AP Finds ALJ Made Two Errors in SIBs Case

The Appeals Panel has reversed an ALJ’s Decision and Order and rendered a Decision that illustrates two important rules when dealing with SIBs liability. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 182242, decided December 10, 2018.

The ALJ resolved the disputed issues by deciding that: (1) the claimant was entitled to SIBs for the fifth quarter; (2) the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the fifth quarter by failing to timely request a BRC; and (3) the carrier was relieved of liability for SIBs because of the claimant’s failure to timely file an Application for SIBs (DWC-52) for the fifth quarter for the entire fifth quarter. The claimant appealed the ALJ’s determinations on carrier waiver and timely filing. The carrier responded, urging affirmance of the ALJ’s determinations. The carrier did not appeal the ALJ’s determination that the claimant was entitled to SIBs for the fifth quarter and that determination became final pursuant to Section 410.169.

The Appeals Panel first addressed the claimant’s contention that the carrier waived its right to contest the claimant’s entitlement to SIBs by failing to timely request a BRC. In this connection, the Appeals Panel noted that the Division had issued a Decision and Order in June 2017 that found the claimant to be entitled to SIBs for the fourth quarter. The carrier paid the fourth quarter pursuant to that Decision.

The carrier received the claimant’s DWC-52 for the fifth quarter on June 12, 2018, more than a year after the Division determination on the fourth quarter of SIBs. The carrier sent the claimant a notice of non-entitlement for the fifth quarter of SIBs seven days later, on June 19, 2018. The carrier did not file a request for a BRC to dispute the claimant’s entitlement to SIBs for the fifth quarter.

The Appeals Panel agreed with the claimant that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fifth quarter, referencing the following statutory provision and rule:

Section 408.147(b) provides as follows:

If an insurance carrier fails to make a request for a [BRC] within 10 days after the date of the expiration of the impairment income benefit period or within 10 days after receipt of the employee’s statement, the insurance carrier waives the right to contest entitlement to [SIBs] and the amount of [SIBs] for that period of [SIBs].

28 TEX. ADMIN. CODE § 130.108(c) (Rule 130.108(c)) provides as follows:

Insurance Carrier Dispute; Subsequent Quarter With Prior Payment. If an insurance carrier disputes entitlement to a subsequent quarter and the insurance carrier has paid [SIBs] during the quarter immediately preceding the quarter for which the [DWC-52] is filed, the insurance carrier shall dispute entitlement to the subsequent quarter by requesting a [BRC] as provided by [Rule] 141 of this title (relating to Dispute Resolution—[BRC]) within 10 days after receiving the [DWC-52]. An insurance carrier waives the right to contest the entitlement to [SIBs] for the subsequent quarter if the request is not received by the [Division] within 10 days after the date the insurance carrier received the [DWC-52]. The insurance carrier does not waive the right to contest entitlement to [SIBs] if the insurance carrier has returned the injured employee’s [DWC-52] pursuant to [Rule] 130.104(c) of this title (relating to Determination of Entitlement or Nonentitlement for Subsequent Quarters).

In this case, the carrier had paid the prior quarter of SIBs and did not request a BRC to dispute entitlement to SIBs for the fifth quarter. Accordingly, the Appeals Panel reversed the ALJ’s determination that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the fifth quarter by failing to timely request a BRC and rendered a new Decision that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fifth quarter by failing to timely request a BRC.

The Appeals Panel next addressed the claimant’s challenge to the ALJ’s ruling on the timeliness of the SIBs application and the carrier’s payment obligation. The Appeals Panel affirmed the ALJ’s determination that the carrier was relieved of liability for SIBs because of the claimant’s failure to timely file a DWC-52 for the fifth quarter for the entire fifth quarter.

Section 408.143(c) provides that failure to file a statement under that section relieves the insurance carrier of liability for SIBs for the period during which a statement is not filed. Rule 130.104(c) provides, in part, that except as otherwise provided in that section, a DWC-52 shall be filed no later than 7 days before, and no earlier than 20 days before, the beginning of the quarter for which the injured employee is applying for SIBs. Rule 130.105(a) provides, in part, that an injured employee who does not timely file a DWC-52 with the insurance carrier shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the insurance carrier. Rule 130.105(a) does contain some exceptions to the timely filing of the SIBs application, but none of those exceptions applied in this case.

The evidence reflects that the claimant filed a DWC-52 for the fifth quarter on June 12, 2018. Although we rendered in this decision that the carrier waived its right to contest the claimant’s entitlement to SIBs for the fifth quarter, the evidence established that the claimant did not file his DWC-52 for the fifth quarter until June 12, 2018; therefore, the claimant shall not receive the fifth quarter SIBs from April 9 through July 8, 2017. See Appeals Panel Decision 130837, decided May 20, 2013.

The appeal contains two important lessons for parties dealing with SIBs applications. First, where a carrier has paid benefits on a prior quarter, the only permissible way for the carrier to dispute a claimant’s entitlement to SIBs for the next quarter is to timely request a BRC with the Division. Second, even when a carrier has waived its right to contest a claimant’s entitlement to SIBs for a particular quarter, a claimant must still timely file an application for that quarter in order to receive those benefits.