day period had expired, the IC filed a Request for a BRC. The HO correctly decided that the IC failed to timely dispute the IW’s first valid certified MMI date and first valid assigned IR. A dispute can only be made by requesting a benefit review conference or by requesting the appointment of a designated doctor, if one has not been appointed. APD 041903-s.

Dispute of Designated Doctor Impairment Rating (I11)

[Cross-references: Date of MMI (I06); Impairment Rating (I07); RME/MMI Dispute (I51).]

Only an IC, an IW, an IW’s attorney, or an IW’s representative as defined under Section 150.3(a) may dispute a first valid assignedIR. Section 130.12(b)(1). To dispute an IW’s first valid certified MMI date and/or first valid assigned IR the disputing party must request a BRC pursuant to Section 141.1 or Section 130.12(b)(1), or as an alternative, if a designated doctor has not yet been appointed, request the appointment of a designated doctor to dispute certified MMI date and assigned IR.

Dispute. On January 14, 2004, the IW received written notice of her first certification of MMI and IR assigned by a designated doctor. On April 2, 2004, and within 90 days after written notice was delivered by verifiable means, the IW requested a BRC to dispute the first valid certified MMI date and/or first valid assigned IR. The AP found that the claimant’s request for a BRC was a timely dispute of the first valid certified MMI date and/or first valid assigned IR under §130.12(b)(1). APD 042163-s.

The treating doctor certified a first valid MMI date and assigned a first valid IR for the IW and it was delivered by verifiable means to the IC on November 12, 2003. On December 3, 2003, the IC filed a TWCC-32 requesting an appointment of a designated doctor. The IC completed Sections I and II of the form, and checked the block, “To dispute an assigned date of [MMI] and [IR],” however, the IC did not complete Section III of the form. The AP affirmed the HO‘s decision that the IC filed a TWCC-32 with the Commission on December 3, 2003, sufficient to dispute the first valid certified MMI date and first valid assigned IR pursuant to Rule 130.12(b)(1). APD 043023-s.

Not a Dispute. The Commission-appointed designated doctor examined the IW on January 6, 2004, and issued the IW’s first valid certified MMI date and first valid assigned IR. On January 16, 2004, the IC received the first valid certified MMI date and first valid assigned IR. On January 26, 2004, the IC filed a TWCC-22 Required Medical Examination Notice or Request for Order to have the IW examined by its doctor of choice and the request was approved. On April 28, 2004, after the 90-day period had expired, the IC filed a Request for a BRC. The HO correctly decided that the IC failed to timely dispute the IW’s first valid certified MMI date and first valid assigned IR. A dispute can only be made by requesting a benefit review conference or by requesting the appointment of a designated doctor, if one has not been appointed. APD 041903-s.

IR Finality/90-Day Disputes (I12)

[Cross-references: Date of MMI (I06); IR (I07); Dispute of DD MMI Date (I11); RME/MMI Dispute (I51)]

An IW has only 90 days to dispute a first valid certification of MMI and/or first valid assignment of IR pertaining to the IW after it is delivered to the IW by verifiable means. An IC has only 90 days to dispute a first valid MMI certification and/or first valid IR assignment pertaining to the IW after it is delivered to the IC by verifiable means. If neither the IW nor the IC disputes the first valid certified MMI date and/or first valid assigned IR pertaining to the IW within their respective 90-day period, that first valid certified MMI date and/or first valid assigned IR is final. Section 408.123(e).

The important words and phrases are, “first”, “valid”, “delivered by verifiable means”, “90 days” (90-day period), and “dispute”. All of these are requirements that must be considered to decide whether a certified MMI date and assigned IR have become final under Sections 408.123 and 130.12. In addition, even if all of these requirements were met, there are possible exceptions under Section 408.123(f).

90-Day Period. The 90-day time period for a party begins after written notice of the first valid certification of MMI and/or first valid assignment of IR is delivered to that party by verifiable means. Sections 408.123(e) and 130.12(b). The 90-day period for the IC starts the day after its notice is delivered by verifiable means. The 90-day period for the IW starts the day after the IW’s notice is delivered by verifiable means. The 90-day periods will be the same for the IC and IW only if they each happen to have their notice delivered by verifiable means on the same day.

Delivery by Verifiable Means. Written notice of the IW’s first valid certified MMI date and/or first valid assigned IR must be provided to the IW and IC by verifiable means. Section 408.123(e). The 90-day period begins for the IC on the day after notice is delivered to it by verifiable means. The 90-day period begins for the IW on the day after notice is delivered to the IW by verifiable means. APD 041985-s. Written notice has been provided by verifiable means when it is delivered in a manner that reasonably confirms delivery to a party. This may include a statement of personal delivery, acknowledged receipt by the IW or IC, confirmed delivery by facsimile or email, or by some other confirmed delivery to the home or business address. APD 042749. When the written notice was provided or delivered to the IC or IW is a question of fact for the HO to resolve. APD 042163-s.

Written Notice Delivered by Verifiable Means. The IW testified that he received a letter from the IC in October 2005, but he did not recall the date of receipt. In evidence were the adjuster’s notes dated October 13, 2005, that indicated the DD‘s DWC-69 certification of MMI/IR was mailed to the IW via certified mail. Also, in evidence were a copy of an United States Postal Service certified mail return receipt request form or “green card” with the IW’s name, address, signature, and a date-stamp of October 21, 2005, and a track and confirm document, which correlated with the green card receipt number that showed the certified mail was delivered on October 21, 2005. The HO found that the DD’s MMI/IR certification did not become final because certification was not delivered to the IW by verifiable means. The AP reversed the HO’s determination that the DD’s certification of MMI/IR did not become final because under the facts of this case, the DD’s certification of MMI/IR was delivered to the IW by verifiable means as evidenced by the adjuster’s notes dated October 13, 2005, the green card, and the track and confirm document, which showed delivery on October 21, 2005. APD 070533-s .

The AP reversed the HO’s determination that the first certification of MMI/IR did not become final under Section 408.123 and rendered a decision that the first certification of MMI/IR became final pursuant to Sections 408.123 and 130.12. The PLN-3 and DWC-69 were mailed to the IW’s correct address by certified mail, return receipt requested; delivery of the certified mail was attempted per the notation of the date on the envelope; and the “green card” indicated that the PLN-3 and DWC-69 were included. The AP held that the IW was given verifiable written notice of the first certification of MMI/IR and it was undisputed that the IW did not dispute the certification within 90 days. APD 070913.

The TD issued the first valid certification of MMI/IR on March 12, 2007. In a fax dated March 21, 2007, the IC sent the Division a PLN-3 stating that a “copy of the DWC-69 by the [TD] is included in this fax.” The PLN-3, dated March 21, 2007, and addressed to the IW, stated that the IC was disputing the TD’s IR “(copy attached)” and that the IC made a reasonable assessment of an impairment. The HO determined the IC did not receive the certification through verifiable means. On appeal the AP determined that the IC’s referencing the TD’s report in the PLN-3 and sending a copy of the TD’s DWC-69 to the Division established acknowledged receipt of the first certification of MMI/IR. The AP reversed the HO’s determination and rendered a decision that the IC received the first certification of MMI/IR through verifiable means based on the IC’s acknowledged receipt on March 21, 2007, of the first valid certification of MMI/IR. APD 080301-s.

The HO found that the first certification of MMI and IR did not become final under Sections 408.123 and130.12 because the evidence was insufficient to show acknowledged receipt by the IW on a date certain to begin the 90-day period nor was the evidence sufficient to show that the IC had verifiable proof that the report was delivered to the IW. The AP reversed and rendered a new decision that the first certification of MMI and IR did become final. The evidence established that the first certification of MMI and assigned IR dated May 30, 2007 was delivered by verifiable means solely to the IW’s attorney, but the evidence also established that the IW exchanged it with the IC at a BRC held June 20, 2007, attended by the IW and his attorney. One of the requested BRC issues was “Entitlement to IIBs based on DD report of 05/30/07 with 5% IR.” The requested issue regarding IIBs was not indicative of a dispute of the first certification of MMI/IR, but rather a request for payment of IIBs based on the assessed 5% IR. Although the IW testified that he did not know what documents (nor the date that his attorney received them) were exchanged by his attorney at the BRC, the evidence established that the IW had a copy of the first certification of MMI and IR by the June 20, 2007, BRC. Distinguishing APD 080921-s, under the facts of this case, the AP held that the exchange of the first valid certification constitutes acknowledged receipt by the IW. There was no evidence that the IW disputed the first valid certification of MMI and IR within 90 days of delivery of written notice through verifiable means. APD 081248-s.

Written Notice Not Delivered by Verifiable Means. Other than the IW’s testimony, no evidence was presented at the CCH to indicate that the notification was delivered to the IW by verifiable means. In this circumstance, the HO was free to believe the IW’s testimony to establish the date notice was first delivered to the IW by verifiable means. APD 041241-s.

The IC provided evidence at the CCH that the DWC-28 Notification Regarding [MMI] and/or [IR] of the IW’s certification, along with the DWC-69 Report of Medical Evaluation, was sent to the IW by certified mail with return receipt requested; however, the certified mail was returned to the IC because the IW never picked it up. The IW testified at the CCH that he had not received any notice regarding the certified mail. There was no evidence as to what date the notifications of the certified mail were delivered to the IW, nor was there any indication of the date the certified mail was returned to the IC. The HO found that the IW had received written notice by verifiable means to trigger the 90-day period under Sections 408.123 and 130.12. The AP reversed, stating that the IC had failed to present evidence of a date certain that would be sufficient to begin the 90-day period under Sections 408.123 and 130.12. APD 050031-s.

The HO found that the first certification of MMI and IR became final under Section 408.123 because it was not disputed within 90 days after the certification was provided to the IW’s attorney. The AP reversed and rendered a new decision that the first certification did not become final. The evidence established that the first certification of MMI and assigned IR was delivered by verifiable means solely to the IW’s attorney, but there was no evidence of delivery of the written notification of the first certification of MMI and assigned IR to the IW as required by Section 102.4(b). APD 080921-s.

Disputing the First Valid Certified MMI Date and/or First Valid Assigned IR. If within their respective 90-day periods either the IC or IW disputes the first valid certified MMI date and/or first valid assigned IR, it cannot become final.Section 408.123(e). Only an IC, an IW, an IW’s attorney, or an IW’s representative as defined under Section 150.3(a) may dispute a first valid certified MMI date and/or first valid assigned IR. Section 130.12(b)(1). To dispute an IW’s first valid certified MMI date and/or first valid assigned IR, the disputing party must request a BRC pursuant to Section 141.1 or Section 130.12(b)(1), or as an alternative, if a DD has not yet been appointed, request the appointment of a DD to dispute certified MMI date and assigned IR.

The first valid certified MMI date and/or first valid assigned IR must be timely disputed even if the compensability of an injury is also in dispute. If an IC has failed to dispute the first valid certified MMI date and/or first valid assigned IR but has disputed the compensability of an injury and the injury is later determined not compensable, the IC will be relieved of the obligation to pay benefits. The 90-day dispute provision of Sections 408.123(e) and 130.12 will not make a first valid certified MMI date and/or first valid assigned IR final where an injury has been found not compensable. APD 043105-s.

Dispute. On January 14, 2004, the IW received written notice of her first certification of MMI and IR assigned by a DD. On April 2, 2004, and within 90 days after written notice was delivered by verifiable means, the IW requested a BRC to dispute the first valid certified MMI date and/or first valid assigned IR. The AP found that the IW’s request for a BRC was a timely dispute of the first valid certified MMI date and/or first valid assigned IR under Section 130.12(b)(1). APD 042163-s.

The TD certified a first valid MMI date and assigned a first valid IR for the IW and it was delivered by verifiable means to the IC on November 12, 2003. On December 3, 2003, the IC filed a DWC-32 requesting an appointment of a DD. The IC completed Sections I and II of the form, and checked the block, “To dispute an assigned date of [MMI] and [IR],” however, the IC did not complete Section III of the form. The AP affirmed the HO’s decision that the IC filed a DWC-32 with the Division on December 3, 2003, sufficient to dispute the first valid certified MMI date and first valid assigned IR pursuant to Section 130.12(b)(1), and that the first valid certified MMI date and first valid assigned IR did not become final. APD 043023-s.

Not a Dispute. The Division-appointed DD examined the IW on January 6, 2004, and issued the IW’s first valid certified MMI date and first valid assigned IR. On January 16, 2004, the IC received the first valid certified MMI date and first valid assigned IR. On January 26, 2004, the IC filed a DWC-22 Required Medical Examination Notice or Request for Order to have the IW examined by its doctor of choice and the request was approved. On April 28, 2004, after the 90-day period had expired, the IC filed a Request for a BRC. The HO correctly decided that the IC failed to timely dispute the IW’s first valid certified MMI date and first valid assigned IR. A dispute can only be made by requesting a BRC or by requesting the appointment of a DD, if one has not been appointed. APD 041903-s.

First Valid Certifications of MMI And First Assignments of IR. There can be only one first valid certified MMI date and/or first valid assigned IR and it is the one that is made first in time. However, if the first valid certification of MMI and/or assignment of IR should be modified, overturned, or withdrawn by final decision of the Division or court or withdrawn by agreement of the parties, that first valid certified MMI date and/or first valid assigned IR is no longer valid as of the date of the modification, overturning, or withdrawal. Then, the first valid certified MMI date and/or first valid assigned IR that is made after the date of the modification, withdrawal, or overturning may become final under Sections 408.123(h) and 130.12(a)(3).

Section 408.123(f) Exceptions to Finality After 90-Day Period. An exception to finality after the 90-day period shall be based on “compelling medical evidence.” Section 408.123(f).

Improper or Inadequate Medical Care.

Not an Exception. On March 23, 2005, the IW received notice of the first valid MMI certification and IR assignment by verifiable means. The IC preauthorized SS on February 1, 2005. The IW initially declined SS but later had the SS on July 19, 2005. The IW disputed the first valid MMI certification and IR assignment on August 9, 2005. The IW testified at the CCH that the surgery improved his condition and relieved his symptoms. The HO determined that the first MMI certification and IR assignment did not become final under Section 130.12 because there was compelling medical evidence of improper or inadequate treatment of the IW’s injury prior to the surgery. The AP reversed the HO’s determination because the improper or inadequate treatment must occur prior to the date of certification. The AP also found that the IW’s initial refusal of SS did not result in inadequate treatment. APD 052666-s.

Mistaken Diagnosis or a Previously Undiagnosed Medical Condition.

An Exception. The first valid certification of MMI and assignment of an IR was based on a diagnosis of a lumbar strain/sprain. During the 90-day period to dispute the first certification of MMI/IR, diagnostic tests revealed a herniated disc. The HO determined that the first certification of MMI/IR became final because the IW was aware that he was misdiagnosed within the 90-day dispute period, but did not dispute the certification. The AP reversed the HO’s decision and rendered a decision that the first certification of MMI/IR did not become final because there was compelling medical evidence of a clearly mistaken diagnosis and held that it was of no legal significance that the IW may have been aware of the misdiagnosis during the 90-day dispute period. The AP noted that the exceptions in Section 408.123(f)(1)(A), (B), and (C) do not provide that the exceptions only apply if knowledge of the facts giving rise to an exception occurs after the 90-day period has expired, and that the AP could not create such an exception to the exceptions. APD 061493-s.

The HO determined the first certification of MMI/IR became final under Section 408.123. The first certification was issued by the TD on August 24, 2005, placing the IW at MMI on that date with a 0% IR. The IW claimed the first certification did not become final because she had a previously undiagnosed condition of CTS. There was no diagnosis of CTS until June 2006. A test performed on June 28, 2005 noted no neurophysiologic evidence of CTS; however, the interpretation of that test specifically warned of a possible false negative and suggested retesting if clinically indicated. A doctor recommended CTS release surgery on August 18, 2006, and another doctor, based on a review of medical records, found that based on failure of non-operative treatment for the CTS the requested procedures were indicated medically. The IW ultimately underwent CTS release surgery on November 13, 2006. The DD placed the IW at statutory MMI with a 7% IR. The AP reversed the HO’s decision and rendered a new decision that the first certification by the TD did not become final under Section 408.123 because there was compelling medical evidence of a previously undiagnosed medical condition of CTS. The AP stated that Section 408.123(f)(1)(B) did not require that the previously undiagnosed condition be present at the time of the first certification and declined to read such a requirement into the statute. APD 080297-s.

Significant Error in Applying the Guides or Calculating IR.

An Exception. The DWC-69, Report of Medical Evaluation, showed the IR as being 19% but the certifying doctor’s narrative report showed the correct IR calculation to be 28%. This is an exception to finality after the 90-day period. APD 050729-s.

The HO correctly determined that the TD’s first valid certified MMI date and first valid assigned IR was not final because the TD used the wrong edition of the Guides in determining the IR.APD 992419.

The AP reversed and remanded for the HO to determine whether radiculopathy was a part of the compensable injury and whether the first certification of MMI/IR became final. If the HO determined that radiculopathy was not part of the compensable injury, an IR given based on radiculopathy would be an exception to the finality rule because compelling medical evidence exists in the record to establish a significant error on the part of the certifying doctor in applying the appropriate Guides or in calculating the IR. APD 060170-s.

The fact that an exception under Section 408.123(f) can be established does not make the first certification of MMI/IR invalid for purposes of initially determining whether it is a valid certification under Section 130.102(c) and subject to Section 408.123(e). In this case, there was compelling medical evidence of a significant error in applying the Guides and in calculating the IR in that the DD improperly converted to whole person impairments prior to combining the upper extremity impairments in assessing the IR. The evidence supported the HO’s finding that the DD’s first assigned IR did not become final under Section 408.123(e) because an exception to finality existed under Section 408.123(f)(1)(A). The RME doctor’s IR did not become final under Section 408.123 because under Section 130.12(a)(3) it was not the first valid subsequent certification of MMI and/or assignment of IR or determination of no impairment received after the date a certification of MMI and/or assignment of an IR or determination of no impairment is overturned, modified, or withdrawn by agreement of the parties or by a final decision of the Division or a court. APD 061569-s.

The DD reported that the IW was not at MMI. Subsequently, a TD MMI/IR referral doctor certified the IW reached MMI on September 12, 2006, with a 12% IR. The referral doctor later amended his report to a 16% IR to include impairment for a distal clavicle resection arthroplasty he had failed to rate in his initial report. There was no appeal of the HO’s determination that the IW reached MMI on September 12, 2006, so that is the IW’s MMI date. The AP affirmed the HO’s determination that the referral doctor’s failure to rate the distal clavicle resection arthroplasty in his original report constituted compelling medical evidence of a significant error in applying the Guides in calculating the IR, and that the 12% IR did not become final because of Section 408.123(f)(1)(A). The AP reversed and remanded the HO’s decision that the IW’s IR was 16% because there was no IR assigned by a DD as required by Section 408.125(a). The case was remanded for the DD to assign an IR based on the IW’s condition on September 12, 2006, the unappealed MMI date. APD 071283-s.

Not an Exception. The AP held that the district court judgment on extent of injury was not compelling medical evidence which established an exception to finality under Section 408.123. The AP determined that the CCH record did not reveal compelling medical evidence to establish that there was a significant error in applying the AMA Guides or in calculating the IR. The HO’s determination that the first certification of MMI/IR did not become final was reversed and a decision was rendered that the first certification of MMI/IR did become final. APD 061599-s.

Valid MMI Certification and IR Assignment. A valid certification of MMI and/or assignment of IR requires the following four elements: (1) the certification must be on a DWC-69, Report of Medical Evaluation; (2) the certification must contain an MMI date that is not prospective; (3) the certification must contain an impairment determination of either no impairment or a percentage IR assigned; and (4) the certification must contain the signature of the certifying doctor who is authorized under Section 130.1(a) to make the assigned impairment determination. Section 130.12(c); APD 050729-s.

The decisions regarding the validity of a certified MMI date and assigned IR under this heading, IR Finality/90-Day Disputes (I12), are to apply only to the 90-day finality. [For validity of a certification of MMI and IR assignment generally, see cross-references: Date of MMI (I06); IR (I07); Dispute of DD MMI Date (I10); and Dispute of DD IR (I11).]

Examples of Invalid MMI Certifications and IR Assignments. An individual on behalf of the certifying doctor signed the IW’s DWC-69, Report of Medical Evaluation. The HO determined that the individual signing the DWC-69 was the certifying doctor’s agent, and therefore found the first valid certified MMI date and first valid assigned IR valid. The HO went on to find that the first valid certified MMI date and first valid assigned IR became final under Section 130.12. The AP reversed, stating that a first valid certified MMI date and first valid assigned IR must either contain the certifying doctor’s actual signature on the DWC-69 or have his or her signature affixed with a rubber stamp or an electronic facsimile signature. [See Section 130.1(d)(1)(A).]APD 042044-s.

It was undisputed that the DD’s report dated August 12, 2004, certifying MMI on that date with a 15% IR was the first certification of MMI/IR. The evidence indicated that on August 17, 2004, the IC received by fax the DD’s narrative. Subsequently, on September 13, 2004, the DD faxed a copy of the DWC-69 to the IC. The IC disputed the DD’s certification on December 7, 2004, by filing a request for BRC. The focus in this case was whether the receipt of the narrative report on August 17, 2004, was sufficient to begin the 90-day clock of Sections 408.123 and 130.12. The AP affirmed the HO’s decision that the first certification of MMI/IR assigned by the DD on August 12, 2004, did not become final. The AP stated that where the rule states that the MMI and/or IR assigned must be on a DWC-69, Report of Medical Evaluation, other means of communication of the MMI/IR, such as in this case, by means of a narrative report without a DWC-69, are insufficient to begin the 90-day dispute period of Sections 408.123 and 130.12(b). APD 050747-s.

Reduction/Suspension (IIBs or SIBs) for Contribution from Prior Compensable Injury (I15).

At the request of the IC, the Commissioner may order a reduction in IIBs and SIBs in a proportion equal to the proportion of a documented impairment that resulted from prior compensable injuries. Section 408.084(a). In determining whether to allow a reduction, and in what amount, the Commissioner shall consider the cumulative impact of the compensable injuries on the IW’s overall impairment. Section 408.084(b). At least two compensable injuries must exist for the IC to request contribution.

Burden of Proof. When contribution is sought due to a prior compensable injury, the IC has the burden of proof to establish that it is entitled to, and the amount of, contribution. The IC need not prove an exact percentage; however, there must be sufficient evidence of a contribution percentage that is reasonably supportable. APD 961211.

A determination of contribution must be based on medical evidence, but the existence of medical evidence supporting contribution does not require an award of contribution. APD 941170. Likewise, the mere existence of a prior compensable injury is insufficient to support entitlement to contribution. APD 031237.

Cumulative Impact. To be entitled to contribution, the IC must provide an analysis showing the cumulative impact of the prior compensable injury and the latest compensable injury and how the injuries work together and the extent to which the prior compensable injury contributes to the current impairment. APD 941338. An IC’s request for contribution cannot be denied solely because the cumulative impact analysis does not convert the impairment rating from the earliest compensable injury to a rating under the same version of the AMA Guides under which the latest compensable injury was rated. APD 030864-s.

In assessing cumulative impact, the starting point is to look at the recent impairment followed by looking back to the earliest impairment rather than starting with the earliest impairment and looking forward to events that have not yet happened. APD 960589.
An IC that does not provide an adequate cumulative impact analysis fails to meet its burden of proof and is not entitled to contribution. Entitlement to contribution is a question of fact for the HO to resolve. APD 042339.

Where IIBs and SIBs have been awarded and it is determined that an IC is entitled to contribution based on a prior compensable injury, SIBs and IIBs must be reduced in the same proportion. Ins. Co. of Pa. v. Moore, 43 S.W.3d 77 (Tex. App.-Fort Worth 2001, no pet.).

Effective Date. Contribution does not apply to income benefit payments which accrue prior to the filing of a request for contribution. APD 002211-s.

Recoupment for Contribution. It was undisputed that an overpayment had been made by the IC due to a Division contribution award. An IC may only recoup overpayments on IIBs and SIBs that accrue on or after the date the IC files the request for contribution, which is eventually approved, with the Division. APD 050523-s.

Rate of Recoupment for Contribution. Section 128.1(e)(2)(C) can be looked to for guidance in determining the factors to consider in determining a reasonable rate of recoupment. APD 050523-s.

Reduction/Suspension to Recoup Overpayment (I16) [Cross-references: Reduction/Suspension (IIBs or SIBs) for Contribution from Prior Compensable Injury (I15) ; Wage Issues (W00-W06) ].

Generally. Absent a specific statutory or rule provision an IC may not recoup the overpayment of income benefits from an IW‘s future benefits. APD 060318. The exception is when the overpayment is due to a miscalculation of IW’s AWW .

Income benefits and medical benefits are of a different kind and character, and one may not be reached to satisfy an overpayment of the other no matter what the reason for the overpayment. APD 002508-s. Travel reimbursement for medical care is a medical benefit. APD 022547. See Section 134.110 regarding reimbursement for travel expenses for medical treatment. [Cross-reference: Reimbursement for Medical Travel Expenses (M02)] Section 128.1(e)(2) provides that if there has been an overpayment of income benefits due to the fact that the IW’s AWW is different than what the IC had previously determined, the IC may recoup the overpayment as provided in Section 128.1(e)(2)(A),(B), and (C).

Line of Duty Pay. In City of San Antonio v. Vakey the Fourth Court of Appeals noted that line of duty payments made pursuant to Section 143.073 of the Local Government Code are not considered salary supplements or salary continuation, and further noted that while Section 504.051 permits a city self-insured to offset the amounts paid for TIBs by the amounts paid for line of duty pay, it is the amount paid under Section 143.073 that is reduced, not the workers’ compensation benefits. City of San Antonio v. Vakey, 123 S.W.3d 497 (Tex.App.-San Antonio 2003, no pet.).

Rate of Recoupment. The self-insured employer provided its adjusting company the IW’s AWW. Based upon this information, the adjusting company paid the IW TIBs. Subsequently, the adjusting company received new AWW information which revealed that the IW had been overpaid TIBs and IIBs. The adjusting company terminated the payment of IIBs, stating that “IIBs exhausted based on overpayment credit.” The HO determined that the IC was entitled to reduce the IW’s IIBs to zero in order to recoup the overpayment pursuant to Section 128.1(e)(2)(B). Section 128.1(e) provides that when the IC determines or is notified that the IW’s AWW is different than what the IC had previously determined, the IC shall adjust the AWW and begin payment of income benefits based upon the adjusted AWW no later than the first payment due at least seven days following the date on which the IC receives the new information regarding the AWW. If as a result of the change the IC has overpaid income benefits, the IC is allowed to recoup the overpayment in an amount not to exceed 25% of the income benefits the IW is entitled to based upon the new AWW as long as the IW’s income benefits are not concurrently being reduced to pay attorney’s fees or recoup a Division approved advance. Section 128.1(e)(2)(A). If the IW’s income benefits are currently being reduced, the IC may recoup the overpayment in an amount not to exceed 10% of the income benefits the IW is entitled to based upon the new AWW. Section 128.1(e)(2)(B). If the IC wants to recoup the overpayment at a greater rate than that provided for, it can do so by agreement with the IW or approval from the Division. In approving an increased percentage of recoupment, the Division’s primary consideration is the likelihood that the entire overpayment will be recouped. The Division may also consider the cause of the overpayment and the financial hardship it would cause the IW. Section 128.1(e)(2)(C). The AP reversed and rendered a decision that the IC was only allowed to reduce the IW’s IIBs by 10% per Section 128.1(e)(2)(B). The IC admitted that it failed to avail itself of the relief provided for under Section 128.1(e)(2)(C) because it did not try to negotiate a rate of recoupment with the IW, and it did not request that the Division set a rate higher than 10%. Instead, the IC unilaterally suspended the payment of IIBs. APD 033358-s.

Recoupment Allowed. The IC erred in calculating the IW’s AWW, thereby resulting in an overpayment of TIBs. The IW argued that the IC should not be allowed to recoup the overpayment because the overpayment was a result of the IC’s error and would cause an undue hardship on her. The IC is entitled to recoupment pursuant to Section 128.1(e)(2) even when the overpayment was due to the IC’s error in calculating the proper AWW. Section 128.1(e)(2) supercedes prior AP decisions which looked to the equities in determining an IC’s right to recoup an overpayment. APD 040876.

Recoupment Disallowed. By mistake after the 26th week of disability, the IC continued to pay TIBs at a rate of 75% of the IW’s AWW rather than 70%. Section 128.1(e) provides a method for the IC to recoup an overpayment of TIBs when the AWW has been miscalculated. However, Section 128.1(e) is not applicable when the overpayment is due to a misapplication of the rate to be applied to the AWW and not due to a miscalculation of the AWW itself. Where an overpayment of TIBs occurs due to a misapplication of the correct rate to be applied to the AWW, the IC is not entitled to reduce the IW’s income benefits to recoup the overpayment. APD 040425.

Redesignation of Overpaid TIBS as IIBS. TIBs continue until the IW reaches MMI, if the IW has disability, and an IW’s entitlement to IIBs, as well as the IIBs accrual date, begins on the day after the IW reaches MMI. Sections 408.101(a); 408.102(a); 408.121(a);130.8(a). Where an IC has paid TIBs to an IW after what is later determined to be the MMI date, the TIBs payments made after the MMI date are redesignated as IIBs, and the IC can take credit as IIBs those income benefits it paid to the IW as TIBs after the MMI date. APD 94872.

Entitlement to Commutation (I17)

An IW may elect to receive the remainder of IIBs to which he or she is entitled in a lump sum if the IW has returned to work for at least three months, earning at least 80% of the IW’s AWW. An IW who elects to receive the remainder of his or her IIBs in a lump sum is not entitled to any additional income benefits for the compensable injury. See Sections 408.128 and 147.10.

Election to Commute Final. An IW’s election to receive IIBs in a lump sum is final and binding if it is properly made in accordance with the requirements of Sections 408.128 and 147.10. APD 992541. An IW legally qualified to commute IIBs under Sections 408.128 and 147.10 will not be relieved of the effects of his or her election to commute IIBs based on a finding of mutual mistake regarding the extent of the compensable injury because there is no good cause exception to be relieved of the effects of the election to commute IIBs. APD 080469-s.

Election to Commute Not Final. An IW’s election to receive IIBs in a lump sum may not be final and binding if the strict requirements of Sections 408.128 and 147.10 are not complied with.

Even though the IC approved the IW’s election to receive his remaining IIBs in a lump sum based upon the IW’s representations that he had returned to work for at least three months earning at least 80% of his AWW, the election was held to be invalid. The evidence presented at the CCH showed that the IW had not returned to work for at least three months earning at least 80% of his AWW, and therefore, the IW was not legally qualified to commute IIBs pursuant to Sections 408.128 and 147.10. APD 941627.

Abandonment of Medical (I18)

A finding that an IW has abandoned medical treatment, standing alone, is generally not in itself dispositive of anything. APD 950295. Normally, abandonment of medical treatment only serves to trigger an inquiry to the appropriate doctor as to whetherMMI has been reached. APD 001587. Further, there is no provision in the Act or Rules for an IW’s disability period to be automatically terminated based solely on a determination that there has been an abandonment of medical treatment. APD 051731.

Entitlement to LIBs (I22)

In some limited cases, the compensable injury is so severe that the IW is entitled to LIBs. LIBs are income benefits that are paid until the IW’s death. Subject to Section 408.061 regarding maximum weekly benefits, the amount of LIBs is equal to 75% of the IW’s AWW, and benefits are increased at a rate of 3% a year. Section 408.161(c). Section 408.161 provides as follows:

(a) Lifetime income benefits are paid until the death of the employee for:

(1) total and permanent loss of sight in both eyes;
(2) loss of both feet at or above the ankle;
(3) loss of both hands at or above the wrist;
(4) loss of one foot at or above the ankle and the loss of one hand at or above the wrist;
(5) an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg;
(6) for a compensable injury that occurs on or after September 1, 1997, a physically traumatic injury to the brain resulting in incurable insanity or imbecility (for compensable injuries which occurred prior to September 1, 1997, there has to have been an actual injury to the skull which resulted in incurable insanity or imbecility); or
(7) for a compensable injury that occurs on or after June 17, 2001, third degree burns that cover at least 40 percent of the body and require grafting, or third degree burns covering the majority of either both hands or one hand and face.

(b) For purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of the body part.

Whether or not an IW has presented sufficient credible evidence to establish entitlement to LIBs is a question of fact for the HO to resolve. APD 042178.

Accrual Date. LIBs accrue and become payable on the date that the IW suffers from one of the conditions listed in Section 408.161(a), and not before. Once an IW is adjudicated eligible to receive LIBs, LIBs should be paid retroactively to the date the IW first became eligible. Mid-Century Ins. Co. v. Texas Workers’ Compensation Commission, 187 S.W. 3d 754 (Tex. App.-Austin 2006, no pet.).

Burns. The IW sustained a compensable injury in 2003 resulting in burns to various parts of his body, including his hands. The IW contended that he has third degree burns covering the majority of both hands and is entitled to LIBs under Section 408.161(a)(7). The AP reversed the HO’s determination that the IW is not entitled to LIBs and rendered a decision that the IW is entitled to LIBs because the medical evidence supported the IW’s contention and the HO’s determination was contrary to the great weight and preponderance of the evidence. APD 050314.

Incurable Insanity/Imbecility. For injuries occurring on or after September 1, 1997, an IW seeking LIBs under Section 408.161(a)(6) must prove that there has been a physically traumatic injury to the brain resulting in incurable insanity or imbecility. For injuries occurring prior to September 1, 1997, an IW seeking LIBs under Section 408.161(a)(6) must prove that there was an injury to the skull resulting in incurable insanity or imbecility.

Brain Injury (injuries on or after September 1, 1997). The IW sustained multiple injuries, including a closed head injury, in a MVA in 2000. The IW asserted that the compensable injury included Post-traumatic Alzheimer’s Dementia and that he is entitled to LIBs. The IW’s court appointed guardian testified that the IW requires constant around the clock care. The AP affirmed the HO’s determination that the compensable injury included Post-traumatic Alzheimer’s Dementia and that the IW was entitled to LIBs due to a physically traumatic injury to the brain resulting in incurable imbecility. APD 041416.

Depression. The IW sustained her compensable injury in 1990 when she fell from a ladder and sustained a closed head injury. In the months following the injury, the IW began complaining of multiple symptoms including headaches, depression, memory defects, inattentiveness, and suicidal thoughts. No doctor documented any external trauma to the head. The trial court found that the IW was entitled to LIBs because she had sustained a head injury resulting in depression and because her depression qualifies as incurable insanity. The court of appeals determined that the IW was not entitled to LIBs. The appeals court noted that, according to dictionary references, the term “psychosis” is now used in lieu of what was formerly termed “insanity.” There was no evidence that the IW suffered from any psychotic disorder symptoms, and psychosis is distinguishable from depression by its symptoms. Because the court of appeals determined that depression does not equate to incurable insanity, it did not discuss injury to the skull. National Union Fire Insurance Company v. Burnett, 968 S.W.2d 950, (Tex. App.-Texarkana 1998, no pet.). (Due to the DOI this case was decided under law predating the 1989 Act; however, the proposition of law remains valid under the current Act.)

Skull Injury (Injuries Prior to September 1, 1997). The IW sustained his compensable injury in 1991, when the truck he was sitting in was struck by lightning. Following the injury, the IW was adjudicated to be incompetent, and the court appointed a guardian. The IW presented evidence that the lightning strike caused part of his brain to die, and that he now suffered from incurable imbecility. No evidence was presented to show that the IW sustained a blow to his skull or any injury to his skull. The HO properly determined that the IW was not entitled to LIBs because he did not sustain an injury to his skull. APD 951336.

The IW sustained a compensable injury in 1995 when he fell and struck his head. The trial court found that the IW sustained an injury to the skull structures resulting in incurable insanity or imbecility, but denied the IW LIBs because he did not fracture his skull. The court of appeals reversed the judgment of the trial court and rendered judgment that the IW is entitled to LIBs. The appeals court held that an “injury to the skull” does not require a fracture of the skull to meet the “injury to the skull” requirement in Section 408.161(a)(6).Barchus v. State Farm Fire & Cas. Co., 167 S.W. 3d 575 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).

Injury to the Spine. Section 408.161(a)(5) provides that an IW that sustains a compensable injury to the spine which results in permanent and complete paralysis of both arms, both legs, or one arm and one leg is entitled to LIBs. Claimed entitlement to LIBs pursuant to subsection (a)(5) is frequently argued and evaluated in connection with entitlement to LIBs pursuant to subsections (a)(2) and (a)(3) (see TOTAL LOSS OF USE, infra). While there are similarities between entitlement to LIBs based upon an injury to the spine and total loss of use, what needs to be proven is different. APD 011861. Whether or not the IW has presented sufficient credible evidence to establish a spinal injury resulting in permanent and complete paralysis is a question of fact for the HO to resolve. APD 031510.

The IW sustained a compensable injury while picking up a machinery part. Initially, the IW thought he had just pulled a muscle, but several days later he began to experience weakness in his leg along with a limp. The IW sought medical care, was diagnosed with a lumbar strain, and was given conservative care. The IW returned to work after receiving treatment, but a few weeks later his symptoms returned. The IW was diagnosed as having a compression of the spinal cord in the cervical spine, he received surgery, and again returned to work. After several months the IW began to experience weakness in his legs. The IW returned to his doctor who felt the IW’s spinal cord had been damaged. The doctor further believed that part of the problem was the development of scar tissue at the spinal cord which would eventually get worse and cause loss of voluntary motor control of the IW’s legs. Both of the IW’s legs are now paralyzed. The HO accepted the IW’s medical evidence which showed that the IW’s paralysis was caused by the compensable injury and the resulting treatment, despite contrary medical evidence submitted by the IC. The HO determined that the IW was entitled to LIBs. The cause of the IW’s paralysis in both legs, and his entitlement to LIBs presented factual questions for the HO to resolve. APD 002197.

The IW had lumbar spine surgery for his compensable back injury. The AP affirmed the HO’s determination that due to the compensable injury, the IW had totally and permanently lost the functional use of his legs. The AP construed that determination to be the equivalent of a finding that the IW’s legs no longer possessed any substantial utility as members of his body. The AP reversed the HO’s determination that the IW is not entitled to LIBs because the IW’s legs were not completely paralyzed and rendered a decision that the IW is entitled to LIBs based on the total and permanent loss of use of both feet at or above the ankle. The AP cited prior APDs and court decisions in rejecting the argument that because the IW had a spinal injury, the only way the IW could prove entitlement to LIBs was to show permanent and complete paralysis of his legs under Section 408.161(a)(5). The AP noted that the court in Hartford Underwriters Insurance Co. v. Burdine, 34 S.W.3d 700 (Tex. App.-Fort Worth 2000, no pet.), a pre-1989 Act case, had approved entitlement to LIBs based on the total and permanent loss of use of the legs and/or feet, as total loss of use is defined in Travelers Insurance Co. v. Seabolt, 361 S.W.2d 204 (Tex. 1962), where the injury was to the spine, and that the court in Pacific Employers Insurance Co. v. Dayton, 958 S.W.2d 452 (Tex. App.-Fort Worth 1997, pet. denied) had rejected the argument that the standards applied to loss of use under the prior law should not apply to cases decided under the 1989 Act. APD 070063-s.

Revisiting Entitlement to LIBs. In an unappealed 1999 CCH decision, the IW was found to have no substantial use of his legs as a result of a compensable spinal injury as of the date of the CCH, that the loss of leg function was permanent, and, therefore, the IW was entitled to LIBs. However, by August 2001 the IC discovered the IW could walk very well. The IC initiated the dispute resolution process to terminate entitlement to LIBs. At the subsequent CCH the HO found that as of the date of the CCH the IW had substantial use of his legs; that his condition had materially changed after the prior CCH; that the IC using due diligence could not have discovered the IW had use of his legs before the prior CCH; and that there is no jurisdiction to terminate LIBs. The AP reversed and rendered that there was jurisdiction to terminate LIBs and that the IW’s LIBs are terminated as of the date of the subsequent CCH. In so finding the AP noted that an IW is entitled to certain medical benefits during his or her lifetime, and that the Division retains jurisdiction to resolve disputes regarding medical treatment; as LIBs may be paid for an IW’s lifetime, the AP perceived no rational basis for holding that the Division has no continuing jurisdiction to resolve disputes over entitlement to these benefits. APD 020432-s.

Subsequent Injury Fund (SIF). [Cross-reference: Liability of Subsequent Injury Fund Carrier Reimbursement (C21) ]. Sections 408.162 and 131.3 provide that if a subsequent compensable injury, along with the effects of a prior compensable injury, result in a condition which entitles an IW to LIBs, the second IC is liable for benefits only to the extent that the subsequent injury would have entitled the IW to benefits had there been no prior injury. The SIF pays the IW the difference between the LIBs amount and theTIBs, IIBs, and SIBs amounts paid by the second IC. APD 990321.

Total Loss of Use. An IW who, as a result of the compensable injury, has suffered a total and permanent loss of use of both feet at or above the ankles; both hands at or above the wrists; or one foot at or above the ankle and one hand at or above the wrist, is entitled to LIBs pursuant to Section 408.161(a)(2), (3), or (4) and (b).

Standard for Loss of Use. In determining whether an IW is entitled to LIBs based upon a total loss of use resulting from injury, the test, is (1) whether the member no longer possesses any substantial utility as a member of the body or (2) whether the condition of the injured member is such that it keeps the IW from getting and keeping employment requiring the use of the member. See Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204 (Tex. 1962); APD 94689. The IW need not prove both prongs of the test to establish entitlement to LIBs. The IW need only prove one of the two prongs to establish entitlement to LIBs. APD 941065. In addition, to qualify for LIBs, the total loss of use must be permanent.Pacific Employers Ins. Co. v. Dayton, 958 S.W. 2d 452 (Tex. App. -Fort Worth 1997, pet. denied).

Loss of Use Established. The IW sustained a compensable injury which included diabetes and motor sensory polyneuropathy, affecting his lower extremities. The IW’s doctor testified that the IW’s feet, at or above the ankles, no longer possessed any substantial utility as members of his body and that, due to the condition of his feet, the IW was not able to get and keep employment requiring the use of the feet. The doctor further stated that the IW’s condition was expected to be permanent. The IW testified that he was confined to a wheelchair. The IC presented evidence to contradict the IW’s doctor. The AP affirmed the HO’s determination that the IW was entitled to LIBs based upon the total and permanent loss of use of both feet. APD 012441.

Loss of Use Not Established. The IW sought entitlement to LIBs based upon a total loss of use of her hands. The IW testified regarding the activities she could not perform, and presented medical evidence regarding her upper extremity condition and her ability to work. The IC presented conflicting evidence to establish that the IW’s condition was not as severe as she claimed it to be. The HO determined that the IW was not credible, partially because a video depicted her doing activities which she testified she could not do. The AP affirmed the HO’s determination that the IW was not entitled to LIBs based upon a total and permanent loss of use of her hands. APD 040368.

Loss of Use – Evidence of Condition at Time of Trial Considered. The IW began working for the employer as a food service worker. Two years later she was transferred to a full-time custodian position. In the summer of 2000 the IW began to experience numbness, pain, and a lack of grip strength in her hands. The IW was diagnosed with CTS and ulnar entrapment to the left elbow and received surgery on both wrists and left arm. Following the surgeries the IW underwent a FCE and was determined to have the ability to perform only sedentary to light work. The IW attempted working a job in a hotel laundry and later as a custodian at an airport but quit because she was unable to perform the two jobs due to her limitations. A CCH was held on December 19, 2002. The HO determined the IW was not entitled to LIBs, and the AP affirmed the HO’s determination. On January 20, 2003, the IW returned to her orthopedic specialist and told him she could no longer perform housework due to the condition of her hands. The orthopedic surgeon noted in his report that the IW’s difficulty would prevent her from performing work activities and that the IW was “unable to work.” In the summer of 2004 the IW returned to the orthopedic surgeon, who released the IW to work with the limitations of the previous FCE. At the time of the trial the IW could not grasp objects and had constant pain in her hands, elbows, and shoulders. She was able to perform only a little housework, could drive a car, could hold a telephone for a limited time, and could write although not a lot. The IW was also able to brush her hair and teeth as well as dress herself, although these activities required much time to complete. The trial court reversed the Division’s determination and ordered the IW was entitled to recover LIBs based on the jury’s finding that the work injury resulted in the total loss of use of both hands at or above the wrists. The appellate court held the evidence, including the evidence of the IW’s condition at the time of trial, sufficiently supported the jury’s verdict and affirmed the IW’s entitlement to LIBs. El Paso Independent School District v. Pabon, 214 S.W.3d 37 (Tex. App.-El Paso 2006, no pet.). [Note: It does not appear that the LIBs issue at the CCH was limited to entitlement to LIBs “as of the date of the CCH” as in the Jackson case, summarized below.]

Loss of Use – Evidence of Deterioration After CCH not Allowed at Trial. The IW injured his leg and left knee while in the course and scope of his employment. The disputed issue at the CCH was whether the IW was entitled to LIBs based on the total and permanent loss of use of both feet “as of the date of the hearing.” The HO determined that the IW was not entitled to LIBs as of the date of the CCH, and the AP affirmed the HO’s determination. The IW sought judicial review of the AP decision. Prior to the trial the parties exchanged motions in limine. The Division’s motion included a request that no party argue or present any evidence on any issue other than the IW’s entitlement to LIBs as of the date of the CCH; however, the trial court denied the Division’s request, allowed the IW to file a trial amendment, and announced that it would allow evidence of the IW’s disability as of the date of the trial. The Division then appealed the trial court’s denial of its plea to the jurisdiction, contending that the trial court’s jurisdiction was limited to the issues decided by the AP, and, therefore, the trial court could only consider whether the IW was entitled to LIBs as of the date of the CCH. The court of appeals agreed with the Division and ruled that the trial court lacked jurisdiction to consider the IW’s eligibility for LIBs beyond the date of the CCH. In so ruling, the court noted that the HO determined the IW’s eligibility for LIBs “as of the date of the hearing,” and whether the IW is entitled to LIBs as of the date of the trial is a related but separate question. The court reasoned that to allow consideration of later facts would convert the trial from an appeal to a trial de novo. The court further noted that the HO is the only individual with authority to excuse exhaustion of administrative remedies upon a showing of good cause (good cause for not raising an issue at the BRC), and that the legislature made clear that the HO is to make the initial determination in workers’ compensation disputes and all subsequent proceedings are limited to a review of the HO’s determination. The court also stated that because the legislature did not afford trial courts the authority to excuse exhaustion of administrative remedies, the court assumes that the legislature determined that the benefits of having HOs make all initial determinations outweigh any potential efficiencies that may be gained with a complete trial de novo. The appeals court held that the trial court lacked jurisdiction to consider the IW’s eligibility for LIBs beyond the date of the CCH and remanded the case to the trial court. Texas Department of Insurance, Division of Workers’ Compensation v. Jackson, 225 S.W.3d 734, (Tex. App.-Eastland 2007, no pet.).

Prosthesis. The HO determined that the IW was entitled to LIBs based upon the total and permanent loss of use of both feet at or above the ankle and the AP affirmed. The IC argued that because the IW wore a prosthesis on his right leg, he was able to undertake certain tasks and therefore the member had substantial utility. The argument was rejected analogizing it to an argument that a blind man that has a seeing eye dog is not really blind. APD 952100.

Failure to Attend Designated Doctor Appointment (I24)

An IW who, without good cause, fails or refuses to attend a scheduled designated doctor examination has committed an administrative violation and is not entitled to TIBs for the time during which he or she fails to submit to the examination. Section 408.0041(i),(j). Good cause is a question of fact for the HO to resolve. APD 941656.

In the absence of a Division finding of good cause, an IC may presume an IW did not have good cause for failure to attend a scheduled designated doctor examination under the circumstances listed in Section 126.7(g)(1) and suspend TIBs as described in Section 408.0041(j) and Section 126.7(g). An IC who has suspended TIBs under Section 408.0041 and Section 126.7 is to reinitiate TIBs as of the date the IW submits to the examination unless the DD finds the IW has reached MMI or is otherwise not eligible for income benefits. Section 126.7(g)(2).

Please note that the two cases cited below were decided under former Section 130.6(c). As of this time the AP has not decided a case under Section 126.7(g).

Good Cause. The IW failed to submit to a scheduled designated doctor examination. The HO determined the IW had good cause for failing to attend the appointment because the IW did not receive notice of the appointment. The AP affirmed, noting that the credible evidence did not show the notice was sent to the IW or to his representative. APD 032927.

No Good Cause. The IW failed to submit to a scheduled designated doctor examination. The IW claimed a Commission (now Division) employee told him he did not have to attend the appointment because he had been approved to have surgery on a date after the scheduled appointment. The IW contacted the Commission after the IC suspended TIBs to request that the designated doctor examination be rescheduled. The DRIS notes did not reference a conversation with a Commission employee wherein the IW was advised he did not have to attend the examination. The HO was not persuaded that a Commission employee told the IW he did not have to attend the appointment, and therefore determined that the IW did not have good cause for failing to attend the appointment. The AP affirmed. APD 030524.

Entitlement to Multi-Employer Benefits (I25) [Cross-references: Amount of AWW (W01) ; Multiple Employment Employee (W06) ]When an IW is employed by more than one employer on the DOI, the IC shall calculate the AWW for that IW using the wages from all of the employers. For this purpose, the IW is required to submit a Multiple Employment Wage Statement to the IC. Section 128.1(h).

Claim Employers. The claim employer is the employer with whom the IW filed a claim for workers’ compensation benefits, and for whom the IW was working at the time of the injury. Section 122.5(a)(1). The portion of the AWW based on employment with the claim employer shall be calculated according to how the IW’s AWW would be determined if the IW did not have multiple employment. Section 128.1(h)(1).

Non-Claim Employers. A non-claim employer is any employer, other than the claim employer, who the IW was employed by on the DOI. Section 122.5(a)(2). An IW who was employed by a non-claim employer, in addition to the claim employer, at the time of the injury is allowed an adjustment in income benefits based on this employment.

The portion of the IW’s AWW that is based on employment with a non-claim employer shall be calculated by adding together the wages paid to the IW during the 13 weeks immediately preceding the injury and dividing that result by 13. If the IW has not worked for 13 weeks or more prior to the DOI, the wages used to determine AWW are those paid by the employer to a similar employee who performs similar services and earned wages during the previous 13 weeks. If there is no similar employee at the employer’s business, the AWW is determined using the wages earned by a similar employee who performed similar services in the same vicinity. The wages paid to that person during the 13 weeks prior to the DOI are added together and divided by 13. Section 128.1(h)(2). Wages used to determine AWW from a non-claim employer shall include only those wages reported for federal income tax purposes. Section 408.042(e); Section 128.1(h)(2). The IW must have earned income from the non-claim employer during the 13 weeks prior to the DOI or there can be no adjustment to the AWW for multiple employment. APD 030164-s.

Volunteer Firefighters. The IW was a volunteer firefighter who sustained a compensable injury in July of 2002. The IW sought to have the wages from his other employment in the calculation of his AWW. The HO calculated a wage for the IW as a volunteer firefighter and then combined that amount with the wages from the IW’s other employment to determine his AWW. The AP reversed and rendered, holding that because the IW earned no wages as a volunteer firefighter, his AWW could only be based on his wages from the other employment. APD 050140.

SIBs. (I31 – I42)

SIBs/Initial (First) Quarter (I31) and SIBs Subsequent Quarters (I32 – I39).

In some cases an IW will be entitled to SIBs upon the expiration of IIBs. SIBs accrue on the latter of (1) the first day of the applicable quarter, or (2) the date the DWC-52 is received by the IC subject to Section 130.105. Section 130.104(f). SIBs are calculated quarterly and paid monthly in the amount calculated under Section 130.102(g). Sections 408.144; 130.102(g). An IW who has met the following requirements upon the expiration of IIBs is entitled to SIBs:

1. an IR of 15% or more;
2. has demonstrated an active effort to obtain employment in accordance with Section 408.1415;
3. has not elected to commute a portion of the IIBs under Section 408.128;
4. has not returned to work or has returned to work earning less than 80% of the IW’s AWW as a direct result of the IW’s impairment;
5. has completed and filed a DWC-52; and
6. has not permanently lost entitlement to SIBs.

Sections 408.142; 130.102.

Determination of SIBs entitlement shall be made in accordance with the rules in effect on the date a qualifying period begins. APD 100296. This segment discusses the Act and Rules in effect as of July 1, 2009.

Good Faith. Please note that the good faith requirement in previous Section 130.102(b)(2) only applied to those cases in which the qualifying period begins prior to July 1, 2009. As this segment focuses on the Act and Rules effective July 1, 2009, any cases cited within this section that refer to good faith are not cited to discuss that concept but to illustrate the proposition of the heading the case falls under.

Active Effort to Obtain Employment in Accordance with Section 408.1415. To be eligible for SIBs an IW must provide evidence satisfactory to the Division of the following:

1. active participation in a VRP conducted by DARS or a private vocational rehabilitation provider;
2. active participation in work search efforts conducted through the TWC; or
3. active work search efforts documented by job applications submitted by the recipient.

Section 408.1415.

Work Search Requirements. An IW demonstrates an active effort to obtain employment by meeting at least one or any combination of the following during each week of the entire qualifying period:

1. has returned to work in a position which is commensurate with the IW’s ability to work;
2. has actively participated in a VRP as defined in Section 130.101;
3. has actively participated in work search efforts conducted through TWC;
4. has performed active work search efforts documented by job applications; or
5. has been unable to perform any type of work in any capacity. In this case the IW must provide a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and there must not be any other records showing that the IW is able to return to work.

Section 130.102(d)(1); APD 100429-s.

If the IW has not met at least one of the above-listed requirements in any week during his or her qualifying period, the IW is not entitled to SIBs unless the IW can demonstrate that he or she had reasonable grounds for failing to comply with the work search requirements. Section 130.102(d)(2).

Combining Any One or More of the Work Search Requirements in Section 130.102(d)(1)(A)-(E).The IW argued entitlement to SIBs based on (1) returning to work in a position which is commensurate with her ability to work; (2) active participation in a VRP as defined in Section 130.101; and (3) performing active work search efforts documented by job applications every week of the qualifying period in dispute. The HO found the IW demonstrated an active effort to obtain employment each week during the entire qualifying period by (1) returning to work in a position commensurate with her ability to work; (2) by performing active work search efforts documented by job applications; and (3) by actively participating in a VRP as defined by Section 130.101. The AP noted that Section 130.102(d)(1) provides that an IW may combine the work search requirements listed in (d)(1)(A)-(E) of that section for each week of the qualifying period, and examined each theory of entitlement argued by the IW to determine whether the IW met the work search requirements for each week of the qualifying period. APD 100429-s.

Participation in a VRP.

Not Actively Participating in a VRP.

The IW argued entitlement to SIBs based on active participation in a VRP as defined in Section 130.101, among other theories. The HO found the IW demonstrated an active effort to obtain employment each week during the entire qualifying period by actively participating in a VRP as defined by Section 130.101, among other things. The AP found the evidence did not establish the IW complied with Section 130.102(d)(1)(B), active participation in a VRP, because her DARS letter did not indicate that she was making a reasonable effort to fulfill her obligations in accordance with the terms of a vocational rehabilitation plan or IPE; there was no vocational rehabilitation plan or IPE in evidence; and no other evidence the IW was actively participating in a VRP during the qualifying period in dispute. Because the AP held the evidence did not establish that the IW met any of the work search requirements in week 12 of the qualifying period, the AP reversed the HO’s determination that the IW is entitled to SIBs for the disputed quarter. APD 100429-s.

The IW argued entitlement to SIBs based on active participation in a VRP. The employment goal in the IW’s IPE was identified as a social service worker, and the IW’s responsibilities in achieving this goal included, among other things, that the IW maintain 12 credit hours each semester. The IPE encompassed the entire qualifying period in question. During the qualifying period the IW was taking 12 credit hours; however, one of the classes ended three days after the start of the qualifying period. Although the IW listed job searches in excess of the minimum job search requirements in some of the weeks during the qualifying period, the IW failed to document any job searches for week 12 of the qualifying period. The HO found that the IW made a reasonable effort to fulfill her obligations in accordance with the terms of her IPE for the disputed quarter and therefore determined the IW was entitled to SIBs for the disputed quarter. The AP reversed the HO’s determination and rendered a new decision that the IW was not entitled to SIBs for the disputed quarter. No other evidence was offered that the IW performed any other activity in connection with her IPE in week 12, and no evidence of any other active efforts during week 12 to meet the work search requirements of Section 130.102(d)(1) was offered. Section 130.102(d)(2) provides that an IW who has failed to meet at least one of the work search requirements in any week of the qualifying period is not entitled to SIBs unless the IW can demonstrate reasonable grounds for failing to comply with the work search requirements. The AP noted that although the HO did not make a specific written finding on reasonable grounds, the HO discussed the issue on the record and stated that in his opinion the IW did not present evidence of reasonable grounds for failing to search for work in week 12 if it is determined the IW had to perform an activity in week 12 since she was not attending classes or performing any other activity under the provisions of the IPE. There was sufficient evidence to support the HO’s stated finding of no reasonable grounds for the IW’s failure to comply with the work search requirements in week 12 of the qualifying period. APD 100615-s.

Return to Work in a Position Commensurate with the IW’s Ability to Work.

IW Did Not Return to Work in a Position Commensurate with the IW’s Ability to Work During Each Week of the Qualifying Period. The IW argued entitlement to SIBs based on returning to work in a position which is commensurate with her ability to work, among other theories. The HO found the IW demonstrated an active effort to obtain employment each week during the entire qualifying period by returning to work in a position commensurate with her ability to work, among other things. The AP found the evidence supported the HO’s finding that the IW complied with Section 130.102(d)(1)(A), return to work in a position commensurate with her ability to work, during the 3rd, 7th, and 10th weeks of the qualifying period. However, because the AP held the evidence did not establish that the IW met any of the work search requirements in week 12 of the qualifying period, the AP reversed the HO’s determination that the IW is entitled to SIBs for the disputed quarter. APD 100429-s.

Total Inability to Work.

IW Did Not Have a Total Inability to Work. The IW argued entitlement to SIBs based on a total inability work. The HO found that the IW provided a narrative report from a doctor specifically explaining how the injury caused a total inability to work during the qualifying period in question, and that no other records show that the IW was able to return to work during the qualifying period. The AP noted the report relied upon by the IW stated “[a]t the time of this letter, [the IW] only qualifies for sedentary work therefore re-training thru [DARS] is recommended.” The AP found this report does not constitute a narrative report that explains how the compensable injury caused a total inability to work in any capacity given that the doctor opined that the IW can work sedentary duty, and therefore the report did not constitute a narrative that specifically explains how the injury causes a total inability to work pursuant to Section 130.102(d)(1)(E). There were no other records in evidence constituting the narrative report under Section 130.102(d)(1)(E). The AP reversed the HO’s determination and held the IW is not entitled to SIBs for the disputed quarter.APD 100267.

Work Search Efforts. An IW shall provide documentation sufficient to establish that the IW has, during each week of the qualifying period, made the minimum number of job applications and/or work search contacts consistent with the work search contacts established by the TWC required for unemployment compensation in the IW’s county of residence pursuant to the TWC Local Workforce Development Board requirements. If the IW’s required number of contacts changes during a qualifying period the lesser number of contacts is required for that period. If the IW resides outside of Texas the minimum number of required contacts will be the number required by the public employment service in accordance with applicable unemployment compensation laws for the IW’s place of residence. Section 130.102(f).

IW Did Meet Work Search Efforts Requirement.

The IW’s DWC-52 listed that the IW made five work searches for each week of the qualifying period in dispute, totaling 65 work searches, and attached was a detailed job search listing showing each employer’s name and telephone number. Out of these 65 work searches the IW made about 4 to 5 job applications with potential employers. The IW conducted his search for employment through newspaper and in-store employment listings. The HO noted in the background information section of her decision that the IW’s search for work was limited to talking with 65 potential employers, five each week, and leaving an application for work with only 5 employers. The HO found the IW failed to demonstrate an active effort to obtain employment during the qualifying period for the disputed quarter. The AP noted that although Section 130.102(d)(1)(D) provides an IW has performed active work search efforts documented by job applications, Section 130.102(f) provides in part that an IW shall provide documentation sufficient to establish that the IW has, each week during the qualifying period, made the minimum number of job applications and/or work search contacts consistent with the work search contacts established by the TWC. The AP further noted the preamble to Section 130.102 discusses subsection (f) of that rule to clarify that work search efforts would be consistent with job applications or the work search contacts established by the TWC, and that work search efforts encompasses both job applications and work search contacts as described by the TWC rules. The AP reversed the HO and held the IW met the work search efforts requirement by making job applications and work search contacts for each week during the entire qualifying period in dispute. APD 100229-s.

IW Moved to Another State During the Qualifying Period in Dispute. The IW’s county of residence on the first day of the qualifying period in dispute was in Texas; however, during the qualifying period the IW moved to Missouri. Both the IW’s Texas and Missouri counties of residence required three minimum work searches per week. The IW’s DWC-52 for the claimed SIBs quarter listed that the IW made a minimum of three work searches each week for the qualifying period in dispute, and attached to the DWC-52 was a detailed job search list that showed the employer’s name and contact information for each of the work searches. The HO found that the IW did not submit any job applications to document an active job search during each week of the qualifying period in dispute. The AP noted that APD 100229-s cited the preamble to Section 130.102(d)(1)(D), which clarifies that “work search efforts” encompasses both job applications and work search contacts as described by TWC rules, and that the DWC-52 for the SIBs quarter in question reflected that the IW met the work search efforts requirement by making at least three job applications and work search contacts for each week during the entire qualifying period in dispute. The preamble for Section 130.102 also provides that the IW will be required to make job contacts based on the lesser of the number required on the first day of the qualifying period or the newly established number, and if the number of work search contacts provided on the SIBs application differs from the actual number of work search contacts required on the first day of the qualifying period, the lesser number of work search contacts will apply. The AP reversed the HO’s determination that the IW is not entitled to SIBs for the disputed quarter and rendered a new decision that the IW is entitled to SIBs for the disputed quarter. APD 100467-s.

IW Did Not Meet Work Search Efforts Requirement.

The IW argued entitlement to SIBs based on performing active work search efforts documented by job applications every week of the qualifying period in dispute, among other theories. The minimum number of work searches for the IW’s county of residence was 3 per week. The IW’s DWC-52 listed that the IW made a minimum of 3 work searches for the 1st through the 11th and the 13th weeks of the qualifying period. However, for the 12th week the IW documented only 2 work searches. Attached to the DWC-52 was a detailed job search listing that documented each of the IW’s searches, although there was no documentation for a third work search in week 12. The AP stated that the IW did not provide documentation sufficient to establish she had during each week of the qualifying period made the minimum number of job applications and or work search contacts consistent with the work search contacts established by TWC which are required for unemployment compensation in the IW’s county of residence. There was no evidence the minimum number of work searches during the qualifying period changed from the required minimum of three. The AP held that portion of the HO’s finding that the IW demonstrated an active effort to obtain employment each week during the qualifying period by performing active work search efforts documented by job applications is against the great weight and preponderance of the evidence. Because the AP found the evidence did not establish that the IW met any of the work search requirements in week 12 of the qualifying period, the AP reversed the HO’s determination that the IW was entitled to SIBs and rendered a new decision that the IW was not entitled to SIBs for the disputed quarter. APD 100429-s.

Commutation of IIBs. Although an IW may elect to commute the remainder of his or her IIBs (dependent upon the IW returning to work for at least three months and earning at least 80% of his or her AWW), an IW who elects to do this is not entitled to any additional benefits for the compensable injury. Section 408.128; APD 042062.

Determination of Entitlement or Non-entitlement.

First Quarter. The Division will make the determination of entitlement or non-entitlement for an eligible IW’s first quarter of SIBs. Section 130.103. If the Division determines that the IW is entitled to SIBs for the first quarter, the Division will send a notice of determination to the IW which includes all of the information listed in Section 130.103(b). If the Division determines that the IW is not entitled to SIBs for the first quarter, the Division will send a notice to the IW which includes all of the information listed in Section 130.103(c).

Subsequent Quarters. After the Division has made the determination of entitlement or non-entitlement for SIBs for the first quarter, the IC shall make determinations for subsequent quarters consistent with the provisions contained in Section 130.102. The IC shall issue a determination of entitlement or non-entitlement within 10 days after receipt of the DWC-52. Section 130.104.

IC’s Duty to Send DWC-52 to IW. Under Section 130.104(b), the IC is required to send the IW a DWC-52 for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW a DWC-52 arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. APD 050280.

Direct Result. An IW has earned less than 80% of his or her AWW as a direct result of the impairment from the compensable injury if the impairment from the compensable injury is a cause of the reduced earnings. Section 130.102(c). A finding of direct result is sufficiently supported by evidence that the IW sustained a serious injury with lasting effects and that the IW could not reasonably perform the type of work that he or she was doing at the time of the injury. Determination of direct result is normally a question for fact for the HO to resolve. APD 061132.

However, if an IW is not entitled to SIBs at the time of payment of final IIBs because the IW is earning at least 80% of his or her AWW, the IW may become entitled to SIBs at any time within one year after the date the IIBs period ends if:

1. the IW earns wages for at least 90 days and the wages are less than 80% of the IW’s AWW;
2. the IW has an IR of 15% or greater, has not elected to commute a portion of the IIBs benefit under Section 408.128; and has demonstrated an active effort to obtain employment in accordance with Section 408.1415; and
3. the decrease in the IW’s earnings is a direct result of the IW’s impairment from the compensable injury.

Section 408.142

Filing the DWC-52. Section 130.101(1) describes the form and information required for an application for SIBs, form DWC-52.Section 130.104(c) describes the manner in which an IW is to file a DWC-52. The IW shall file the DWC-52 no later than seven days before and no earlier than 20 days before the beginning of the quarter for which the IW is applying for SIBs. The IC is to return any DWC-52 received more than 20 days before the beginning of the quarter. Section 130.104.

Untimely Filing DWC-52. An IW who fails to timely file a DWC-52 with the IC 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 IC, unless one of the following applies:

1. the IC failed to timely mail the form to the IW as provided by Section 130.104;
2. the Division failed to issue a determination of entitlement or non-entitlement for the first quarter and the quarter applied for immediately follows the first quarter; or
3. a finding of an IR of 15% or greater in an administrative or judicial proceeding when the previous IR was less than 15%.

Section 130.105.

IW Failed to Timely File DWC-52. On November 13, 2003, the Division sent the IW a notice of nonentitlement for the first quarter of SIBs. The IW testified at the CCH that the IC did not send him any application for SIBs. The IW filed his DWC-52 for the second, third, and fourth quarters of SIBs on September 9, 2004. The HO found that the IC failed to mail the IW an application for SIBs prior to September 9, 2004, and determined that the IC was not relieved of liability due to the IW’s failure to timely file a DWC-52 because the IC failed to provide copies of the DWC-52 in accordance with Division rules. The AP reversed the HO, noting that under Section 130.104(b), the IC is required to send the IW an application for SIBs for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW an application for SIBs arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. Because the Division determined the IW was not entitled to SIBs for the first quarter, the IW had to apply for a subsequent quarter of SIBs in order for the IC to be required to send an application to the IW under Section 130.104(b). The AP further noted that the exceptions under Section 130.105(a) do not apply to the facts of this case. The AP therefore reversed the HO and determined that the IC was relieved of liability for the payment of SIBs for the second and third quarter, and for that portion of the fourth quarter between July 10, 2004, and September 9, 2004. APD 050280.

IC Contesting IW’s Entitlement or Amount of SIBs.

First Quarter. An IC wishing to dispute a Division finding of entitlement to or amount of SIBs for the first quarter shall request a BRC within 10 days after receiving the Division determination of entitlement. An IC waives the right to contest the Division determination of entitlement to or amount of SIBs for the first quarter if the request is not received by the Division within 10 days after the date the IC received the determination. Section 130.108(b).

Subsequent Quarter with Prior Payment. If an IC disputes entitlement to a subsequent quarter and the IC has paid SIBs during the quarter immediately preceding the quarter for which the DWC-52 is filed, the IC shall dispute entitlement to the subsequent quarter by requesting a BRC within 10 days after receiving the DWC-52. An IC 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 IC received the DWC-52. The IC does not waive the right to contest entitlement to SIBs if the IC has returned the IW’s DWC-52 pursuant to Section 130.104(c).

Subsequent Quarter without Prior Payment. If an IC disputes entitlement to a subsequent quarter and the IC did not pay SIBs during the quarter immediately preceding the quarter for which the application is filed, the IC shall send the determination to the injured employee within 10 days of the date the form was filed with the IC and include the reasons for the IC’s finding of non-entitlement and instructions about the procedures for contesting the IC’s determination as provided by Section 130.108(a). Section 130.108(d).

IC Liability. An IC who unsuccessfully contests a Division determination of entitlement to SIBs is liable for:

1. All accrued, unpaid SIBs, and interest on that amount, and;
2. Reasonable and necessary attorney’s fees incurred by the IW as a result of the IC’s dispute which have been ordered by the Division or court.

Section 130.108(e).

Immediately Preceding Quarter is Actively Under Dispute. Where entitlement to the immediately prior quarter of SIBs is actively under dispute and ongoing at the time the IC receives the IW’s DWC-52 for the subsequent quarter, the IC must timely request a BRC if it wishes to dispute the subsequent quarter; failure to do so results in IC waiver as provided in Section 408.147(b). APD 032868-s (please note this case refers to a previous version of Section 130.108).

Immediately Preceding Quarter is Not Actively Under Dispute. Where an IW’s determination of nonentitlement to the immediately prior quarter of SIBs is not actively under dispute or ongoing at the time the IC receives the IW’s DWC-52 for the subsequent quarter, the IC is not required to request a BRC. APD 051130-s (please note this case refers to a previous version of Section 130.108).

Permanent Loss of Entitlement to SIBs. An IW who is not entitled to SIBs for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury. Sections 408.146(c); 130.106(a); APD 041231-s. However, an IW who has lost entitlement to SIBs under Sections 408.146(c) and 130.106(a) will become re-entitled to SIBs if the IW Is discharged from employment within 12 months of losing entitlement and the employer discharged the IW with intent to deprive the IW of SIBs.Section 130.109. An IW permanently loses entitlement to SIBs upon the expiration of the 401-week period calculated pursuant toSection 408.083. Section 130.106(b).

SIBs/Timely Filing of SIBs Application (I41) [Cross reference: SIBs (I31) ]

Filing the DWC-52. Section 130.101(1) describes the form and information required for an application for SIBs, form DWC-52 .Section 130.104(c) describes the manner in which an IW is to file a DWC-52. The IW shall file the DWC-52 no later than seven days before and no earlier than 20 days before the beginning of the quarter for which the IW is applying for SIBs. The IC is to return any DWC-52 received more than 20 days before the beginning of the quarter. Section 130.104.

Untimely Filing DWC-52. An IW who fails to timely file a DWC-52 with the IC 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 IC, unless one of the following applies:

1. the IC failed to timely mail the form to the IW as provided by Section 130.104;
2. the Division failed to issue a determination of entitlement or non-entitlement for the first quarter and the quarter applied for immediately follows the first quarter; or
3. a finding of an IR of 15% or greater in an administrative or judicial proceeding when the previous IR was less than 15%.

Section 130.105 .

IW Failed to Timely File DWC-52. On November 13, 2003, the Division sent the IW a notice of nonentitlement for the first quarter of SIBs. The IW testified at the CCH that the IC did not send him any application for SIBs. The IW filed his DWC-52 for the second, third, and fourth quarters of SIBs on September 9, 2004. The HO found that the IC failed to mail the IW an application for SIBs prior to September 9, 2004, and determined that the IC was not relieved of liability due to the IW’s failure to timely file a DWC-52 because the IC failed to provide copies of the DWC-52 in accordance with Division rules. The AP reversed the HO, noting that under Section 130.104(b), the IC is required to send the IW an application for SIBs for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW an application for SIBs arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. Because the Division determined the IW was not entitled to SIBs for the first quarter, the IW had to apply for a subsequent quarter of SIBs in order for the IC to be required to send an application to the IW under Section 130.104(b). The AP further noted that the exceptions under Section 130.105(a) do not apply to the facts of this case. The AP therefore reversed the HO and determined that the IC was relieved of liability for the payment of SIBs for the second and third quarter, and for that portion of the fourth quarter between July 10, 2004, and September 9, 2004. APD 050280 .

SIBs/Carrier Timely Dispute (I42) [Cross reference: SIBs (I31) ]

IC Contesting IW’s Entitlement or Amount of SIBs.

First Quarter. An IC wishing to dispute a Division finding of entitlement to or amount of SIBs for the first quarter shall request a BRC within 10 days after receiving the Division determination of entitlement. An IC waives the right to contest the Division determination of entitlement to or amount of SIBs for the first quarter if the request is not received by the Division within 10 days after the date the IC received the determination. Section 130.108(b) .

Subsequent Quarter with Prior Payment. If an IC disputes entitlement to a subsequent quarter and the IC has paid SIBs during the quarter immediately preceding the quarter for which the DWC-52 is filed, the IC shall dispute entitlement to the subsequent quarter by requesting a BRC within 10 days after receiving the DWC-52. An IC 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 IC received the DWC-52. The IC does not waive the right to contest entitlement to SIBs if the IC has returned the IW’s DWC-52 pursuant to Section 130.104(c).

Subsequent Quarter without Prior Payment. If an IC disputes entitlement to a subsequent quarter and the IC did not pay SIBs during the quarter immediately preceding the quarter for which the application is filed, the IC shall send the determination to the injured employee within 10 days of the date the form was filed with the IC and include the reasons for the IC’s finding of non-entitlement and instructions about the procedures for contesting the IC’s determination as provided by Section 130.108(a). Section 130.108(d).

IC Liability. An IC who unsuccessfully contests a Division determination of entitlement to SIBs is liable for:

1. All accrued, unpaid SIBs, and interest on that amount, and;
2. Reasonable and necessary attorney’s fees incurred by the IW as a result of the IC’s dispute which have been ordered by the Division or court.

Section 130.108(e) .

Immediately Preceding Quarter is Actively Under Dispute. Where entitlement to the immediately prior quarter of SIBs is actively under dispute and ongoing at the time the IC receives the IW’s DWC-52 for the subsequent quarter, the IC must timely request a BRC if it wishes to dispute the subsequent quarter; failure to do so results in IC waiver as provided in Section 408.147(b) . APD 032868-s (please note this case refers to a previous version of Section 130.108).

Immediately Preceding Quarter is Not Actively Under Dispute. Where an IW’s determination of nonentitlement to the immediately prior quarter of SIBs is not actively under dispute or ongoing at the time the IC receives the IW’s DWC-52 for the subsequent quarter, the IC is not required to request a BRC. APD 051130-s (please note this case refers to a previous version of Section 130.108).

Other Income Benefits (I00)

Abuse of Discretion/Subsequent DD. An abuse of discretion occurs when an action is taken without reference to any guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The AP has applied an abuse of discretion standard to the appointment of a second DD. APD 030467. Section 126.7(h) provides as follows:

(h) If at the time the request [for a DD] is made, the Division has previously assigned a [DD] to the claim, the Division shall use that doctor again, if the doctor is still qualified and available. Otherwise, the Division shall select the next available doctor on the Division’s [DD] List (DDL) who:

(1) has not previously treated or examined the employee within the past 12 months and has not examined or treated the employee with regard to a medical condition being evaluated in the [DD] examination;
(2) does not have any disqualifying associations as described in [Section] 180.21 of this title (relating to Division [DDL]); and
(3) has credentials appropriate to the issue in question and the employee’s medical condition.

Burden of Proof on the Party Challenging the Order. The HO found that a second DD was improperly appointed. The HO correctly placed the burden of proof on the IC, which was the party challenging the Division’s order appointing the second DD; however, the HO found that the Division abused its discretion in the appointment of the second DD. The AP reversed the HO’s determination that the second DD was improperly appointed and rendered a decision that based on the evidence, the second DD was properly appointed. In this case, the only evidence regarding why a second DD was appointed is a DRIS note reflecting that the IW would have to be sent to a different DD because the initial DD could not meet the time frame for setting up a DD appointment. Therefore, there was no showing by the IC that the Division abused its discretion in appointing the second DD. The AP stated that an order of an administrative body is presumed to be valid and that the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action, citing Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref’d). APD 042669-s.

The HO found that the second DD was improperly appointed. The HO incorrectly placed the burden of proof on the IC and found that it was not established by the IC that the first DD was unable or unwilling to continue as DD. However, the IW was the party challenging the appointment of the second DD, therefore the IW had the burden to establish that the second DD was not properly appointed. Because the HO incorrectly placed the burden of proof on the IC, the AP reversed and remanded the case back to the HO in order to apply the correct burden of proof in considering the evidence presented at the hearing. APD 042979.

Disqualifying Association Preventing a Doctor from Serving as a DD. Section 126.7(h)(2) references Section 180.21 with regard to disqualifying associations. Section 180.21(a)(2) defines a disqualifying association as any association that may reasonably be perceived as having potential to influence the conduct or decision of a doctor, which may include the situations listed in Section 180.21(a)(2)(A)-(G). The AP has determined the following to be disqualifying associations that would prevent the doctor from serving as the DD:

A doctor serving as either an IC peer review doctor or IC RME doctor and also serving as a referral doctor of the DD for the IW in the same claim. APD 100842.

Performing a DD exam in a facility of the IW’s employer. APD 101194.

The sharing of common office facilities and phone and fax numbers with a doctor with a disqualifying association. APD 101194.

The sharing of the same address, the same suite number, and the same telephone and fax numbers by the DD and the IC’s RME doctor. APD 091660.

The sharing of the same address, the same suite number, and same telephone and fax numbers by the DD and the peer review doctor. APD 091210.

See TDI-http://www.tdi.texas.gov/wc/idr/apdmincome.html#I41

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

APPEAL NO. 150098-s FILED MARCH 9, 2015

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 September 9, 2014, and November 18, 2014, in Houston, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury in the form of an occupational disease with a date of injury of [Date of Injury], and (2) because there is no compensable injury, there can be no disability “from August 28, 2013, and continuing through January 2, 2014, and at no other times.” The claimant appealed the hearing officer’s determinations stating that the hearing officer improperly placed the burden of proof on the claimant and applied the wrong legal standard. Also, the claimant contends that the hearing officer’s decision is clearly wrong, manifestly unjust and goes against the great weight of the evidence. The respondent (self-insured) responded, urging affirmance of the disputed determinations. DECISION Reversed and remanded. It is undisputed that the claimant has been employed as a firefighter with the selfinsured since August 1994, and that the claimant was diagnosed with a cancer, multiple myeloma1, in April 2013. We note that this case involves an amendment to Chapter 607 of the Government Code, by adding Subchapter B, Disease or Illnesses Suffered by Firefighters and Emergency Medical Technicians, effective September 1, 2005. See Senate Bill (S.B.) 310 of the 79th Leg., R.S. (2005). Under the facts of this case, the relevant statutes under the Government Code are as follows:

Government Code § 607.052. APPLICABILITY. (a) Notwithstanding any other law, this subchapter applies only to a firefighter or emergency medical technician who: (1) on becoming employed or during employment as a firefighter or emergency medical technician, received a physical examination that failed to reveal evidence of the illness or disease for which benefits or compensation are sought using a presumption established by this subchapter; 1 The evidence describes multiple myeloma as a cancer formed by malignant plasma cells. 150098-s.doc (2) is employed for 5 or more years as a firefighter or emergency medical technician; and (3) seeks benefits or compensation for a disease or illness covered by this subchapter that is discovered during employment as a firefighter or emergency medical technician. Government Code § 607.055. CANCER. (a) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if: (1) the firefighter or emergency medical technician: (A) regularly responded on the scene to calls involving fires or fire fighting; or (B) regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or emergency medical technician; and (2) the cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as described by Subsection (b). (b) This section applies only to a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer. Government Code § 607.057. EFFECT OF PRESUMPTION. Except as provided by Section 607.052(b), a presumption established under this subchapter applies to a determination of whether a firefighter’s or emergency medical technician’s disability or death resulted from a disease or illness contracted in the course and scope of employment for purposes of benefits or compensation provided under another employee benefit, law, or plan, including a pension plan. Sec. 3, eff. September 1, 2005. Government Code § 607.058. PRESUMPTION REBUTTABLE. A presumption under Section 607.053, 607.054, 607.055, or 607.056 may be rebutted through a showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual’s service as a firefighter or emergency medical technician caused the individual’s disease or illness.

At the CCH, the claimant testified that she developed multiple myeloma during the course and scope of her employment as a firefighter. The claimant testified she 150098-s.doc 2 regularly responded to calls involving fire and firefighting and because of the nature of her work as a firefighter she developed a cancer known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen. The claimant testified that as a firefighter she responded to a particular huge explosive fire known as the “Market Street Fire” on June 24, 1995, where she was exposed to numerous chemicals and carcinogens. Also, the claimant contends that even though a statutory presumption has been established in her favor, she additionally introduced expert medical evidence to corroborate that statutory presumption. In evidence is a medical report dated April 18, 2013, that lists the claimant’s diagnosis as multiple myeloma and subsequent reports that show the claimant has undergone treatment for her cancer. A medical report from (Dr. C) dated September 23, 2013, states the claimant’s occupational exposure and years of service as a firefighter to be the major factor in the claimant acquiring multiple myeloma. In evidence is an affidavit dated March 14, 2014, from a fellow firefighter stating that he was a firefighter for 25 years with the Houston Fire Department and has also been diagnosed with multiple myeloma.

The claimant’s exhibits include evidencebased medicine regarding multiple myeloma. The claimant testified that she has met the requirements of Government Code § 607.052 (Applicability), and a causation presumption has been established in her favor under Government Code § 607.055 (Cancer). See also Government Code § 607.057 (Effect of Presumption). The claimant contends the burden of proof shifted to the selfinsured to rebut the presumption. See Government Code § 607.058 (Presumption Rebuttable). In this case there is no dispute that the claimant has met the requirements of Government Code § 607.052 which is the applicability of Subchapter B. The claimant testified that she passed a physical exam prior to being hired as a firefighter, she has been employed as a firefighter for more than 5 years, and she is seeking workers’ compensation benefits for a disease she developed during her employment as a firefighter. At issue in this case is the interpretation of Government Code § 607.055 (Cancer), regarding firefighters that develop cancer during the course and scope of their employment. A plain reading of Government Code § 607.055 indicates that both portions of Government Code § 607.055(a)(1) and (2) must be satisfied in order for a presumption to be established that the firefighter developed cancer during the course and scope of employment. In this case, there is no dispute that the claimant met the first portion of Government Code § 607.055(a)(1)(A). The claimant testified that she regularly responded on the scene to calls involving fires or firefighting. 150098-s.doc 3 The key dispute in this case is whether the claimant met the second requirement under Government Code § 607.055(a)(2) which provides that “the cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as described by Subsection (b).” Subsection (b) states that “this section applies only to a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer.” Both parties dispute as to how the presumption is established and which party has the burden of proof as provided in Government Code § 607.055. The claimant argued that the presumption under Government Code § 607.055(a)(2) is established by showing that she was diagnosed with multiple myeloma during the course and scope of her employment as a firefighter, and therefore the burden of proof is then shifted to the self-insured to rebut that presumption. The selfinsured argued that the presumption under Government Code § 607.055(a)(2) is established if the claimant presents evidence of causation that multiple myeloma is shown to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer. In effect, the self-insured argued that the claimant has the burden of proof to establish that the International Agency for Research on Cancer has determined that multiple myeloma may be caused by heat, smoke, radiation, or a known or suspected carcinogen. The hearing officer states that the claimant met the threshold presumption, however the hearing officer also states that “there is no known factor that directly and unequivocally finds that multiple myeloma is directly caused by heat, smoke, radiation or a known or suspected carcinogen of which [the] [c]laimant was exposed during the course and scope of her employment.” The claimant states that the hearing officer improperly placed the burden of proof on the claimant and applied the wrong legal standard. In this case we look to the legislative intent regarding S.B. 310 that added the firefighter cancer presumption to the Government Code. As previously mentioned, S.B. 310 amended Chapter 607 of the Government Code by adding Subchapter B, Disease or Illnesses Suffered by Firefighters and Emergency Medical Technicians, which includes cancer as a disease or illness suffered by firefighters during the course and scope of employment. The House Research Organization (HRO) Bill Analysis for S.B. 310 states that the subject of the bill was to create a presumption about certain illnesses among emergency workers and that the medical conditions covered by the bill would include cancer and “presumption could be rebutted by showing through a preponderance of the evidence that the medical condition resulted from some factor not 150098-s.doc 4 related to an individual’s service as a firefighter or emergency medical technician.” HRO Bill Analysis, Tex. S.B. 310, 79th Leg. R.S. (2005).

Furthermore, the HRO Bill Analysis states that supporters of S.B. 310 emphasize that: [S.B. 310] would improve firefighter and emergency personnel benefit security and shift the burden of proof away from the employee to the local government or risk pool in determining whether an employee’s illness was caused by the performance of duties. Firefighters and emergency personnel often face hazardous situations and sustain injuries, illness, and death in their efforts to save lives and property. To receive medical coverage and workers’ compensation, they must document when and where they sustained injury and illness. Because of the nature of their work, determining the origin of disease exposure or injury can be impossible to prove, yet the burden of proof currently lies with the employee. This bill appropriately would create a presumption in favor of the employee for diseases, such as certain cancers and respiratory illnesses, which typically are associated with the performance of emergency personnel duties. . . . By allowing for the rebuttal of presumption in specific situations, it would not create barriers to receiving benefits in unrelated situations. HRO Bill Analysis, Tex. S.B. 310, 79th Leg. R.S. (2005). Additionally, the Senate Research Center (SRC) Bill Analysis for S.B. 310 states the author’s/sponsor’s statement of intent was to explain that: Current Texas law provides that public safety personnel who contract certain occupational diseases may receive benefits if the person can prove that the disease was caused by an exposure in the line of duty, and if a specific exposure is documented in a timely manner. There is a lack of available benefits to those who do not show the effects of a disease that they contracted in the line of duty until later. S.B. 310 provides a rebuttal presumption for firefighters and emergency medical technicians for certain diseases, including . . . cancer. State Affairs, SRC Bill Analysis, Tex. S.B. 310, 79th Leg. R.S. (2005). It is clear that the legislative intent was to shift the burden of proof from the claimant to the employer by creating a presumption of causation in favor of the firefighter or emergency medical technician. We note that the Texas Supreme Court has explained that a presumption’s “effect is to shift the burden of producing evidence to the party against whom it operates.” See Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993).

The claimant states that she has met the criteria under Subchapter B, Government Code § 607.055 and that the hearing officer also agreed that she met the threshold presumption as stated in her discussion. Based on the plain language of the statute, the legislative intent, and the hearing officer’s discussion, the evidence supports 150098-s.doc 5 that the claimant met the threshold presumption as provided in Government Code § 607.055(a)(1) and (2); that is, the claimant is presumed to have developed multiple myeloma during the course and scope of her employment as a firefighter. See also Government Code § 607.057 (Effect of Presumption). However, the claimant argues that the hearing officer misplaced the burden of proof on the claimant to show causation of a “known factor that directly and unequivocally shows that multiple myeloma is directly caused by heat, smoke, radiation or a known or suspected carcinogen of which [the] [c]laimant was exposed during the course and scope of her employment,” even though the hearing officer correctly states that she met the threshold presumption. The claimant contends that once the presumption was established, the self-insured had the burden to rebut that presumption. We agree. The hearing officer has failed to properly apply the statutory presumption to facts of this case by requiring direct and unequivocal evidence that multiple myeloma is caused by heat, smoke, radiation or a known or suspected carcinogen of which the claimant was exposed during the course and scope of her employment as a firefighter. As discussed above, the legislative intent was to create a presumption in favor of the employee and to allow for the employer to rebut that presumption by a preponderance of the evidence. Government Code § 607.058 provides that a presumption under Section 607.055 may be rebutted through a showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual’s service as a firefighter or emergency medical technician caused the individual’s disease or illness. Once the presumption is established, the burden of proof is shifted to the self-insured to rebut that presumption. The hearing officer misplaced the burden of proof on the claimant to show causation once the statutory presumption was established, and by doing so applied the wrong legal standard to determine whether the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of [Date of Injury].

Accordingly, we reverse the hearing officer’s determination that the claimant did not sustain a compensable injury in the form of an occupational disease with a date of injury of [Date of Injury], and we remand the compensable injury issue to the hearing officer to apply the correct legal standard. Since we have reversed and remanded the compensable injury determination for the hearing officer to apply the correct legal standard, we also reverse the hearing officer’s determination that because there is no compensable injury, there can be no disability from August 28, 2013, and continuing through January 2, 2014, and at no other times, and we remand the disability issue to the hearing officer for a decision consistent with the hearing officer’s determination of compensable injury on remand. 150098-s.doc 6 REMAND INSTRUCTIONS On remand, the hearing officer is to apply the correct legal standard as provided in Government Code §§§ 607.055, 607.057, and 607.058 as it pertains to the issue of compensable injury. The hearing officer is to make a finding of facts, conclusion of laws, and a decision that is consistent with this decision. The hearing officer shall make a determination on the compensable injury and disability issues, consistent with this decision. The hearing officer is not to consider additional evidence on remand.

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 Texas Department of Insurance, Division of Workers’ Compensation, 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 Appeals Panel Decision 060721, decided June 12, 2006.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Act Of God.  An IC is not liable for compensation if the injury arose out of an act of God, unless the employment exposes the IW to a “greater risk of injury from an act of God than ordinarily applies to the general public.” Section 406.032(1)(E). The court of appeals has defined “act of God” as follows:

By the term “act of God” as used herein is meant any accident that is due directly and exclusively to natural causes without human intervention and which no amount of foresight, pain or care, reasonably exercised, could have prevented. The act must be one occasioned by the violence of nature, and all human agency is to be excluded from creating or entering into the cause of the resulting mischief. The term implies the intervention of some cause not of human origin and not controlled by human power. [Emphasis added]. Transport Insurance Co. v. Liggins, 625 S.W.2d 780, 782-83 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.).

The IW has the burden of proof to establish that his or her employment exposes the IW to a greater risk of injury from the act of God than ordinarily applies to the general public. Whether or not the IW’s employment exposes him or her to a greater risk of injury than the general public is a question of fact for the HO to resolve. APD 002641.

Not an Act of God.  The following are examples of situations where the IC has argued that it should be relieved from liability under the “act of God” provision of the 1989 Act. In each example it was determined that the cause of the injury was not an act of God. It should be noted that the mere fact that the injury was not caused by an act of God does not automatically make the injury compensable. The IW is required to prove that he or she was (1) in the course and scope of employment and that (2) the injury was of such kind and character as had to do with and originated in the employer’s work, trade, business or profession. Both of these requirements present a question of fact for the HO to resolve.

Insect Bite.  Insect bites and stings have been held not to be acts of God and have been held to be compensable when causation is established. It is not enough to show that the injury occurred while in the course and scope of employment. The IW must also prove that the injury was of such kind and character as had to do with and originated in the employer’s work, trade, business or profession. Standard Fire Ins. Co. v. Cuellar, 468 S.W.2d 880 (Tex. Civ. App.—San Antonio 1971, writ ref’d n.r.e.). To show causation, the IW must prove that the conditions and obligations of the employment placed the IW in harm’s way. Texas Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730 (Tex. App.—San Antonio 1998, no writ.).

IW was employed as a school bus driver and sustained injuries when she was bitten on the knee by a brown recluse spider while driving her route. The HO found the injury to be compensable because the IW’s employment as a school bus driver put her at a greater risk of being bitten by a brown recluse spider than the general public. The HO may consider factors such as the remote location of the bus barn in which the school buses were stored and the fact that the school bus door remained open at night while parked in the barn. From these facts, the HO could conclude that the IW’s employment as a school bus driver put her at a greater risk of being bitten by a brown recluse spider than the public at large. APD 020446.

Ice.  IW was driving a truck on the highway. It was dark out. IW sustained multiple injuries when he hit a patch of ice and was involved in a rollover MVA. IC argued that the injury was caused by an act of God because the ice on the road was not foreseeable, was caused by the forces of nature without human intervention, and that the employer did not have control over the road where the MVA occurred. It was determined that the injury was not caused by an act of God. The issue is not whether the employer could have taken some action to remove the ice, the issue is whether something can be done, through human intervention, to prevent accidents on ice. The HO may consider factors such as ice on the roads can be, and often are, covered with sand by crews, chains may be used by drivers, and warning signs may be posted by highway departments. APD 991714.

Evidence that the Injury Caused by an Act of God is Compensable. 

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO’s CCH determination that the injury is compensable, and that the “act of God” exception to compensability does not apply. For each of these fact circumstances there may be cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

Lightning.  IW was employed by a retail store. The employer required all employees to park in a designated area beyond the “cart corrals.” The employer further required that all employees enter the store through the main entrance, there were no exceptions to this policy. The IW exited her car and was headed toward the entrance of the store when she was struck by lightning near the first “cart corral.” Also in the same area where the IW was struck by the lightning was a small tree supported by metal stakes four to five feet high. There was evidence that the lightning struck one of the stakes, traveled along the ground, went through the metal “cart corral,” and struck the IW. The IW also presented expert evidence that she was at greater risk of being struck by lightning because she was required to park further out in the lot and was required to use a specific entrance, thereby increasing the likelihood of an employee being injured by lightning by increasing the amount of exposure time. The expert further noted that the metal stakes also increased the risk of injury from lightning. Whether or not the IW was at greater risk than the general public is a factual question. The HO determined that the IW in this case was, and that the injury was compensable. APD 002641.

Tornado.  IW was employed as a truck driver. On the DOI, he was pulling two trailers on an interstate highway. The IW testified that he was unaware of any bad weather in the area, and that his truck was blown over by a tornado causing him injury. The trailers the IW was pulling were thirteen feet six inches tall. The HO determined that the IW was at a greater risk than the general public due to his job as an over-the-road truck driver and the size and relative weight of the trailers he was pulling. This was a factual determination for the HO to make. APD 002179.

Evidence that the Injury Caused by an Act of God is Not Compensable. 

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO’s CCH determination that the injury is not compensable, and that the “act of God” exception to compensability does apply. For each of these fact circumstances there may be cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

Lightning.  IW was employed as a custodian. Part of his usual duties was to pick up trash outside of the building. IW testified that on the DOI, there was lightning in the area but that his supervisor refused to allow him to seek shelter. IW testified that he was directed to use a metal stick to pick up the trash. IW was struck by lightning causing injury. The HO determined that the IW was not at greater risk of injury from lightning than the general public. The HO noted that at the time of the lightning strike, the IW was near a telephone pole and two buildings which were higher than the IW. The HO determined that the mere fact that the IW was using a metal stick was insufficient for him to prove he was at greater risk of injury from lightning than the general public. APD 951820.

Tornado.  IW was working as a driver’s education teacher. On the DOI, the weather deteriorated and strong winds were blowing, making it difficult for her students to control the self-insured’s vehicle which she was using to instruct them. The IW decided to end the instruction early. IW testified that the self-insured’s policy required her to return the drivers’ education vehicle back to its premises and that she was not permitted to drive it home. The IW returned the vehicle to the self-insured’s premises, got her own vehicle, and started for home. On the way home, the IW encountered a tornado and was injured by debris which crashed through her back window. The IW asserted that she was at a greater risk of injury from the tornado than the general public because she had to return the self-insured’s vehicle to its premises before seeking the shelter of her home. The HO determined that the IW was not at a greater risk of injury from the tornado than the general public at the time of her injury. APD 002884.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Appeals Panel Decision Manual – Acronyms

Appeals Panel Decision Manual – Liability/Compensability Issues

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.