AP: Claimant Failed to Qualify for SIBs During Winter School Break
The appeals panel has issued a decision reversing a hearing officer’s determination that a claimant was entitled to SIBs for the sixth compensable quarter, and rendering a decision that the claimant was not entitled to SIBs for that quarter. The appeals panel posted its decision in Appeals Panel Decision No. 150797 on June 9, 2015.
The claimant compensably injured his left knee and was ultimately assigned an impairment rating of 15% or greater. The claimant testified that during the qualifying period for the sixth compensable quarter he was in compliance with his Individualized Plan for Employment by attending school full-time, and that his IPE did not require him to look for work. The claimant testified that at the end of the fall semester, he studied math and registered for the spring semester. Furthermore, the claimant testified that due to scar tissue he is unable to sit in one position or walk for a long time, and has to keep his knee propped up during the day.
The qualifying period for the sixth quarter began October 4, 2014, and ended January 2, 2015. The parties stipulated that during the qualifying period for the sixth quarter, the claimant was unemployed. The claimant did not attend school during the winter break from December 22, 2014, through January 2, 2015, which encompasses weeks 12 and 13 of the qualifying period for the sixth quarter. The claimant testified that during weeks 12 and 13, he used that time to study and register for the next semester.
The carrier challenged the claimant’s entitlement to SIBs for the sixth quarter, pointing out that the claimant made no effort to obtain employment in accordance with the Labor Code during weeks 12 and 13. The hearing officer rejected the carrier’s argument. The hearing officer made a specific written finding regarding whether the claimant had reasonable grounds for failing to make five or more job contacts during each week of the qualifying period for the sixth quarter of SIBs. In the Discussion section of her decision and order, the hearing officer stated:
While it is apparent that the [c]laimant did not document any work search efforts for weeks 12 and 13, December 20, 2014, through January 2, 2015, he was still actively involved in the IPE, and he demonstrated that he had reasonable grounds for failing to comply with the work search requirements. . . . Based on [the] [c]laimant’s limited abilities and the short period of time between semesters, the evidence is sufficient to prove that [the] [c]laimant had reasonable grounds for failing to comply with the work search requirements for weeks 12 and 13. Although [the] [c]laimant did not successfully complete all his classes for the fall semester, he was actively enrolled and participating in 12 hours of credit and maintained a GPA over 2.0, in compliance with his IPE requirements.
The appeals panel reversed the hearing officer’s decision and rendered a decision that the claimant was not entitled to SIBs for the sixth compensable quarter. The appeals panel wrote:
In Appeals Panel Decision (APD) 100615-s, decided July 23, 2010, the hearing officer determined the claimant made a reasonable effort to fulfill her obligations in accordance with the terms of her IPE for the SIBs quarter in dispute, however the claimant did not look for work in week 12 of the qualifying period for the SIBs quarter in dispute. In that case, the claimant presented no evidence of any other active efforts during week 12 to meet the work search requirements of Rule 130.102(d)(1). The Appeals Panel reversed the hearing officer’s determination and rendered a new decision that the claimant was not entitled to SIBs for the quarter in dispute. Similarly, in APD 101913, decided February 18, 2011, the claimant contended that she did not have to perform the required work search requirements of Rule 130.102 because she was satisfactorily participating in her IPE during the qualifying period and was not required nor expected to attend class or look for work during the summer months of the qualifying period for the sixth quarter of SIBs. The only activity the claimant performed each week of the qualifying period was self-study of a math workbook which was not part of her IPE. In that case, the Appeals Panel stated that the claimant did not have reasonable grounds for failing to comply with the work search requirements of Rule 130.102, because DARS did not require the claimant to attend summer school or look for employment during the summer. The Appeals Panel reversed the hearing officer’s determination and rendered a new decision that the claimant is not entitled to SIBs for the quarter in dispute.
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In the instant case, the hearing officer determined the claimant demonstrated reasonable grounds for failing to document five job contacts per week for weeks 12 and 13, beginning December 20, 2014, through January 2, 2015, although it is undisputed that the claimant did not look for work during weeks 12 and 13 and no evidence was offered that the claimant performed any other activity in connection with his IPE for weeks 12 and 13 of the qualifying period in dispute. Furthermore, the claimant presented no evidence of any other active efforts during weeks 12 and 13 to meet the work search requirements of Rule 130.102(d)(1). Under the facts of this case, we do not agree with the hearing officer that because the claimant had limited abilities and the short period of time between semesters, the evidence is sufficient to prove that the claimant had reasonable grounds for failing to comply with the work search requirements for weeks 12 and 13.
Rule 130.102 provides that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the specified work search requirements each week during the entire qualifying period. The preamble to Rule 130.102 states “subsection(d)(1) is also amended to add ‘each week’ before ‘during’ and ‘entire’ before ‘qualifying period’ to clarify that the injured employee’s work search efforts were to continue each week during the entire qualifying period.” (34 Tex. Reg. 2140, 2009). The appeals panel has refused to permit hearing officers to utilize the “reasonable grounds for failing to document job contacts” exception as an end run around the specific, regulatory requirements for demonstrating SIBs entitlement.