AP Holds that Employee Who Received Assault Leave was Still Disabled
The Appeals Panel has reversed the decision of an ALJ that found an employee had not sustained disability because she had received assault leave during a period of lost time from the compensable injury. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 180294, decided March 29, 2018.
The disability issue before the ALJ was whether the claimant had disability from July 17, 2015, to the date of the CCH resulting from an injury. The ALJ stated in the Discussion section of her Decision and Order that the compensable injury was not a cause of the claimant’s inability to earn her preinjury wage from July 17, 2015, through the date of the CCH because the claimant had received her preinjury wage in the form of assault leave during this time. The Appeals Panel disagreed.
The Appeals Panel cited a series of analogous cases where injured workers had received salary continuation during a period in which they had not been able to work and the Appeals Panel had concluded that such claimants were disabled because those payments were not considered to be remuneration for services that they had rendered. Because the claimant’s assault leave payments in this case were not considered to be remuneration for services rendered, the Appeals Panel applied those cases and determined that disability existed.
In the case on appeal, the claimant testified that she was unable to work due to the compensable injury for the period of time from July 17, 2015, and continuing to the date she returned to work for the employer during the last week of July, 2017, and that during such period she received assault leave pay in an amount equal to her preinjury wage; however, the evidence was uncontroverted that the claimant performed no personal services for the employer in exchange for the assault leave pay she received. The ALJ’s statement that the claimant received her preinjury wage from July 17, 2015, through the date of the CCH is legally incorrect because assault leave payments received by the claimant during the time period from July 17, 2015, until the date the claimant returned to work in late July, 2017, are not wages under the 1989 Act. For such reason, we hold the ALJ erred in finding that the claimant had no disability for the period beginning July 17, 2015, during which period she was not working and receiving assault leave pay. We are unable to render a new decision regarding disability in this case because the evidence does not establish the date the claimant returned to work or whether, upon her return to work, she received wages equivalent to her preinjury wage. We accordingly reverse the ALJ’s determination that the claimant did not have disability from July 17, 2015, through the date of the CCH as a result of the compensable injury of (date of injury), and remand the issue of disability for that period to the ALJ for further action consistent with this decision.
The Appeals Panel was unable to render a new decision regarding disability because the evidence did not establish the date the claimant returned to work or whether, upon her return to work, she received wages equivalent to her preinjury wage. Accordingly, the Appeals Panel remanded the case for the hearing officer to make findings consistent with its decision and the evidence.
The issue of the amount of TIBs to which the claimant might be entitled was not raised as an issue in the case. That amount, may be affected by the claimant’s receipt of assault leave pay under the Texas Education Code. As a result, the claimant’s victory on appeal may be pyrrhic. The carrier would still be able to adjust the claimant’s TIBs because of the assault leave pay since that issue has not been adjudicated. See Appeals Panel Decision (APD) 061713-s decided October 20, 2006.
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