AP Renders Decision for Carrier in SIBs Case
The appeals panel has reversed an ALJ’s decision and order and rendered a decision that an injured worker failed to demonstrate entitlement to SIBs for a disputed quarter. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 191788, decided December 4, 2019. The case addresses two different elements of SIBs qualifications.
The ALJ resolved the disputed issue by deciding that the claimant was entitled to supplemental income benefits for the fifth quarter, June 26 through September 24, 2019. The carrier appealed the ALJ’s determination. The claimant filed a response to the carrier’s appeal, urging affirmance of the decision.
The parties stipulated that: the claimant had sustained a compensable injury with a 15% or greater impairment rating; the claimant had not commuted any portion of the impairment income benefits; the qualifying period for the fifth quarter of SIBs began on March 14, 2019 and ended on June 12, 2019; and the minimum number of job applications or work search contacts required pursuant to Rule 130.102(f) for the fifth quarter qualifying period was 3 per week for Harris County.
The claimant was employed as a mover when he injured his left knee while lifting a motorcycle. He underwent a total knee replacement on December 28, 2016, that led to complications. The implant had to be removed on May 3, 2018, and a revision total knee replacement was performed on July 26, 2018.
The claimant’s theories of entitlement for fifth quarter SIBs were based on both a total inability to work for the first 3 weeks of the qualifying period, March 14 through April 3, 2019, and active work search efforts for the remaining ten weeks of the qualifying period. The appeals panel’s decision focused on the claim of total inability to work during the first 3 weeks of the qualifying period.
The appeals panel reasoned that Rule 130.102(d)(1) states, in pertinent part, that an injured employee demonstrates an active effort to obtain employment if he “has 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.” The appeals panel noted that in Appeals Panel Decision 012286 the Appeals Panel had held that “the narrative report from the doctor must specifically explain how the compensable injury causes a total inability to work.”
In ruling in favor of the carrier, the appeals panel wrote:
Regarding weeks 1 through 3 of the fifth quarter qualifying period, the claimant attached to his Application for [SIBs] (DWC-52) the June 19, 2019, report of (Dr. S), his treating doctor, as a narrative report from a doctor which purportedly explains how the compensable injury caused a total inability to work. Regarding the claimant’s ability to work, Dr. S stated:
Due to his medical condition, he has been unable to work. He has difficulty with household chores and has not been able to participate in recreational activities. He is de-conditioned due to overall inactivity. He is unable to work in any capacity for the period of [March 14, 2019] to [March 28, 2019]. Due to his pain and functional limitations, he is unable to walk and stand for prolonged periods of time. He is unable to do heavy lifting, stoop or squat.
Dr. S’s narrative does not specifically explain how the compensable injury caused a total inability to work in any capacity. Additionally, a Work Status Report (DWC-73) from Dr. S dated March 28, 2019, indicates that the claimant can return to work with restrictions as of that date.
In addition, a designated doctor’s report and attached DWC-73 indicated that the claimant was able return to work in a restricted capacity. The appeals panel concluded that these records constituted other records that show the claimant was able to return to work.
Because there was no narrative report from a doctor that specifically explained how the compensable injury caused a total inability to work in any capacity during the first 3 weeks of the fifth quarter qualifying period and because other records in evidence showed that the claimant was able to return to work during this period, the claimant failed to demonstrate an active effort to obtain employment each week during the entire qualifying period. Accordingly, the appeals panel reversed the ALJ’s determination that the claimant was entitled to SIBs for the fifth quarter and rendered a new decision that the claimant was not entitled to SIBs for the fifth quarter, June 26 through September 24, 2019.
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