AP Reverses Decision Denying SIBs Benefits
The appeals panel has reversed a contested case hearing decision and order issued by an Administrative Law Judge who had determined that an injured worker was not entitled to SIBs for the sixth quarter. The decision is important because it reveals a level of scrutiny that is not ordinarily given in SIBs cases.
The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 200033, decided February 28, 2020.
The claimant included with his completed DWC-52 supporting documentation in the form of printouts of confirmations of his work search efforts through indeed.com. The appeals panel noted that in Texas Division of Workers’ Compensation Appeals Panel Decision No. 100229-s, the preamble to Rule 130.102(d)(1)(D) stated that “work search efforts” encompass both job applications and work search contacts as described by Texas Workforce Commission rules.
The claimant testified at the CCH that he used indeed.com as an internet job search engine to make weekly job searches. The claimant’s DWC-52 reflected a June 26, 2019 submission through Indeed, as one of the three job searches he made in week five of the qualifying period.
The ALJ, however, gave credence to a report from a vocational rehabilitation provider that found deficiencies in the claimant’s reported job searches for week five. The ALJ noted that the vocational rehabilitation provider reported that it had contacted the employer (the Indeed client) who confirmed they did not receive an email regarding the claimant or a resume from the claimant. The ALJ also noted that the employer conducted a second search and confirmed by email that no application from the claimant could be found.
The ALJ wrote:
Claimant did not submit an acknowledgement or receipt from “indeed.com” for this employer like he did for many other employers. [The] [c]laimant appears to have consistently and frequently attached receipts or acknowledgements from “indeed.com” for applications he noted on the weekly logs. Therefore, the lack of a receipt or acknowledgement for . . . [employer] . . . is some evidence that [the] [c]laimant did not submit an application [for this position].
The appeals panel, concluded, however, that the ALJ had erred in stating there was no receipt of acknowledgement for this employer. It pointed out that the record reflected the existence of a document titled “Indeed Application: Office Assistant/Receptionist.” The panel stated that this document reflected that indeed.com had sent an email to the claimant on June 26, 2019, confirming the submission of a job application for an office assistant/receptionist position with the employer.
The appeals panel considered this to be a misstatement of the evidence, writing:
The ALJ based his unfavorable assessment of the credibility of the claimant’s job searches, in part, on his error that there was no receipt of acknowledgement for (employer), which is a misstatement of the evidence. Because the ALJ’s determination that the claimant is not entitled to SIBs for the sixth quarter is based on a misstatement of the evidence, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the sixth quarter and we remand the issue of entitlement to sixth quarter SIBs to the ALJ for further action consistent with this decision.
The decision is interesting because the appeals panel, in the past, has been challenged to more closely review job applications and has declined to do so on the basis that mere “job contacts” or “work search contacts” were sufficient to satisfy the standard. The agency generally will not permit its ALJs to “look behind” the contact to determine whether it reflected a genuine attempt to become reemployed.
In this case the appeals panel closely reviewed the contact and reversed an ALJ who clearly did not believe that the purported contact had satisfied the statutory standard.
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