Appeals Panel Holds that Disability can Occur Without DWC-73s
The Appeals Panel has reversed the decision of a Hearing Officer who concluded that that a claimant’s disability was limited “only” to the periods of time reflected in Work Status Reports (DWC-73s) that were offered into evidence. In Appeals Panel Decision Number 160131, decided March 30, 2016, the Appeals Panel remanded that portion of the disability issue which the Hearing Officer found no disability to the Hearing Officer to determine after a consideration of all the evidence what remaining periods, if any, the claimant had disability.
In this case, the disability period in dispute is July 29, 2015, through the date of the CCH, December 15, 2015. The periods of disability found by the Hearing Officer match the periods covered by the DWC-73s identified in her decision. The Hearing Officer provided no rationale for her determination that the compensable injury was not a cause of the claimant’s inability to obtain and retain employment for the time periods not covered by the DWC-73s mentioned in her decision. The Appeals Panel reversed the disability issue for the Hearing Officer to either provide a valid rationale or to change her decision regarding disability for those periods of time.
We have often held that a claimant can move in and out of disability. See APD 031317, decided June 25, 2003. The claimant’s uncontroverted testimony; however, was that he had been unable to perform the duties of an automotive mechanic since the date of injury and that he had completed “one round of therapy” but that additional treatment had been requested.
* * * * *
We reverse that portion of the Hearing Officer’s determination that the claimant had disability “only beginning” and remand that portion of the disability issue in which the Hearing Officer found no disability (August 16 through October 5, 2015; and October 28 through November 23, 2015), to the Hearing Officer for further action consistent with this decision.
The decision reinforces the timeworn rule that disability can be established by an injured workers’ testimony alone, if believed by the finder of fact, and extends that rule to mean that a carrier must affirmatively disprove the existence of disability during periods of lost time occurring in the gaps between periods covered by Work Status Reports.
FOLIO
