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The Third Court of
Appeals decision issued on February 28, 2023 in Texas Department of Insurance, Division of Workers’
Compensation v. Accident Fund Insurance Company of America and Texas Cotton
Ginners’ Trust prevents the Division of Workers’ Compensation (DWC)
from using work search contacts as a substitute for job applications submitted
to a prospective employer by a worker eligible to apply for Supplemental Income
Benefits. Experience over the years since 2005 when the Texas Legislature
did away with the “good faith” SIBs standard and replaced it with the four objectively
verifiable methods by which a worker qualifies for SIBs, showed that the
methods used gradually devolved over time.
In recent years, SIBS applications were approved by the DWC administrative law judges where only work search contacts were submitted in a check-box manner with no supporting documentation that the worker made an active, meaningful, and personal work search. During discovery, DWC admitted that its position was that solo job seekers do not need to personally file any job applications to qualify for SIBs: they could rely on "work search activities" filed by another on their behalf. Applications were rare where the worker attested to participating in a vocational rehab program, participated with the Texas Workforce Commission (TWC), or documented his job search with copies of applications submitted to employers.
As a result, many carriers rubber-stamped and approved applications showing only contacts, knowing that disputing a workers’ entitlement to SIBs was a fool’s errand because of the DWC’s instructions through its Appeals Panel Manual to system participants simply to count whether the requisite number of “contacts” was made. For the same reason, carriers were not offering vocational rehabilitation programs to their injured workers eligible to apply for SIBs. And the incentive was removed for workers to go through the TWC, an agency with a variety of resources for Texas workers who can work in some capacity to find employers who post job openings for which the worker would qualify.
What can we expect next? We can expect closer scrutiny by the DWC when considering SIBs applications, either at the first quarter or subsequent ones as may be disputed and taken to a contested case hearing. Even though applying for jobs can now be done on-line, the worker can prove his search by submitting a copy of applications submitted and attach them to the DWC-52 for review by the carrier and the agency for credibility. He can show that he is participating with the TWC. He can accept a carrier’s offer to participate in vocational rehabilitation. These methods will result in a meaningful, active job search—a search most likely to bring a job offer and return the worker to gainful employment.
This is, after all, the goal of the Labor Code. SIBs are to provide a bridge to support a worker returning to the workforce to the extent he is able. It is short-sighted for workers to forego the resources available to them for finding work. This is because even if they manage to get a regular check from the carrier for the entire SIBs period, the benefits will end 401 weeks from the date disability began, leaving the worker without income.
A job is a much more reliable and meaningful outcome of the SIBs process, and is what the Texas Legislature intended.
Editor’s note: Jane Stone and David Swanson of the Firm represent Accident Fund Insurance Company of America in this case.
Copyright 2023, Stone Loughlin & Swanson, LLP