Texas: Appeals Panel Decision Review (6/14/2010)

By Stuart D. Colburn, Downs Stanford, P.C.

APD 091807 (2010 TX Wrk. Comp. LEXIS 11)

Issue: TIBs

At the first Contested Case Hearing, the parties stipulated an average weekly wage of $677.38. Further, the parties did not appeal the Hearing Officer's finding the post injury earnings from the bona fide job offer of employment (BFOE) is $440 a week at $11 per hour and therefore is final.

The Hearing Officer found the claimant was entitled to partial temporary income benefits in the amount of $5,033.96.

The carrier argued the weekly post injury earnings (PIE) should be $440.00 per week pursuant to the BFOE. However, the claimant did not actually work the full hours per week pursuant to the BFOE nor was he paid $440.00 a week for every week in consideration. The Appeals Panel writes, “The evidence indicates that the claimant was not able to work 40 hours per week for various reasons including weather conditions and economic conditions that affected the employer.”

The Appeals Panel recalculated the benefits owed. Even though the carrier appealed the amount of temporary income benefits owed ($5,032.96), the Appeals Panel reversed and ordered the carrier to pay more money to the injured worker: $5,239.85. Therefore, the amount of the bona fide job offer is not considered PIE when the claimant actually worked. The claimant did not work the full hours offered in the bona fide job offer due to weather and economic conditions affecting the employer. In such cases, carrier will owe partial TIBs even apparently when the underemployment is not due to the compensable injury.

APD 092051 (2010 TX Wrk. Comp. LEXIS 16)

Issue: 90 day rule

The Hearing Officer found that the first certification of maximum medical improvement and impairment rating did not become final. The doctor who assigned the first impairment rating examined the claimant and reviewed the medical reports including an MRI. The narrative report found no objective findings or significant signs of radiculopathy. At that time, no doctor diagnosed radiculopathy and the claimant had returned back to work lifting approximately 50 lbs. Thereafter, the claimant underwent additional testing including an EMG/NCV showing acute L5 radiculopathy. The doctors diagnosed clinical signs of radiculopathy and the claimant underwent lumbar surgery at L5-S1. Citing Appeals Panel Decision No. 052666-S, the Appeals Panel states that “just because there is subsequent surgery or treatment which proves beneficial to the patient does not automatically, or in this case, amount to inadequate treatment.” Applying the rationale of APD 052666-S, the Appeals Panel writes, “In this case, there is no compelling medical evidence that any of the claimant's treatment prior to Dr. G's certification on March 18, 2008, was improper or inadequate.” According to the Appeals Panel, the claimant did not offer compelling medical evidence of either (1) received improper or inadequate treatment for his injury, or (2) the failure to perform spinal surgery earlier amounted to improper and inadequate treatment.

APD 092043 (2010 TX Wrk. Comp. LEXIS 12)

Issue: SIBs

The Hearing Officer found the claimant was entitled to the 2^nd and 3^rd quarter of supplemental income benefits. The claimant did not make an active work search effort documented by job applications during the two qualifying periods. However, the DWC-52 applications have attached sheets showing job contacts through the Texas Workforce Commission (TWC). However, the claimant only began working with TWC in the middle of the third quarter. The claimant cannot testify to additional job searches that were not documented on the initial SIBs application, citing Appeals Panel Decision No. 000505. The Appeals Panel writes, “We have held that the documentation requirement of Rule 130.102(e) is mandatory and undocumented employment contacts may not be considered in arriving at the good faith determination.” Therefore, the claimant was not entitled to supplemental income benefits for the 2^nd and 3^rd quarters.

APD 091971 (2010 TX Wrk. Comp. LEXIS 14)

Issue: DWC-41 Claim for Compensation Form

The claimant stepped on a sharp object aggravating his pre-existing diabetes and underwent a partial amputation of his left foot. The claimant filed a DWC-41 with the Division of Workers' Compensation more than one year after the date of injury. The employer was not notified of the claimed injury until after the DWC-41 was filed with the Division. The Hearing Officer found the claimant's obligation to file a DWC-41 within one year was tolled pursuant to Texas Labor Code § 409.008. The Appeals Panel writes, “In the instant case, the employer was not required to file a DWC-1 pursuant to Section 409.005 before the claimant was required to file his DWC-41 because the employer did not have notice or knowledge of the claimed injury until after the claimant filed his claim on April 28, 2009.” Thus, the tolling provisions do not apply unless there is a duty to file the DWC-1. Since there was no duty to file the DWC-1 by the employer, the claimant still had the obligation of filing the DWC-41 within one year. Because he failed to do so, the tolling provisions did not operate to extend the deadline to file the DWC-41.

APD 091960 (2010 TX Wrk. Comp. LEXIS 13)

Issue: Maximum Medical Improvement

The treating doctor certified maximum medical improvement with a 1% impairment rating. The designated doctor believed the claimant's injury extended to and included a tibial collateral ligament damage which the claimant had not yet been treated. He changed the MMI date from May 12, 2008 to August 12, 2008. However, he did not complete a DWC-69. The Division held that Rule 130.1 requires a certification of maximum medical improvement and determination of an impairment rating requires completion, signing, and submission of a DWC-69 and narrative report. Because the designated doctor did not issue or sign a DWC-69, his certification of maximum medical improvement and impairment rating is invalid. The treating doctor's certification of MMI is overcome by the designated doctor even though there is no DWC-69 since the designated doctor did not believe the claimant reached maximum medical improvement on May 12, 2008. Moreover, the designated doctor felt the claimant required additional treatment for the collateral ligament.

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