Appeals Panel Reverses ALJ Who Wrongly Found Disability
The appeals panel has reversed the decision and order of an administrative law judge who found that an injured worker had disability during weeks he testified he earned more than his preinjury average weekly wage. The decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 211214, decided September 30, 2021, remanded the disability issue to the ALJ to make a determination considering the claimant’s AWW and the claimant’s earnings in each week of the disputed disability period that is supported by the evidence.
The claimant testified that he worked for various employers during the disability time period in dispute. Numerous pay stubs from those employers were in evidence. In her discussion of the evidence, the ALJ noted that the claimant stated that during the period in dispute he was able to earn his pre-injury wage during some of the weeks.
The ALJ, in her discussion of the evidence, stated that the claimant provided paycheck stubs, which, when compared to his pre-injury earnings statement, showed that he frequently earned less than his pre-injury wages during the disputed period. However, despite her acknowledgement of the evidence that the claimant was able to earn his pre-injury wage for some of the weeks in dispute, the ALJ determined that the claimant had disability for the entire period.
The appeals panel wrote that “when a worker has returned to work after an injury and has earned wages that he contends are less than his prior wage, a determination of the amount of the pre-injury average weekly wage (AWW) is essential to an accurate analysis of the disability issue and is effectively subsumed in that issue. See APD 021051, decided June 20, 2002.”
The appeals panel concluded that the ALJ’s determination that the claimant had disability for the entire time period at issue was against the great weight and preponderance of the evidence. Therefore, the appeals panel reversed the ALJ’s determination that the claimant had disability for the disability period in dispute and remanded that issue to the ALJ to make a determination considering the claimant’s AWW and other necessary findings.
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