Appeals Panel Renders Decision for Carrier in SIBs “No-Ability” Case
The Appeals Panel has reversed the decision and order of a benefit contested case Hearing Officer in favor of an injured worker in a SIBs case and has rendered a new decision that the claimant failed to prove entitlement to SIBs under a “no-ability” theory of recovery.
In Appeals Panel Decision No. 170345, decided April 6, 2017, the Hearing Officer decided six disputed quarters of SIBs. Among the issues appealed to the Appeals Panel, the carrier contended that the claimant failed to prove that he was entitled to recovery SIBs for the fifth compensable quarter, using a “no-ability” theory. The Appeals Panel agreed with the carrier.
The Hearing Officer found that during the qualifying period for fifth quarter SIBs the claimant was unable to perform any type of work in any capacity, and therefore determined that the claimant is entitled to fifth quarter SIBs.
Rule 130.102(d)(1) provides, in pertinent part, that an injured employee can demonstrate an active effort to obtain employment by proving that during each week of the qualifying period he had been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work.
In Appeals Panel Decision No. 012286, the Appeals Panel “held that the narrative report from the doctor must specifically explain how the compensable injury causes a total inability to work.” See also Appeals Panel Decision No.032173, and 111188.
In finding that the claimant had a total inability to work within the meaning of Rule 130.102, the Hearing Officer relied on a Work Status Report and medical notes from Dr. O taking the claimant off work from March 16 through April 14, 2016. The Appeals Panel described this medical evidence as follows:
In a record dated March 17, 2016, Dr. O stated that the claimant was recovering from surgery to the right shoulder and finished chronic pain management program. However, she noted that (Dr. B) thought the claimant could “maybe . . . be back to school soon” and noted that the claimant thought “that maybe she could go back to work if could (sic) go to different classroom.” In a record dated April 14, 2016, Dr. O noted that the claimant thought that “maybe she could go back to work now with progress of shoulder but would not be able to restrain children so wouldn’t be appropriate for her to be in her previous classroom.” In that same record Dr. O recommended that the claimant return to a classroom that would not require her to physically restrain children or have high likelihood of repeat assault by a child. In another record dated May 10, 2016, Dr. O stated that she thinks the claimant is “doing well in getting back to work.”
This evidence, the Appeals Panel held, did not provide an explanation specifically explaining how the compensable injury caused a total inability to work. Because there was no narrative from a doctor that specifically explained how the compensable injury caused a total inability to work in any capacity the Appeals Panel reversed the Hearing Officer’s determination that the claimant was entitled to fifth quarter SIBs, and rendered a new decision that the claimant was not entitled to fifth quarter SIBs.
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