AP Reverses Another ALJ for Misstating the Evidence

The Appeals Panel has reversed another ALJ’s Decision and Order based upon the panel’s perception that the judge misstated the evidence in a material way. The Appeals Panel has previously done so in the context of an intoxication case, Texas Division of Workers’ Compensation Appeals Panel Decision No. 181781, decided October 2, 2018 and a course and scope case arising out of a traffic accident, Texas Workers’ Compensation Appeals Panel Decision No. 151511.

The most recent appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 182565, decided January 9, 2019. This is a SIBs case. The claimant sought recovery based on her allegation that she had demonstrated an active work search effort each week of the qualifying period by meeting the required minimum number of work search contacts established by the Texas Workforce Commission, which were required for unemployment in the claimant’s county of residence during each week of the qualifying period of the sixth quarter of SIBs.

The ALJ noted in the discussion portion of her Decision that the claimant completed at least three work searches during each week of the sixth quarter qualifying period, except in Week 7 which was from mid-May to late May. The claimant testified that she mixed up the dates due to the loss of her mother, two uncles, and her dog. However, the ALJ noted that the deaths occurred in late March and early April and the claimant failed to explain why she was able to complete her job searches for Weeks 1 through 6 but was more affected in Week 7. Therefore, the ALJ concluded that the claimant was not entitled to SIBs for the sixth quarter. The claimant appealed.

The Appeals Panel observed that the claimant had also sought to recover based on an alternate theory, that she had actively participated in a vocational rehabilitation program during each week of the qualifying period. The Appeals Panel describes the criteria for recovery under this theory as follows:

Section 408.1415(a)(1) provides that to be eligible to receive SIBs, a recipient must provide evidence satisfactory to the Division of active participation in a VRP conducted by the Department of Assistive and Rehabilitative Services (DARS) or a private vocational rehabilitation provider. Rule 130.101(8) defines VRP as any program, provided by the TWC, a comparable federally-funded rehabilitation program in another state under the Rehabilitation Act of 1973, as amended, or a private provider of vocational rehabilitation services for the provision of vocational rehabilitation services designed to assist the injured employee to return to work that includes a vocational rehabilitation plan. A vocational rehabilitation plan, also known as an Individualized Plan for Employment (IPE) at TWC, includes, at a minimum, an employment goal, any intermediate goals, a description of the services to be provided or arranged, the start and end dates of the described services, and the injured employee’s responsibilities for the successful completion of the plan.

The ALJ noted in her discussion that “the claimant did not offer an IPE into evidence to support her claim.” The Appeals Panel did not find that to be the case, writing:

A review of the evidence reflects that the claimant offered an IPE into evidence and it was admitted. The ALJ based her determination of non-entitlement to SIBs on a misstatement of the evidence. Accordingly, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the sixth quarter and remand the issue of entitlement to sixth quarter SIBs to the ALJ for further action consistent with this decision.

It is unclear from the Decision why the Appeals Panel remanded the case to the ALJ rather than rendering a Decision in favor of the claimant.